12/01/13 Clay Conrad

Cultural Baggage Radio Show

Clay Conrad Atty/Author of Jury Nullification the Evolution of a Doctrine + Portland Rpt on "dabbing", Mich parents joy on return of daughter, CBC Rpt on Commercial growers replacing home grown, "The Doctors" call for immediate studies of cannabis as medicine

Audio file


Cultural Baggage / December 1, 2013


Broadcasting on the Drug Truth Network, this is Cultural Baggage.

“It’s not only inhumane, it is really fundamentally Un-American.”

“No more! Drug War!” “No more! Drug War!”
“No more! Drug War!” “No more! Drug War!”

DEAN BECKER: My Name is Dean Becker. I don’t condone or encourage the use of any drugs, legal or illegal. I report the unvarnished truth about the pharmaceutical, banking, prison and judicial nightmare that feeds on Eternal Drug War.


DEAN BECKER: Thank you for joining us on this edition of Cultural Baggage. The drug war is ending – slow, ugly and bloody. We could sure use your help but let’s get to it.


CLAY CONRAD: My name is Clay Conrad. I’m an attorney here in Houston with Looney & Conrad, P.C.. I’ve been working on jury issues since before law school, studying the history of the jury, how the jury system developed. My book, “Jury Nullification the Evolution of a Doctrine” came out in 1998 originally. It was just republished by the Cato Institute last month.

DEAN BECKER: Jury nullification has a huge history. It was abused in many cases in prior times during slavery, racial bias in the old south in particular. There is a positive side to it. Tell us the potential for jury nullification.

CLAY CONRAD: First let me talk about the abuse that you speak of because I think the stories of its abuse are grossly exaggerated. The jury has power. It has discretion and like any other discretion that can be abused. Just like the discretion of police officers, of judges, of prosecutors can be abused.

The jury is a deliberative body. You take 12 people hopefully from different sections of the community and they all have to agree to come to a decision. If you have a fairly selected jury the chances of racial bias or bigotry caring the day are pretty small.

The other thing is those cases in the deep south that you refer to – the lynching and civil rights murder cases – very often involved prosecutors who didn’t want a conviction, police officers who didn’t want a conviction, judges who didn’t want a conviction and then after there was an acquittal they all blamed the jury for the outcome and the jury broke up and they never were in a position to respond.

When I looked into individual cases I found, for instance, in the Medgar Evers murders there were police officers who testified that they saw Byron Dillenbeck with the killer something like 200 miles away at the time when Meager Evers was getting himself killed. You can’t turn around and blame the jury after they’ve had that kind of testimony come into court.

In another case the prosecutor advised the jury that the evidence wasn’t very strong and didn’t merit a conviction. That was a case out of Pennsylvania. In another case I found the coroner testified that the victim died in a traffic accident and the that the lead pellets in his face were just dislodged dental fillings. Now they don’t use lead in dental fillings but that’s what the coroner testified to.

So we have all of these cases and then the jury gets blamed for the outcome which was the only possible outcome under the law. Have there been cases where the jury has misbehaved? Certainly, juries aren’t perfect just like any other human institution isn’t perfect but I think they’re less likely to have done bigotry than prosecutors, judges or police officers are. They’re probably the most responsible actors in the system.

Now the second question is, “What does jury nullification have to offer us today?” I know that your focus is the War on Drugs. Juries have a long history in alcohol cases of refusing to convict. In the prohibition era as many as 60% of cases ended in acquittal. That’s particularly important because under prohibition manufacturing, distributing, and selling was all that was illegal. Possessing and consuming alcohol was perfectly legal under prohibition.

So you’re not talking about the users. You are talking about the dealers. You are talking about the manufacturers. 60% of the time the juries refused to convict.

If we had a 60% acquittal rate in marijuana possession cases it would be almost impossible to maintain the War on Drugs. If we had a 60% acquittal rate in all drug cases this nation’s drug policies would be changed by this time next year.

Juries are the most powerful actors in the criminal justice system. If they say not guilty the case is over and it doesn’t matter what any of the officials in the system say.

DEAN BECKER: I want to address the thought that you mentioned during alcohol prohibition perhaps 60% of those accused were acquitted by some type of jury nullification. I want to kind of bring that to the modern era where drug cases some 90 something percent of them are plea bargains. They never even go to trial. The jury never hears the evidence. Were we to take these to trial perhaps we could again generate a number of acquittals through jury nullification. Your thought, Mr. Clay Conrad?

CLAY CONRAD: As a lawyer the first thing you are going to look at is what is the acquittal rate that you’re getting through these cases right now. If juries started to acquit at an inordinate rate in marijuana possession cases more cases would go to trial. As more cases went to trial the desire of the state to prosecute those cases would go down. So we would see a change in policy almost immediately if juries started refusing to convict in those cases.

Right now juries are not saying no. They are not standing up and objecting to these prosecutions. It really only takes one juror to hang the trial to get a hung jury so it doesn’t take unanimity among the public in order for juries to make a difference. If we start seeing stubborn jurors refusing to convict in drug prosecutions we will see cases having to be retried over and over again which ties up the court, takes an enormous amount of resources. You will see a change in policy.

Juries have control over the system. They are the safety valve. Legal change is very slow as a rule. The laws change slowly - painfully slowly. Social change is faster. Society can change positions pretty quickly. Right now something like 58% of society thinks marijuana should just be legal. We’re not seeing that out of D.C. We’re not seeing that out of the state legislatures. Even in Texas we’re seeing a majority in favor of legalizing marijuana. Nationwide the numbers are over 80% that medical marijuana should be legal and we’ve only got one-third of the states that have legalized marijuana.

So legal change is not keeping up with social change. Juries can make the difference. Juries are sort of the safety valve. When social change has occurred and legal change is lagging behind the juries can let the steam off. They can say we’re not going to send more people to prison. We’re not going to ruin more lives enforcing laws that don’t protect society, don’t make us any safer and really just victimize the people who get caught in the crosshairs. Juries have that authority.

Even people who oppose jury nullification agree that juries can do that. They just think they shouldn’t but nobody doubts that juries can do that.

DEAN BECKER: Even in Texas we have some circumstance that hit the news recently about a judge who got upset with a jury. Do you want to fill us in on that one.

CLAY CONRAD: That was visiting Judge Jerry Ray up in Fort Worth. The jury had acquitted in that case because they didn’t believe the intoxilyzer machine was adequately reliable. The intoxilyzer machine estimates the blood alcohol content based on the amount of alcohol on someone’s breath.

In this case the defendant came up as .015 percent over the legal limit which is 3 parts in 20,000. The jury didn’t believe that the machine could be trusted beyond a reasonable doubt so they voted not guilty.

The judge was livid. He told the jury that they had violated their oath and that they had nullified and that they had done the same thing the O.J. Simpson jury had done. It just proves that the only people whom ignorance of the law is not punished is judges. Judges can get away with being ignorant of the law. He didn’t understand that the jury judged the facts, that the jury found the facts were not sufficient to justify a conviction. He didn’t understand what jury nullification is or why it is important or what role it plays either in practice or in history. He didn’t understand that his oath as a judge and the judicial code of conduct prohibit him from condemning and criticizing and lambasting a jury the way he did. His own actions were unethical. If there was anyone in that courtroom who wasn’t following the law it was the guy wearing the black dress.

DEAN BECKER: I don’t know if you are aware of this or if you recall but I believe it was Jeff Blackburn up somewhere in Odessa, Tulia, somewhere who was able to get a jury to nullify a marijuana arrest up there with the thought that the gentleman needed it for medical reasons. It can happen even in Texas, right?

CLAY CONRAD: It does happen. We see it occasionally. A lot of times juries find some evidence particularly unconvincing because they just find it so unpalatable. You never really know in any individual case whether the committed jury nullification. That was one of the real challenges in writing this book.

You can look at a lot of cases and you know if there’s a 60% acquittal rate that prosecutors are not getting that sloppy and that there’s some nullification going on. Any individual case it can be very hard to say whether the jury was unpersuaded or whether they just said no because the law was misapplied or unjust. It’s kind of a challenge but you do know that in a good portion of cases (some researchers have put it at 4%, some at 15%) but in a good portion of cases juries do decide to nullify the law because they find that’s it’s either unjust or unjustly applied.

If you factor in mistrials the numbers are probably higher – cases where the jury just couldn’t reach a decision, where they couldn’t all agree. There’s probably even a larger number of those that involves someone who just said, “I just cannot convict in this case.” It could be a drug case. It could be a 17-year-old with an underage girlfriend. A case of a battered wife killing or injuring her abusive husband in his sleep. There are just so many different scenarios that come to mind that even a good law could be misapplied and, of course, a bad law can never be properly applied.

DEAN BECKER: Once again we’re speaking with Mr. Clay Conrad. He’s authored of a great book that I urge you to check out, “Jury Nullification the Evolution of a Doctrine.”

Clay, my limited exposure in actual courtrooms kind of stifles my opinion here but I’ve seen it too often on TV where the district attorney tries to eliminate anybody who thinks that the law might be wrong and they actually set traps to try to keep them off the jury panel, right?

CLAY CONRAD: Well, certainly both sides try to keep off people that they know are going to vote against them. One of the biggest lies in the legal practice is that we all go up in front of the jury when a jury is being selected and say, “We all want a fair and impartial jury.”

Well, that’s not true. The prosecutor wants the jury that’s going to convict. The defense attorney wants a jury that’s going to acquit. The judge wants a jury that’s going to come back in time after lunch. But, we all want a jury that’s going to vote our way.

Let’s say that you are facing jury selection and you know about this doctrine. There’s two routes you can take. One is you can stand up and you can tell everyone who’s sitting in the room about it. That will really irritate the judge and will ensure that you will not get on the jury. They might dismiss the whole panel because they feel you’ve tainted the panel by letting them know about this “forbidden doctrine.”

Or you can keep your mouth shut, just answer the specific questions that have been asked of you and then there’s a pretty good chance you might get on the jury and really be able to piss the judge off.

DEAN BECKER: That brings to mind that we are starting to see surreptitious jury nullification in states like Colorado, California where the knowledgeable folks about marijuana or other drugs allow themselves to be chosen to make a difference. Each one of us has that potential, do we not?

CLAY CONRAD: Certainly. I think that one of the most ludicrous things in American education is the kids go to school and they’re taught all about the role of the president, all about the role of congress, all about the role of the courts but they are not taught anything about the role of the jurors. They are not taught the history of the jury system. They are not taught the purpose of the jury system. They are not taught how the jury system operates.

Very few of those kids are going to grow up to be the president, senator, congressman or judge. A lot of them are going to grow up to be jurors but they are not prepared for it. We see that fewer and fewer cases go to jury trial, fewer and fewer people show up when they get a jury summons. Most of them just ignore it. Fewer and fewer people are interested in serving as a juror.

It’s very predictable. If you don’t understand why something is important you are not going to value it. We haven’t taught kids this most American institution and why they should value it so now we have generations of people who think that jury duty is a nuisance and that the jury themselves can’t be trusted to make a logical decision or a rational decision so when you argue that the jury should have the ability to say no to unjust or misapplied laws they look at you as though you are crazy because they’ve been taught that jurors are idiots and the jury system is a nuisance.

That’s not what the founders thought. That’s not what the history is and it’s an institution that we need to resurrect to society so that the “people” can once again say, “These are our courts. These are our laws. We’re the last ones who make the decisions.”


It’s time to play: "Name That Drug - By It’s Side Effects!"

Agitation, paranoia, hallucinations, face chomping, lip eating, brain slurping, ecstasy, suicide, zombieism….


Time’s up! The answer according to law enforcement from some crazy-ass chemist somewhere – methedrone, otherwise known as bath salts.


DEAN BECKER: The following segment courtesy of KGW, Portland, Oregon.


JOE DONLON: You may not know about it but chances are your kids do. It’s called dabbing and it’s a growing trend in the way people are smoking pot.

TRACY BARRY: Instead of smoking the dried plant product producers are extracting the THC for a quicker and stronger high. Unit 8 Mark Hanrahan has been looking into the practice and joins us live in Vancouver with what advocates and supporters are saying, Mark?

MARK HANRAHAN: Well, Tracy, in just a few months you’ll be able to buy recreational pot from retail outlets here in the state of Washington - this mini-mart behind me hoping to sell marijuana in the coming months. Advocates expect that concentrates will be a hot commodity because it delivers such a powerful high but critics warn that smoking them is not without risks.

It’s been called pot’s most powerful high. Search YouTube for “Dabbing” and you’ll find a long list of videos – people putting marijuana concentrates on a heated surface and inhaling the smoke. A long time marijuana advocate magazine named High Times even dedicated it’s July cover to the practice.

DANIEL BURTON: It’s definitely exploded on the scene.

MARK HANRAHAN: At Mary Jane’s House of Vancouver manager Daniel Burton says the so-called rigs used to smoke the concentrates are selling quickly. The reason she says is simple.

DANIEL BURTON: It’s basically eliminating the plant matter and you’re just getting pure THC.

MARK HANRAHAN: Concentrates often referred to as “butane hash” or BHO are much more powerful.

DANIEL BURTON: You’re looking at about 75 to 100% concentrated THC.

MARK HANRAHAN: THC is the main mind altering ingredient in cannabis. For college student Eddy Radcliff the more THC the better.

[in interview] Why is it so popular?

EDDY RADCLIFF: Because you get so much higher so much quicker.

MARK HANRAHAN: Aside from a quicker, stronger high some advocates argue that dabbing is safer because you have to smoke less for the same results.

CHRIS KELSEY: If you do one dab it’s like smoking a whole joint by itself.

ANDY MENDENHALL: We see it as the “crack cocaine of marijuana”.

MARK HANRAHAN: Dr. Andy Mendenhall, an addiction specialist and the outpatient medical director in Beaverton. He views dabbing as a troubling trend.

ANDY MENDENHALL: People are experiencing extreme levels of reward and euphoria and that means that the brains of those individuals are more likely to become attached to those experiences.

MARK HANRAHAN: He worries about the long-term impact powerful concentrates may have on frequent users – especially teens and young adults whose brains aren’t fully developed.

ANDY MENDENHALL: The use and repeated use of a very strong substance that’s creating reward, that’s creating euphoria during a time of brain development it can’t help but have an effect on long-term mental health.

MARK HANRAHAN: While he urges caution the popularity of dabbing appears to be growing as smokers search for a stronger high.

We checked with the Washington State Liquor Control Border Agency spokesperson told us that he expects that concentrates will be allowed to sold at retail pot outlets on a limited basis when they get up and running early next year.


DEAN BECKER: The following story comes out of Lansing, Michigan. Marie Green became a certified medical caregiver in 2011 as a way to treat her husband’s, Steve, violent seizures. Her child, Bree who was 6-months-old, was removed from her home on September 13th after CPS felt that her parent’s had violated a provision in her state’s medical marijuana act. The issue stemmed from a 2011 home invasion in a nearby house when the Green’s lived in Oakland County.

As police were investigating the home invasion one of the officers smelled marijuana coming from the Green’s home. Police obtained a warrant, raided the Green’s house and confiscated 29 marijuana plants not knowing that Maria Green is a licensed caregiver.

The charges were dropped opening the door for their 6-month-old daughter, Bree, to be returned to her parents.

MARIA GREEN: Today has been incredibly awesome. I feel like a million bucks that she is going home with us and we feel like we’re a family again. We’re complete again so that’s really fantastic.

REPORTER: How many days has it been?

MARIA GREEN: She was taken on September 13th and today is October 25th. I don’t know what the math on that is.


STEVE GREEN: Yeah, a month and one-half. It seems like a year. For a while there neither of us could go to her room without sobbing or being too emotional about it.

REPORTER: What was it like the moment that they officially gave her back to you?

MARIA GREEN: He ran to the door to grab her and it was just fantastic knowing that we could take her home and it was kind of a surreal moment on the way home in the car ...

STEVE GREEN: ...That’s her! She’s making noises.

MARIA GREEN: Yeah...[both giggling] Seeing her in the back seat was almost a new experience again.

STEVE GREEN: Getting her was sensational. We were kind of worried about the return policy – there’s was none of that. She just held her out and said, “Here’s Bree.”

It was real nice to be able to grab her and hold her and like she said run to her. It was kind of like one of those movies running to each other.


DEAN BECKER: The following is from the TV show, “The Doctors”. It features the mother of Charlotte Figi who uses medical marijuana to stop her epileptic seizures.


PAIGE FIGI: The reaction has been only positive. Everyone wants to know what are the negative things that I’ve heard and I’ve not heard much and, again, maybe that’s just not reaching me but I think it’s just an education and we just don’t understand it.

She’s not smoking this. She’s not getting high. The people who know Charlotte and know how “end of life” she was...we had signed a DNR and given up. I think they understand and they see her now – she can walk again. She was in a wheelchair.

MALE DOCTOR: Think about this - if you’re watching at home right now. Charlotte’s mom, Paige, had given up, had signed a “Do not resuscitate” because you knew your daughter was in so much pain and agony and yet you have found something that is essentially cured her.

PAIGE FIGI: Yep, she’ll have seizures. It’s genetic but, yes, I see no negative side effects.

FEMALE DOCTOR: Charlotte could have been here today but it’s illegal for her to cross state lines with her medication that she needs...how many times per day?

PAIGE VEE: She takes it twice a day.

MALE DOCTOR: And this is amazing to me because my opinions have changed as well. It’s taken education for all of us to understand. So what are the positive attributes of medical marijuana because there is a difference.

THC is the element of marijuana that gives people the “high” that we’ve traditionally thought of with marijuana. We’re talking here about a type of cannabis and cannabinoids that can help prevent seizures like those in Charlotte and she’s not ingesting it the way you would with normal pot.

We have Doctor Orin Davinsky who is a neurosurgeon and director of NYU’s Comprehensive Epilepsy Center to join us right now. I think the game is changing is it not?

ORIN DAVINSKY: The game is definitely changed. I think stories like Charlotte’s and the path that Paige and her husband has taken has awoken many people in medicine and I think we now have to look at compounds like cannabidiol which, as you mentioned, is the non-psychoactive part of marijuana and does work in animal models of epilepsy. We have these cases like Charlotte’s that compel us to do more research and understand this compound.

FEMALE DOCTOR: It is so important for people to understand that we use plant-based medication every single day in medicine – anorexia and wasting and cancer patients – so people really do need to open their minds to the medical and therapeutic uses of these medications because they can make a huge difference for people like Charlotte.

MALE DOCTOR: You’re trying pioneer new treatments and new forms of the medication that can be used right?

ORIN DAVINSKY: Yes. The regulatory barriers are very intense in the United States. We’re going to do it because I take care of people with Dravets and other disorders like Charlotte has that are terrible, that medical therapies don’t work effectively for and we need to push the envelope. We need to look at other potential therapies and do careful research and study what their benefits and what their potential risks are.

MALE DOCTOR: Keep up all the great work. We applaud you. Maybe next time she can actually come visit us if this all gets changed. I would urge everyone watching...it’s required a mind shift for us as doctors as well but remember when it comes to medications that can save lives we need to open up our minds and research any possible cure.


As always, I remind you, because of prohibition you don’t know what’s in that bag. Please, be careful.


DEAN BECKER: To the Drug Truth Network listeners around the world, this is Dean Becker for Cultural Baggage and the Unvarnished Truth.

This show produced at the Pacifica Studios of KPFT Houston.

Tap dancing… on the edge… of an abyss.

Transcript provided by: Jo-D Harrison of www.DrugSense.org