08/14/15 Clay Conrad

Cultural Baggage Radio Show

Atty Clay Conrad author of Jury Nulification - Evolution of a Doctrine, Houston DA Devon Anderson, Jason Miller of Houston NORML re unconstituional cavity searches, Daniel Robello Policy Director for DPA on massive incarceration

Audio file


AUGUST 14, 2015


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

DR. G. ALAN ROBISON: It is not only inhumane, it is really fundamentally un-American.

CROWD: 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.

This is Dean Becker. I want to thank you for being with us on this edition of Cultural Baggage. We've got a great interview lined up with attorney Clay Conrad, talking about jury nullification, and the truth is the drug war's ending slow, ugly, and bloody, but it could move a lot quicker and cleaner if you would just get on board. Here's hoping this show will help motivate and encourage you to do so.

You know, it seems there's an ever-changing panorama of laws and interpretation of laws and how they're affecting the American populace, and it seems there's beginning to be a new movement, or an expansion of a movement, for jurors to negate the over-reach of many of these laws, and here we have with us today, from the law firm of Looney and Conrad, Mr. Clay Conrad. He's the author of Jury Nullification: The Evolution Of A Doctrine. Clay, am I right, are things changing, or is this just being noticed more these days?

CLAY CONRAD: I think it's a little of both. I think that the, there are so many events combining to put pressure on jurors to not apply certain laws that are widely seen as unjust or oppressive, and I think the level of knowledge out there among the public, thanks to the internet and the ability for ideas to be disseminated, is so much greater, that the chance of getting 12 people to all agree to convict in a controversial case is getting lower and lower.

DEAN BECKER: Well, you know, last week the Young Republicans, or the Pachyderm Club it was, held a conference with a couple of elected officials including our district attorney, and it was moderated by ABC reporter Ted Ohberg. Let's hear this report here.

TED OHBERG: Who's for, and you only get to pick one, so don't go with all three: Medical marijuana? [some applause]. Okeh. The decriminalization option? [some applause]. And full legalization? [loud applause and some cheers]. Okeh. I don't think we need to go for a recount, we know where the audience is.

DEAN BECKER: Later in the program, Ted Ohberg asked the following question of the district attorney of Harris County, Devon Anderson:

TED OHBERG: As you take marijuana cases, possession cases, to misdemeanor juries, and does it happen often?

DEVON ANDERSON: No, it does not happen often.

TED OHBERG: But, what is the attitude of jurors?

DEVON ANDERSON: Just what, pretty much what the audience's is.

TED OHBERG: This is you, you were not surprised by this sign, because you believe Harris County jurors, the ones who show up for jury duty --

DEVON ANDERSON: Well, here's what it is. They hate being in jury duty, they're down there, they have to find a parking place, they have to sit there for two hours before they go to court, then they come and they're going to hear a dope case? Really? Madam prosecutor, we really doing this? Yeah, we really are, because we offered the guy, you know, three months deferred and he turned it down and he's guilty, so we don't dismiss the case when we can prove it. We do not go to trial though very often on those cases because we make such attractive offers on them.

TED OHBERG: And your offer typically is?

DEVON ANDERSON: It is, it is deferred adjudication, it is pre-trial diversion, it is the First Chance program. If they have a long record, back-time, and a fine.

TED OHBERG: And the back-time is typically the two or three days they've waited --

DEVON ANDERSON: Credit for time served, right.

DEAN BECKER: So, Clay, the fact of the matter is, people are beginning to realize that it's more difficult to convince jurors to convict on a drug case, am I right?

CLAY CONRAD: Well, on a user quantity drug case, yeah, I think on commercial cases, someone gets caught with, you know, eight kilos of cocaine, I don't think they're going to get as much sympathy from the jury as they will if they get caught with a couple of rocks and a crack pipe, or a small baggie full of weed. I think for small quantity cases, the public just really doesn't support the stance of using the criminal law as the tool of first choice to address those things anymore.

DEAN BECKER: We've talked about it before, that, I don't know was it 93, 95, 98 percent of drug cases do not even go before a jury because they take the plea bargain, right?

CLAY CONRAD: Well, yeah, and the state is getting more and more lenient in the plea bargain they offer in order to avoid taking those cases to trial. It's pretty difficult as an attorney to advise your client to go to trial, when the evidence is strongly against them and the state is offering just a very mild slap on the wrist if they plead. Now, the other thing is there's so many drug cases in the system, that if 10 percent of them were to end up going to trial, the courts would be hopelessly log-jammed. You would have tens of thousands of additional cases going to trial, there's 22 felony courts and 15 misdemeanor courts in Harris County. It wouldn't take that many additional trials to just totally jam that system up.

DEAN BECKER: That seems like something that should be organized and put together, if you ask me, but I guess that's demanding a lot of courage from those accused, right?

CLAY CONRAD: Well, exactly. It's the sort, it's the prisoner's dilemma, if everybody insisted on a trial, then almost nobody would be convicted.


CLAY CONRAD: But, if only one person insists on a trial, then his chance of being convicted is pretty high. So, getting everyone to agree to go to trial is, as a practical matter, just never going to happen, you're talking about thousands of people who all have to hold hands and hope that nobody else cheats.

DEAN BECKER: Well, you know, we have this situation where too often, you know, somebody with marijuana in their system is somehow deemed to be even more guilty when they're charged with other crimes. A couple that come to mind, the situation with Ms. Bland, up in Hempstead, where she's arrested and days later they determine she had marijuana in her system, which somehow they think makes her more culpable or guilty, and then we had a more recent case in Houston that's come to light, where this young lady was strip-searched and had a cavity search looking for misdemeanor amounts of marijuana. I've got this clip here from Jason Miller of Houston NORML.

JASON MILLER: My name is Jason Miller, and I'm the executive director of the Houston chapter of NORML.

DEAN BECKER: It seems that recently, we had another in a series of really horrible stories dealing with marijuana and the search thereof. Tell us, please.

JASON MILLER: What you're referring to is a case of a young woman that was pulled over for running a stop sign, and a deputy claimed to smell marijuana. Like a lot of these cases, when they smell the plant, the Fourth Amendment goes out the window. And the woman was actually cavity searched publicly, without a warrant, in a gas station parking lot at night. Two deputies, you know, forced her to the ground, and forcibly spread her legs apart and conducted a manual body cavity search. There was .02 ounces of marijuana found somewhere, we don't know where exactly, but a tiny amount, I mean we're talking about a small joint.

She was arrested for possession of marijuana and resisting arrest, and this was a situation where, I mean, it's absolutely 100 percent unconstitutional, and illegal. I mean, our Texas Legislature passed a law not that they needed to, I mean, we have a Fourth Amendment, but they actually passed a law requiring a warrant for a cavity search. It actually takes effect next month. She's been speaking to the media through her attorney, and it's a national story at this point. Sometimes, if the media wants to, you know, question someone's credibility, somebody who was involved in a case like that, they'll say, well, she, the person tested positive for marijuana. Well, at any given time, about 10 percent of the population would test positive for marijuana because it stays in your system thirty days. This is an extreme example, but you know, there are other cases as well where a person, you know, being violently abused over nothing more than a small amount of marijuana.

In Harris County, you know, this is something, I just heard the district attorney talk about this, and she's very much touting the First Chance Intervention program to be a program where it's pre-charge, they don't even charge if it's a small amount of marijuana, they don't even charge the person, you know, they offer them the First Chance program, and I'm wondering, you know, with Sheriff Hickman now, you know, the new sheriff in town, are his deputies, have they just, you know, stopped doing First Chance intervention, are they trained on it? Why, if we're not prosecuting small misdemeanor marijuana, why would they conduct a cavity search to look for misdemeanor marijuana?

And the sheriff's officers, they're not even denying this. Spokesperson for the sheriff's office Thomas Gilliland, made a huge mistake right off the bat, immediately defended the officers without even doing any bit of research into what actually happened, and it's blatantly unconstitutional, blatantly illegal, it's a violation of her civil rights, and we have a huge problem on our hands now over a tiny amount of marijuana, and the Harris County Sheriff's Office, I mean, this being a national story at this part, I mean, they're in the midst of a PR nightmare over this.

DEAN BECKER: All right, friends, once again, we've been speaking with Mr. Jason Miller, he's the president of Houston NORML, and check out their website, they're on the web at HoustonNORML.org.

If they're not that concerned with marijuana, they're trying to negate the penalties and so forth, why are they devoting so much time to, you know, investigating for such tiny amounts of marijuana? Clay, what's your response to that situation?

CLAY CONRAD: Well, other than habit, I think the other thing is that police officers like to make arrests. If you find a small quantity of marijuana, and you make arrest, make an arrest, you get to search the car, you get to search the person, you get to seize their assets. There's a lot of money in asset forfeiture. So I think that there's a lot of reasons why they pursue things so aggressively. I also think that cop culture is out of control. Cop culture is dysfunctional, and the fall-back position for police in this country is to use the maximum amount of force and intimidation in every encounter, and I think the, the roadside search case you're talking about just perfectly encapsulates that. They search, they don't find anything, and then they do cruelly invasive strip search on the side of the road, and claim to have discovered .02 grams of marijuana or something, it's just absurd, the lengths that cops will go to in order to achieve nothing that makes us safer as a society, which really should be their goal.


CLAY CONRAD: They are more interested in being warriors than being guardians, and that it is a dysfunctional culture, and until that culture changes, none of us are really going to be safe from an overly jacked-up officer who thinks he smells something.

DEAN BECKER: You know, there was a situation a couple of years back where Cathy Jordan and her husband, down in Florida, were caught growing a few plants outside their house, because she has MS, she's survived for longer than two of her doctors through the use of cannabis, and they had a recent story breaking there, and I want to share that with you.

TRINA ROBINSON: Is it the verdict that could clear the way for the use of medical marijuana?

JURY FOREMAN: We the jury find as follows: The defendant is not guilty.

TRINA ROBINSON: A Hollywood man's criminal charges go up in smoke, and tonight, he's celebrating his victory.

JESSE TEPLICKI: Go home this evening, have a meal with my wife, smoke a fat one before it, and that's it.

TRINA ROBINSON: NBC 6 anchor Keith Jones joins us live from Fort Lauderdale with more on this controversial case. Keith?

KEITH JONES: Well, at the core of this case, it's a criminal trial. The charges are cultivating marijuana plants. Now, the prosecution argued that 46 plants was way too much for one person for medical needs. They also called into question the medical records, the fact there weren't any for 10 years that make him, showing this guy who was actually medically dire. But I spoke with jurors tonight, and they say, they sided with compassion here, and they deemed this medically necessary.

DEAN BECKER: It's a case that, it was jury nullification, 12 jurors declared him innocent, and they talked about, you know, it was a lot of hoopla over the fact this man needed it for medical necessity. He had anorexia, and he was caught with 46 plants, and they let him go. Clay, this is just another example of intelligent jurors, am I right?

CLAY CONRAD: Well, the difficulty in cases like that is getting the evidence in front of the jury, that it was being used for medical use and the benefits that it offered him. In most cases, that evidence never gets before the jury. So, I don't know if that was so much a jury nullification, or if the jury found that there was a necessity, a medical necessity, for him to have those plants, and therefore they decided it wasn't criminal. But I do think that every time the state tries to crack down on jury nullification, it backfires.

There's a situation in Denver now, where a man was handing out jury nullification pamphlets to people going into the courthouse, and they arrested him and charged him with jury tampering. As a result, instead of 20 or 30 people getting those pamphlets, millions of people around the country have read articles about this guy on the internet. So it's backfired, more people learned about jury nullification through the state's efforts to stamp it out than probably any other single avenue. And as a result, more people do go into court knowing of this, and outside of two states, one juror can hang the jury, and prevent a conviction. It is getting more and more difficult for the state to get convictions on personal use drug cases, and if there's any evidence of medical use, the idea that 12 people will unanimously convict is pretty far-flung, assuming that at least one of them has the knowledge and temerity to know that they can just say no.

DEAN BECKER: Friends, once again, we're speaking with Mr. Clay Conrad, he's with Looney and Conrad, a very prestigious law firm here in Houston. He's author of Jury Nullification: The Evolution Of A Doctrine. You know, Clay, we have another Clay who's now missing, a jury nullification warrior if you will, a man with no legs who spent cold evenings and freezing mornings handing out jury nullification pamphlets near the Harris County courthouse. Now, Clay passed away January First of last year, but, is it safe? Can I go do that here in Houston?

CLAY CONRAD: I think you can. It is very rare when anyone will be arrested for that, and the cases where people have been arrested have eventually been dismissed, so long as you are not trying to influence particular cases, and you are not specifically seeking out jurors to hand the pamphlets to, then it's simple free speech. If you are specifically seeking out jurors, and if you are targeting a specific case, then it can constitute jury tampering, but so long as you just hand them to everybody walking in and out, whether they be jurors, judges, prosecutors, lawyers, cops, whoever, and you don't discuss or attempt to influence a particular case, you're within the bounds of the law.

DEAN BECKER: Well that's, that's good news. I intend to do that then, when the weather cools off a bit. You know, Clay, I think the, oh, what's the word I'm looking for, the impetus of this drug war is failing, we're starting to hear it at the federal, the state, the local level, our DA is not wanting to give these people permanent records, and I'm wondering, it's been the work of reformers, it's been the work of authors like you, it's been a result of many years if not decades now of trying to enlighten and shift our focus. Are we on the brink of major change, not just in Texas, but nationally, insofar as how we address this drug war?

CLAY CONRAD: Well, I think the change has already occurred, which is that public opinion is on the side of change. That's the change that matters. Legal change will follow once public opinion changes. Legal change is slower though, it always lags behind public opinion, and you kind of want it to, you don't want the winds of the day making the law whipsaw back and forth. You want the law to change in a well-thought-out and deliberate way. But public opinion has changed on this, and it is just a matter of time before the law catches up.

Some states, it's catching up faster than others. It is going to be more and more difficult to get juries to go along with user quantity drug cases, it's going to be more and more difficult to get juries to go along with medical cases, and as a result, prosecutors are going to start offering deals in those cases that show that they're not taking the cases seriously, that they don't consider these crimes that need to be pursued. The legislature will eventually follow, because the cost of the system, the cost to the taxpayers of every drug arrest, is in the thousands and thousands of dollars. You're taking the police officers off the street to take these people to jail, you're housing them in the jail, you are having court hearings that cost far more than a thousand dollars an hour to run a court house, to run a court.

In Harris County, Texas, each court costs way more than a thousand dollars an hour to run. So you're tying up the courts, you're tying up the prosecutors, you're tying up the cops, you're tying up jail cells, which are overcrowded anyway. And it's not long before the social pressures and the financial pressures finally reach the legislature. There's an old saying that no one ever lost an election by being too tough on crime, but there is getting to be a combination of factors -- financial, social, and legal -- that are all pressing to change the drug laws. And like I say, once the social change happens, legal change is inevitable, it's just a matter of time.

DEAN BECKER: All right, friends, once again we've been speaking with Mr. Clay Conrad. He's author of Jury Nullification: The Evolution Of A Doctrine. I urge you to please check it out, to educate yourself and your friends, and maybe someday soon we'll have a few brave individuals that will dare to take some of these cases to a jury trial. Clay, any closing thoughts, a website?

CLAY CONRAD: Well, our firm's site is LooneyConrad.com, and the book is available on Amazon and through the Cato Institute. If anyone has any questions, I'm here to answer them.

DEAN BECKER: It's time to play Name That Drug By Its Side Effects. Lightheadedness, nausea , vomiting, headache, malaise, fatal disservice in brain function, imbalanced electrolytes, over-dilution of sodium in the blood plasma, osmotic shift in pressure ruptures, cerebral edema, seizures, coma and death. Time’s up! The answer -- and before I give you the answer, let me tell you a little bit more about this product. It’s found in baby food. It’s a major component of the explosives used by the terrorists, and it’s freely available in the hallways and used in the classrooms of every school in our nation. Prolonged exposure causes severe tissue damage, inhalation of even a slight amount can be deadly. Dihydrogen monoxide is a killer. Otherwise known as water.

As we've just heard, with the interview with Mr. Clay Conrad, the author of Jury Nullification, we have a change afoot here in the US. I think the impetus of the drug war has slowed down and started going the other direction. Our district attorney, for god's sake, I think her conscience is beginning to bother her about the draconian sentences that had been handed down heretofore. And we have with us today the Research Coordinator for the Drug Policy Alliance, my traveling companion if you will on the 7,000-mile Journey, Caravan For Peace, Mr. Daniel Robelo. Hello, sir.

DANIEL ROBELO: Hey, Dean, thanks for having me.

DEAN BECKER: You know, I talk about the drug war being, ending slow, ugly, and bloody, and that's true, but it needs to end a little quicker and a whole lot less bloody, am I right?

DANIEL ROBELO: Absolutely right, Dean. As you and your listeners know, the drug war has been a major driver of mass incarceration in this country, as well as prohibition-related violence in Mexico and Central America, and right here in US states. You and I, three years ago, were traveling across the country as you mentioned on the Caravan For Peace, trying to raise awareness to that side of the issue. We -- it's very heartening that the momentum that really is truly growing from the White House to both sides of, bipartisan support in Congress, to different states, for sentencing reform. But it's really just been scratching the surface so far, leaving the larger unjust racist system behind it intact. And so, we've got to do much more, and much more urgently.

DEAN BECKER: Yeah, and Daniel, you have a great piece in this regard up on Huffington Post, Ending the Drug War Won't End Mass Incarceration, But It's A Necessary First Step. Give us a summary of that article, please.

DANIEL ROBELO: Sure. Well, basically in that piece I had two points. One, that we need to do a whole hell of a lot more, even though we're starting to turn a corner, we've got to do a whole lot more, ending the drug war is a big part of that. And I lay out some steps. They're not even really that radical, but they would really begin to take apart this drug war and in doing so make a big dent in mass incarceration.

My other point is, and a lot of commentators have kind of raised this issue, that even if we liberated everybody behind bars today for a drug offense, incarceration would exist in the US at levels unthinkable anywhere else in the world, and so, even though, you know, one in five prisoners overall as well as all the tens of thousands of people in local, county jails and on probation and parole for drug offenses or are being returned to prison for minor violations like failing a drug test, even with freeing all those people and preventing thousands more from being incarcerated every day, like they are now, there would still be so many people.

A lot of them are property, people that have committed property offenses, people who have been convicted of selling drugs, even at low levels, are not typically on the table for the current options on the table for sentencing reform. We need to think seriously about how we can consider at least more controversial measures beside sort of the low level possession offenses. But even if we were just to talk -- take on low level possession offenses right now, even if, we would make a huge dent in mass incarceration.

DEAN BECKER: Yeah, you know, it seems that in years and decades past that we've been ruled, if you will, by some very vindictive actors who thought that drug users were just unconditionally exterminable, if you will. Daniel, any closing thoughts you'd like to relay?

DANIEL ROBELO: Visit us on the web at DrugPolicy.org.

DEAN BECKER: As we close out, I want you to know I've determined I will be handing out Fully Informed Jury Association brochures at the courthouse. I'd like to get your help. I'll take Monday. Who'll take Tuesday through Friday? Please, contact Dean@DrugTruth.net. And as always, I remind you, because of prohibition you don't know what's in that bag. Please be careful.

To the Drug Truth Network listeners around the world, this is Dean Becker for Cultural Baggage and the unvarnished truth. Cultural Baggage is a production of the Pacifica Radio Network. Archives are permanently stored at the James A. Baker III Institute for Public Policy. And we are all still tap-dancing on the edge of an abyss.