Oklahoma Criminal Defense Blog

The federal government has been chasing award-winning former baseball pitcher Roger Clemens since 2007 with a swarm of investigators and prosecutors.  Ninety agents worked on the case and 200 interviews were conducted.  After one jury was stopped due to a prosecution miscue that caused a mistrial, the second jury trial poured out testimony from 40 witnesses over 7 weeks.  The trial concluded a few weeks ago with a jury verdict of not guilty on all counts.

Having faced one count of obstructing Congress, three counts of making false statements and two counts of perjury, all arising from his alleged use of performance-enhancing drugs and his denials under oath to a Congressional committee, Clemens walked out of the courtroom a free man.  Why Clemens ever testified before Congress in 2008 was a mystery to me.  He did not have to appear, but when he did, he testified to a House committee that it was liquid vitamin B-12 and lidocaine with which Brian McNamee,  his former strength coach, had injected him.  But Brian McNamee testified to the same committee that he had injected Clemens with steroids and human growth hormone, both banned performance-enhancing substances. So, to prove perjury, the government had to prove Clemens lied about what actually happened with those injections.

While wondering why Clemens volunteered to stick his head in this noose, let us also wonder why the federal government has gone so long and squandered such resources on sports doping. Reports are that the government has spent $50 million for its investigations of doping for all sports figures over the last few years, this in middle of a slump in the economy.  Yes, the public is entitled to integrity even in its sporting events, but how much are we willing to pay?

Two witnesses against Clemens that were vital to the government’s case had serious weaknesses.  Brian McNamee was the chief witness for the government as the only person who claimed to be an eyewitness.  In fact, McNamee claimed to be the person who injected Clemens with prohibited substances.  In his 24 hours of testimony given over 5 days on the witness stand, McNamee  claimed he had kept a needle and medical waste from one his injections of Clemens in 2001 in a Miller Lite beer can.  But he also said he kept in that can leftovers from injections of other players.  McNamee could not explain how the leftovers from the other players got into that same beer can.  Under cross-examination, he admitted he never told the government agents about putting the materials from the other players in the same can.

After the verdict, jurors said they thought it was devious of McNamee to secret this personal medical evidence in beer can for years.  The jurors also confirmed that McNamee had too many consistencies. The jurors did not believe McNamee’s claim that he had preserved from the incident and kept it in beer can for 7 years. He admitted he initially lied about his involvement with steroids.  Clemens’ criminal defense lawyer painted McNamee as a chronic lier, the jury agreed, and that spelled doom for the government’s case.

Clemens’s criminal defense attorney raised numerous unsavoury personal details from McNamee, that he had tampered with a dead body when he was a New York City policeman, he lied to investigators looking into a Florida incident in 2001, that he had two driving-under-the-influence arrests in 2002, and that he got caught up in an Internet fraud investigation after ordering diet pills over the Web in 2004.

The other important witness for the prosecution was Andy Pettitte, Clemens’ long-time friend and teammate.  Pettitte testified to hear an admission by Clemens, the next best thing to an eye witness. Pettitte testified Clemens acknowledged to him in 1999-2001 Clemens had used HGH, a growth hormone.  But then, every criminal defense attorney’s dream, on cross-examination, Pettitte backed up and admitted he was not sure now what Clemens had said those many years ago and admitted it was fair to say there was only a “50/50″ chance he misunderstood Clemens.  Unlike McNamee, Pettitte had no fleas on him and had no apparent motive to lie about his friend, Clemens.  The government lawyers knew they had problems with McNamee, but Pettitte’s cratering was surely unforseen.

So the government’s case went from one eyewitness and one admission from the defendant to none of the above, and the hard tip of the government’s spear turned out to be marshmellow.  No wonder the jury had reasonable doubt about Clemens’ guilt.

There is a push to raise the security classification of hydrocodone.  Law enforcement claims it is the second-most abused drug and wants to make it more difficult to obtain the painkiller pill because of that abuse.  Hydrocodone is now classified as a Schedule III drug, and can be refilled up to 6 times without a visit to the doctor, and a doctor can renew the prescription by fax or phone.

If raised from a Schedule II to a Schedule II drug, like oxycodone, hydrocodone would have to be kept under lock and key.  A patient has to to present a prescription bearing the doctor’s original signature on it to obtain a Schedule II drug, and a pharmacy can give a patient only one bottle at a time.

Emergency room visits related to non-medical use of hydrocodone increased nationally from 19,221 to 86,258 in the years 2000-2009.   In Florida alone, hydrocodone reportedly caused 910 deaths between 2003 and 2007.  According to DEA reports for the country, police drug labs have found pill seizures of hydrocodone second only to those of oxycodone, e.g., OxyContin and Percocet.

The increase in hydrocodone’s schedule would ordinarily be the concern of the DEA (Drug Enforcement Agency) and the FDA (Food and Drug Administration).  The agencies would enact a change in their administrative rules to effect the change, but the agencies have been studying the issue for 12 years.   But law enforcement wants the change, so its agents have gone around the agencies to lobby Congress directly.  The signatures of 58 members of Congress appear on a bill to enact a bill in Congress without any rule changes from the agencies.  It is unclear whether Congress would actually vote for that bill.  Having 58 members onboard is a long way from 535 members or half of them, 267.

Celebrity deaths resulting from hydrocone abuse have helped the public relations campaign to make the drug harder to get.  Actors Heath Ledger, Corey Halm, and Brittany Murphy all died from overdoses of drug cocktails that included hydrocodone.  The president of the Institute for Behavior and Health, a think tank, has expressed its support for the increase in scheduling of the drug.

Hydrocodone was originally placed in Schedule III in 1970, when it was used as a cough suppressant.  It’s use has changed, and it’s now commonly used as a painkiller.  And as users find other painkillers, like oxycodone, hard to get, they are turning increasingly to hydrocodone.

Making the drug harder to get, raising the schedule to Schedule II, would cause significant inconveniences and difficulties to many patients who use hydrocodone legitimately, like having to travel to the pharmacy every time they need to pick up their prescription, perhaps miles every trip.  These patients are dealing with real pain.  Those who suffer from neurological diseases depend on hydrocodone to carry on with normal lives.

And doctors, whose prescriptions of scheduled drugs are all tracked by law enforcement by monthly reporting, are already looking over their shoulders.  Some patient say doctors are so afraid the FDA is going to come after them, the doctors are too stingy with, or outright refuse to prescribe, Schedule II drugs.

First, it was Barry Bonds.  Next, it is Rogers Clemens, and, after that, maybe Lance Armstrong.  The cost to the federal government so far, including the investigation of BALCO (Bay Area Laboratory Co-Operative), is over $50 million.  Whether it’s worth that brings different responses.   Proponents insist it is worth it for the “integrity of sports” or perhaps for the “integrity of the justice system,” since the government ended up taking Barry Bonds to trial on perjury that had been committed during the investigation.  Similarly, Roger Clemens will be prosecuted for perjury committed in his voluntary giving testimony to Congress.  Opponents insist the $50 million (and counting) could be well used at catching real criminals or otherwise spent by the federal government.

The investigator who has made it all happen is Jeff Novitsky.  He is now employed by the Federal Drug Administration’s Office of Criminal Investigations, but he was an IRS agent when he began the investigation of BALCO and famously searched the dumpster outside its company headquarters in Burlingame, California.  Novitsky has been digging for nine years now.  Until the Barry Bonds trial, Novitsky had succeeded in convicting ten of the eleven charged from the BALCO investigation, including a confession from Olympic sprinter Marion Jones.  Bonds was convicted on one count of perjury, the jury having hung up on three other counts.  There is strong speculation that the trial judge in Bonds’ case will not sentence him to hard time, however.

Novitsky served a subpoena on the laboratory that tested the confidential drug results from Major League Baseball, showing he is willing to squeeze the privacy of anyone whom he perceives as bad guys or anyone at all who can fit into his quest for evidence.  Criminal defense lawyers are well-acquainted with law enforcement heroes who will are willing to “whatever it takes.”   And that is a dangerous attitude to take for those with all the power possessed by federal law enforcement, dangerous to citizens, that it.  Maybe Novitsky is not that dangerous, but you might have a tough time convincing the baseball players as they watch leaks in the press about who failed those “confidential” tests.  Major League Baseball and the player’s union are still fighting to keep these results confidential, notwithstanding those leaks to the press.

Some question the use of the Federal Drug Administration to prosecute the use of steroids by professional sports participants as not even a “danger to the public health.”  Only one U.S. Representative has raised significant questions in hearings before the Congress about Novitsky’s unending investigations, but now Novitsky may get help pursuing Armstrong from other agencies, like the I.R.S., the F.B.I., the D.E.A.  INTERPOL may even get involved.

One angle of investigation the government may take against Lance Armstrong is whether he or his teammates misappropriated money from their team sponsored by the United States Postal Service in 2002 -2004 to purchase performance-enhancing drugs.  That could lead to charges of fraud and illegal importation.  Former Postal Service teammate Floyd Landis has allegedly said the team sold 60 new bicycles to finance the purchase of steroids, and Landis is allegedly in contact with Novitsky.

One area of concern to a criminal defense lawyer is that both Barry Bonds was, and Roger Clemens is, charged with perjury that they could have avoided.  Barry Bonds could have insisted on immunity before testifying to the grand jury before which he was convicted of perjuring himself.  Similarly, Roger Clemens did not have to testify before Congress without immunity.  Surely his criminal defense attorneys told him that.  But Clemens did testify, without a grant of immunity, and he will face trial next month for perjury in that testimony to Congress, in denying he took steroids.

Although the statute of limitations on Armstrong’s activities has or will soon run, all the government needs to do to restart the statute is to issue another subpoena and get a new piece of evidence for a new count.  At least Armstrong has been smart enough not to volunteer to testify.

But now there is a new wrinkle the government is investigating: witness intimidation.  Just this month, the F.B.I. requested surveillance video from a restaurant in Aspen, Colorado.  The bureau wants to know more about a confrontation between Armstrong and his former teammate, Tyler Hamilton.  Hamilton testified last year to a federal grand jury in Los Angeles, and he appeared on a television program telling about a systematic scheme for using dope by the U.S. Postal Service team.

Armstrong has a house in Aspen and is a regular at the Cache Cache restaurant there.   According to Hamilton’s lawyer, Armstrong held out his arm to block Hamilton and began berating him.  It was Hamilton’s lawyer, Chris Manderson, who called the F.B.I. about the incident, quoting Armstrong as saying, “We’re going to destroy you on the witness stand and we’re going to make your life a living hell.”

However, according to the Jodi Larner, co-owner of the restaurant, Armstrong spoke to Hamilton but never left his barstool.   Tony DiLucia, a patron standing next to the two of them, said he could not hear what was said but could tell from the body language that things were not combative.  He said he nothing aggressive.

Larner later on that evening told Hamilton he was not welcome to come back to the restaurant because his group did not tip their server.  The next day she received threatening voicemails because she had stood up for Armstrong the night before.

Often when law enforcement officers stop a vehicle on the highway, they will use a drug dog to sniff the vehicle to establish probable cause to justify their subsequent manual search.   The reliability of that dog then becomes a fact question as to whether that search was legally justified, since the search was based upon what the law enforcement officers claim the dog “told” them about the vehicle to lead to the officers’ search.

In Oklahoma, the Council on Law Enforcement Education and Training (CLEET) licenses canine teams (a dog and a handler) to operate as “drug detection dogs.”  This is the same agency that trains and licenses bomb dogs and all state-licensed law enforcement officers.

The drug dogs must be certified and then recertified annually.  What standards are used?

(b) (a) Testing for certification of CDS detector canine teams shall be conducted by qualified persons agents of the Oklahoma Bureau of Narcotics and Dangerous Drugs (OBNDD), and/or their designees, who have successfully completed an appropriate course of instruction, or who are currently certified in the training and handling of CDS Detector Dogs by the United States Custom Service.
©) (b) CLEET shall publish specific standards and guidelines governing the training and certification of canine teams. The standards and guidelines shall have the same effect as the rules published herein. Certification trials and testing criteria shall be consistent with the CLEET standards currently utilized developed for the certification of CDS detector dogs.
(d) ©) CDS detector canine teams shall be certified only in the detection of controlled                    dangerous substances for which the dog passes the certification test.
(e) (d) CLEET relies on the test reports of OBNDD or their designee conducting the test for the purpose of determining whether the canine team passed the certification test.

This rule was changed.  Subsection (d), above, used to require “canine teams be certified only in detection of controlled dangerous substances for which the dog “scores an eighty percent (80%) higher ‘find rate’, and not more than a twenty percent (20%) ‘false response’”.  When subsection (d) was changed, subsection (e) (above) was also added to provide that CLEET may simply rely on OBNDD, but OBNDD has no published rules or guidance with any objective standards.

Since the privacy of our citizens and the integrity of the Constitution are at stake, it is important to know by what standards these dogs are trained.  But our government has decided to deliver this power to search into the hands of law enforcement officers without any standards.

In conducting a search, the police officer typically walks the dog around the vehicle, and the  dog is supposed to give a signal to the handler that the dog smells drugs.   It is the handler who testifies – under oath – what the dog did and why it should justify the handler’s resultant search of the citizen’s car.   Predictably, the handler will parrot the things he was told to say in his training and to minimize or forget anything suggesting he coached the dog, but the reliability of the dog’s actions are all issues of fact for the prosecution to prove and for the criminal defense lawyer to inquire into.

What behavior the handler observed in this case is strictly up to the handler to tell, as he chooses to tell it.  When my clients tell me, as they tell other criminal defense attorneys, the handler had to run the dog around the car ten times or the handler was banging with his fist on the side of the car, the handler never remembers these things or denies them outright.  These events may or may not be on video.  Events recorded seem to be those things that help the prosecution, and the things with gaps in the recording usually appear in areas in which the credibility of the law enforcement officers is most critical.

The dogs are trained to smell certain drugs, and their noses are reputedly really good.   Dogs are supposed to be able to smell things regardless of how things are hidden, wrapped, and disguised with other smells.  Even shirk-wrapping does not prevent the smell from reaching outside, so additional smells are used to mask the smell with something like Fibrous or dryer sheets.

As one can read from the standards set in Oklahoma, there used to be a standard by which to judge a successful performance of a drug dog in order to certify it.  Now, there is no objective standard.   And Oklahoma is not the only state with this problem.  Incredibly, most states have no objective standard for performance.

Recently the Chicago Tribune did a study of drug dogs in Illinois.  It found that the data showed the dogs were wrong more often than they were right.  The dogs were trained to dig or sit when they smell drugs, but a study of suburban police departments showed only 44 percent of the alerts led to drugs or drug paraphernalia.  For Hispanic drivers, however, the success rate was only 27 percent.

Observers point out that many canine teams (dog and handler) are poorly trained and likely to obtain false alerts, which lead to baseless searches.  Leading a dog around a vehicle too many times or spending too long examining a vehicle can cause a dog to give a signal for drugs where there are no drugs.    Some believe the indignity of the police tearing their car apart is more invasive, frightening and humiliating than the airport frisks and scans that have raised such a stir.

Law enforcement departments very rarely keep data on the number of alerts so that the number of false alerts cannot be determined.  If a drug dog alerts correctly only 4% of the times he alerts, how can that constitute “probable cause” to justify a police search?  Of course, a false alert that finds no drugs never gets to a judge, so those searches, which average a half hour, never come to anyone’s attention.   And you can bet the police officer on the witness stand, knowing there is no data to contradict him, will have a selective memory about any mistakes his dog has made.  As usual, it is up to the criminal defense attorney to drag the truth out of reluctant witnesses.

After an 8-year investigation, a 12-day trial with more than two dozen prosecution witnesses presented and finally 4 days of jury deliberation, the United States government finally obtained a conviction of Barry Bonds, but just barely.  The jury convicted Bonds of Obstruction of Justice but could not reach a verdict on the other three counts tried.    U.S. District Judge Susan Illston declared a mistrial on those counts on which the jury could not reach a unanimous verdict.  Whether the government will take those counts to another jury has not been announced.

The Department of Justice investigation of the Bay Area Laboratory Co-Operative (BALCO) illegal, trafficking in steroids led to Bonds’ indictment in 2007.  During that investigation, Bonds appeared before the grand jury in 2003, and he was acdcused of lying to them in his testimony.  Bonds testified to the grand jury he never knowingly used performance-enhancing drugs.  He admitted having taken steroids but said Greg Anderson, his personal trainer, had told him they were flaxseed and arthritis cream.

Bonds did not testify on his own behalf or present any other witnesses at this trial.  Observers speculated indicated Bonds’ criminal defense lawyers’ this indicated confidence in the weakness of the government’s case, but such a decision can be made for other reasons.  That is the kind of intuitive judgment call lawyers have to make in the flow of the trial, and one which can sometimes be critical.

Bonds’s indictment came in 2007, 50 days after he made his last appearance in the batter’s box and 100 days after Bonds bettered Hank Aaron’ 755 career home run record with 762 home runs as a member of the Pittsburgh Pirates and the San Francisco Giants.  Bonds had already set the Major League Baseball season record when he hit 73 home runs in 2001.

Whether Bonds will serve any prison time is doubtful, assuming the conviction withstands appeal, in light of how this judge has sentenced others from this investigation.  Judge Illston sentenced Greg Anderson in 2005 to 3 months in prison and 3 months home detention upon his plea of guilty to one count of money laundering and one count of distribution of steroids.  He was then jailed for about a month until the conclusion of the trial for contempt of court, namely for his refusal to obey the judge’s order to testify against his life-long friend, Barry Bonds.  Regardless, whether Bonds does time, his chances of ever reaching the Baseball Hall of Fame took a serious hit, regardless of his records, including winning the Most Valuable Player award for an unprecedented seven times.

The investigation hit the headlines when I.R.S. agents raided BALCO and Greg Anderson’s condominium in 2003.  They seized evidence of what agents claimed showed conspiracy to distribute designer steroids that were undetectable even in the latest drug tests.  As time went, 4 sports figures, including Olympic sprinter Marion Jones, and 6 steroid dealers were convicted.  Major League Baseball hired retired U.S. Senator George Mitchell to investigate, and his report identified 86 ball players who were users of outlawed drugs.

Jeff Novitzky, the federal agent who started the investigation of BALCO, wanted the BALCO probe to be widened, but the Ninth Circuit U.S. Court of Appeals ruled last year that the urine samples and records seized in 2004 of 104 baseball players were seized illegally.  Novitzky was also instrumental in the developing the government’s case against Roger Clemens, the record-setting baseball pitcher who is scheduled for jury trial for lying to Congress about his use of performance-enhancing drugs and for investigating pro cyclists, including Lance Armstrong.

The U.S. Supreme Court has issued an opinion that helps defendants at sentencing in federal courts. Since 1984, the sentencing powers of district judges has been limited by the Sentencing Guidelines, thanks to enactment of Congress in the Sentencing Reform Act.

Most significantly, the Court in the decision styled Peppers vs. United States reversed the Court of Appeals, holding that a defendant’s rehabilitation after sentencing may be considered in a subsequent sentencing.  The opinion also reminded Courts of Appeal that the character of the defendant is just as important in adjudging a a sentence as the character of the offense.  That is significant indeed for criminal defense lawyers who have labored so long under the prosecution- helpful Sentencing Guidelines.

Defendant Jason Peppers had pled guilty to possession of over 500 grams of methamphetimine, an offense that carried a mandatory minimum sentence.  However, since Peppers had essentially no criminal history, he qualified for the “Safety Valve” provision for defendants who are in the zero criminal history category.   Moreover, Peppers lent significant cooperation and assistance to the government,  giving the government information about others involved with drugs and guns in the case.    As is usual in such a deal, the government filed a 5K letter with the district court.  As to an appropriate sentence for the court to assess, the government urged a lesser sentence than called for by the sentencing guidelines and specifically urged a 15% downward departure from a sentence calculated from the Sentencing Guidelines.

District Judge Mark Bennett went further, however, departed downward 75% from the Guidelines calculations and sentenced Peppers to a 24-month sentence.  This the government did not like.  The prosecution appealed the sentence to the Eighth Circuit Court of Appeals, which reversed the sentence on the basis of the then-recent Booker decision from the U.S. Supreme Court.  The matter was remanded back to Judge Bennett to render a new sentence.

At the second sentencing hearing, Judge Bennett considered evidence of Peppers’ rehabilitation since the original sentence.  The court heard the testimony of three witnesses.  Peppers himself testified to the significant progress he had made in his life since the original sentencing, a long-time drug addict, he completed one the many excellent federal drug rehabilitation programs while incarcerated and since had enrolled in college while employed part-time.  Peppers’ father testified that he had had no contact at all with his son for the five years before his arrest but since had witnessed a complete change in his son, with whom he had reestablished his relationship.  Finally, Peppers’ probation officer testified to Peppers’ compliance on supervised release, submitted his own sentencing memorandum to the court and even testified that a 24-month sentence was appropriate in this case.  Judge Bennett then issued once again the sentence he originally issued: twenty-four months.

Once again, the government appealed the judge’s sentence to the Court of Appeals, which Court decided Judge Bennett had abused his discretion in rendering this sentence and had in particular impermissibly considered Peppers’ post-sentencing rehabilitation in setting the sentence.  The Court of Appeals then reversed, sent the case back to the district court but took the unusual step of assigning the case to some judge other than Judge Bennett for a third sentencing hearing.

Not surprisingly, the newly-assigned district judge in his resentencing rejected any consideration of Peppers’ post-sentencing rehabilitation and sentenced Peppers to 65 months in custody.  Peppers, by then out of custody, was returned to custody to begin serving his new sentence.  Now it was Peppers’ turn to appeal the sentence.  The Court of Appeals predictably affirmed Peppers’ increased sentence, and Peppers appealed further, this time to the Supreme Court, with a petition for writ for certiorari.

Before the Supreme Court, the government promptly confessed error on the issue of the district court’s ability to use post-sentencing rehabilitation in considering a sentence.  The Supreme Court then appointed an amicus curiae to argue that issue alone in the appeal.  Clearly the Supreme Court wanted to decide this issue.

The Court ruled that it was error for the district court to reject categorically the evidence of petitioner’s post-sentence rehabilitation.  The Court of Appeals had relied on the Sentencing Guidelines in rejecting this evidence because the Sentencing Guidelines directed courts not to consider such evidence.

Justice Sotomayor, author of the majority opinion, criticized this exclusion and pointed to the sentencing statute, U.S. Code, Title 18, Section 3661, which directs consideration of any limitation on relevant information without limitation.

In a concurring opinion, Justice Breyer, long a promoter of the Sentencing Guidelines and even a former Sentencing Commissioner, wrote that the Commission erred in excluding postsentence considerations from the Sentencing Guidelines.  Bryer pointed out that the sentencing statute, Section 3661 of Title 18, prevents any limitation on relevant information a court may consider at sentencing.  Justice Breyer justifies its exclusion as a decision by the Commission that such evidence is not relevant.  He went on to point out the Sentencing Reform Act specifically rejected the practice before 1984 of tailoring a sentence to the individual, instead balancing the need for individual sentences with the need for uniformity in sentences.   That may be where we are headed, to the detriment of uniformity in sentencing, but likely for the benefit of individual defendants at sentencing.

The prosecution of present and former Tulsa police officers inches closer to jury trial.  U.S. District Judge Bruce Black, from New Mexico and sitting in the Northern District of Oklahoma in Tulsa, has ruled the indictment against Tulsa police officers Nick DeBruin, Bruce Bonham and Harold Wells may proceed to trial and overruled pretrial motions by the defense.  Wells is retired from the police department.

The judge has set their trial on May 20.  Set in June is a related indictment against others arising from the same sting, an indictment against Tulsa Police Officers Jeff Henderson and Bill Yelton.
Henderson and Yelton, both are accused of multiple counts, Henderson on 58 counts and Yelton on 7 counts, respectively, including civil rights violations and witness tampering, Henderson’s including attempted bribery and Yelton’s including witness retaliation and suborning of perjury.  Both are still on the police payroll but suspended with pay, and both are held in jail pending trial.  DeBruin was indicted on 6 counts, Bonham on 5 counts, and Wells on 10 counts.  All have been released on bond.  DeBruin and Bonham are still on the Tulsa Police Department payroll while suspended without pay.  Wells is retired from the department.

The case began when a woman named Debra Clayton who had been an informant for Tulsa Police officers.  Heretofore identified in court documents only as “informant No. 2″, Ms. Clayton has now made her own name public.  A drug user claiming to have finally gotten off drugs now, she had been an informant for former officer John Gray and A.T.F. agent Brandon McFadden for some time and got tired of their continuing to pressure her to continue to participate in selling or delivering methamphetamine.  Eventually, she called the F.B.I. and told them what Gray and McFadden were up to.  The F.B.I. then set up a sting operation.  Gray and McFadden have pleaded guilty and are listed as government witnesses in both indictments.

The F.B.I. sting was set up at the Super 8 Motel on East Archer Street in Tulsa.  Video and audio recorders were set up to record the events inside the motel room.  An undercover agent posed as a drug dealer  When he was arrested his cash was seized by the arresting officers.  He had $15,000 in cash, $5,000 of which the police defendants are accused of stealing, for which they are accused of stealing government funds.  Some of the accused noticed government surveillance of the motel room, so they returned cash to the motel room.  However, defendant Bruce Bonham had already taken home the $5,000 cash before the others were alerted.  The remaining police officers accused met at a Conwy Island hot dog stand to discuss their problem and try to get Bonham’s cash back.   They were too late.

There were 2, 760 women in Oklahoma prisons in 2010.  Of that number, 1,744 or 63% were in need of substance abuse treatment, but programs are not available for them.  Education programs are even more scarce.   A substance abuse treatment program requires 4 to 12 months to complete.   Of the 885 women inmates released last year, only 28% of those who needed such a program had done so.

Substance abuse programs have a budget of $611,404 from state, federal and private funds.  Of that total, federal funds are $161,050 and $200,314 come from the George Kaiser Family Foundation.  The state must match any federal contributions

About 71% of women coming into prison need general education.  That is defined in terms of Department of Corrections programs as literacy, adult basic education and the GED (General Education Diploma).   There were 1,500 who did participate in one or more of the general education programs.

Inmates also have access to programs sponsored by Career Tech rather than the Department of Corrections.  Last year, 329 women participated in their programs in the electrical and manufacturing trades.  Inmates are discouraged from pursing the health and some other fields because of employment restrictions on those with felony convictions.  Of these, 222 completed their program, 82 are still working on it, and 22 did not complete it.  Incompletion can result from disciplinary action but also from transfer, discharge or parole.

Courses in manufacturing and computer skills are the most popular.  Manufacturing includes learning inventory and warehousing.

The Department of Correction spends $74,000 a year for basic education classes.  Career Tech spends $5.7 million on skills courses for all inmates, of which $627,513 is spend on programs for female inmates.  Male inmates makeup 90% of the total prisoner population in Oklahoma.

Every criminal defense attorney knows that substance abuse programs and education programs, especially literacy, cut recidivism.  Warehousing prisoners just prepares them for the next cycle back into  prison.  It’s always a question of money, of course.  But fitting a 13 month sentence into a 12 month program is a problem as well, when the first 2-3 months of the sentence are taken up with initial processing.   Thirteen months is the average sentence for a non-violent offender, which is what most drug offenders are, and, as noted above, it takes from 4 to 12 months to complete a substance abuse program.  So it’s not just money.  But the money is never there.

She is 25 years old and has children 1, 3, 4, and 9 years old.   She has never been arrested before, but she sold marijuana one time, so she’s headed to prison.  Too harsh?  She certainly thinks so.  She was startled at the sentence she received.

Patricia Spottedcrow lived with her husband, 4 children and her mother, Delita Starr.  She sold $20 worth of marijuana to someone who was an informant for the police.  Two weeks before that, the informant had come to the home to buy marijuana.  On that earlier occasion, it was Starr who sold the informant $10 worth of marijuana, a “dime bag.”  At that sale,Starr directed her 9-year-old grandson to fetch the marijuana.  Thereafter, both Spottedcrow and Starr were arrested and charged in Kingfisher County District Court with distribution of a controlled dangerous substance, marijuana.  Added to those charges, both were charged with possession of a controlled
dangerous substance in the presence of a minor.

When they got to court, Spottedcrow decided to decline the District Attorney’s plea bargain offer of a two-year sentence, two years in prison.  Spottedcrow, after talking it over with her lawyer, thought her clean record and the small amount of drugs involved ought to give her a chance at probation.  Thus, she turned down the offer to agree to a sentence and threw herself on the mercy of the court.  She “pled blind,” that is, she pled guilty without any limitation on the high or low end of the sentence she could receive, so long as the sentence she received was within the range of punishment set out by statute.  That range is from 10 years to life imprisonment for the distribution charge.

Obviously, she believed her circumstances, perhaps including having young children at home, gave her a very good chance of probation.  Added to this, her sentencing was scheduled just before Christmas and the judge was due to retire a few days later.

The judge gave Ms. Spottedcrow a sentence of ten years in prison.  No probation.  Her 50-year-old mother, Delita Starr, received probation for 30 years, along with a fine of $8,600, making her available to take care of the children.   “Never in a million years did I think I’d be here 10 years,” Ms. Spottedcrow said later from Eddie Warrior women’s prison in Taft.  She said when she went to court for her sentencing she just knew she would receive probation.

That was the problem, She never seemed to take it seriously in the eyes of the judge.  Judge Suzie Pritchett, who retired last December and was not a harsh judge, said later she thought the sentence she gave was lenient under the circumstances.  She said, “It was a way of
life for them,” referring to Spottedcrow and Starr selling drugs.  Of course, that’s what the drug agents often tell judges.  But it is clear these were not the only sales the two had made.  Both sales were made by a confidential informant, meaning that the sale was set up in advance, which means the police already had information they had already been selling.  Otherwise, they would not have had a reason to set up these two controlled sales. And after acknowledging that suspended sentences are often given in cases involving first time offenders, the judge also said:  “When kids are involved, it’s different.”  The children in this case, because they were present and even involved in the sale, did not help Ms. Spottedcrow get a lesser sentence.

As usual when a judge is the one to make the decision on what sentence a defendant should receive, the judge in this case ordered a presentence investigation and report to be made.  As part of that, the probation officer who writes the report interviews the defendant about what happened.   The report in this case reported, “It does not appear the defendant is aware a problem exists or that she needs to make changes in her current behavior.. and she makes justifications for her actions.”

As any criminal defense lawyer will tell you, that is the absolute last thing a defendant wants a judge to read.  It is fatal for a judge to believe that a defendant does not accept responsibility for her actions or is not contrite.  That means she not just sorry that she got caught, especially when the judge is in a position to give a maximum sentence.

If there were any doubt whether Ms. Spottedcrow had taken serious the sentence she was facing, any doubt whether she had gotten the message, a discovery immediately following her sentencing ended such doubt.  As Ms. Spottedcrow was led away from the courtroom to the jail, a deputy sheriff searched her pockets and found marijuana in Ms. Spottedcrow’s pocket.

There is a budget crunch in state government so every agency is looking to save its budget.  The Oklahoma Bureau of Narcotics and Dangerous Drugs is no exception.  Director Darrell Weaver has just announced a “spike” in drug deaths in Oklahoma.  He calls it a crisis.

There were 577 who died of drugs in 2009.  Hydrocodone (Lortab) led the list as cause of 130 deaths, an increase of 17 deaths from the year before.  Oxycodone followed wit 117, then methadone, which lead the list in 2002, caused 84 deaths in 2009, but it was down from 110 deaths in 2008.  Cocaine caused 37 deaths, a decrease of 13 from the year before.

The use of different usage drugs and deaths caused by drugs will vary and certainly the use of drugs has been increasing in the last several years.  But why does that justify a separate agency to enforce the drug laws?    Every police officer, every deputy sheriff, every highway patrol trooper and town marshal and Oklahoma State Bureau of Investigation agent is enforcing the drug laws every day.   If that isn’t enough, there are many federal law enforcement officers in the state of Oklahoma, including the F.B.I., who enforce the federal drug laws, which mirror state drug laws.  So why does Oklahoma need a separate agency with a separate budget, separate buildings and salaried employees and pensions dedicated to enforcing the drug laws?  Of course such an agency is always pushing the emergency alarm, calling for higher penalties and more money for their agency.

The drug war is similar to the military war fought by our national defense.  There is always a fear of invasion just as there is a fear of drug crazies running around the country.  There is always to announce a “crisis.”  The fears are real because the dangers are real, but the manipulation of this fear and threat is a very old bureaucratic trait.  There is no such thing as enough tax-payer money going to feed that will feed either the defense department or the drug agencies.  They have become empires unto themselves, and anyone who has any pause in giving them everything they ask for is tarred as unpatriotic.

Notwithstanding there is a real danger from the misuse of drugs, that danger need not necessarily be attacked like a military target.  If it is, that approach may remind observers more of the quagmire in Vietnam more than World War II: always more money needed, always more troops needed, but always more explanations and alibis instead of success.  Victory is just barely out of reach- always.  Just give us another 12% increase of funding and we’ll lick this thing for good.

Part of the problem is that the Oklahoma Bureau of Narcotics and Dangerous Drugs is almost oriented almost exclusively for punitive action, for “law enforcement.”  This has not proved to reduce the use of drugs any more than the American military had the prospect of outlasting Ho Chi Minh.  Drug education and prevention is given only superficial investment even though some different approach, like education and some new looks at prevention will be needed if we are going to seen anything different in the next decades.

Why don’t all the millions of dollars of cash money that flows to the Oklahoma Bureau of Narcotics and Dangerous Drugs every year from forfeitures go to drug prevention instead of more automatic weapons, bullet-proof vests, bullets, and black SUVs instead of to teaching children the perils of using drugs without threatening them?  At least going through the motions keeps the empire in business.