Austin Criminal Law Journal : Austin Criminal Defense Lawyer & Attorney : Dax Garvin : Texas, Travis County, Georgetown, Round Rock, Cedar Park

When you, an individual, celebrity or not, are asked by law enforcement to admit to conduct that may be criminal or that you know you are caught in the midst of ...

remain silent.

You have absolutely no obligation to provide evidence against yourself.  Similarly, do not provide information if anyone asks... it can only fall into the wrong hands and be used against you.  Remain silent. 

The notion that owning up to a mistake will make things alright is not true.  Take Michael Phelp's issue for instance... regardless of whether or not he is arrested, charged, and possibly convicted of possession of marijuana, this is still a huge issue for him ... a smear campaign.  Don't apologize.  Don't make statements that may suggest wrong-doing, as Phelps has done... in short:

If something can be proven, let the government prove it, but do not help them by testifying or giving evidence against yourself.

Having set out my opinion, as a criminal defense attorney... here is what Michael Phelps should have said, according to my political beliefs and experience as a criminal defense attorney (read the following as if Michael Phelps authored it):

I am not going to admit any wrong-doing.  I am going to utilize my right to remain silent as guaranteed by the 5th Amendment to the United States' Constitution and also protected by each state's constitutions...

I am refusing to provide a statement or explanation because it is a private matter that occurred during my private life.  The fact that I am followed around by cameras and many people seek to diminish my name and accomplishments are up to those people.  But still, I will not admit wrong-doing.

Like most professional athletes, I work to cause my body to do things most other human beings have never accomplished.  And, it was done without the use of performance enhancing substances. 

So many people in America get upset when an athlete or other celebrity is believed to have used marijuana.  Some segments of society (many elected officials) have brainwashed much of America into believing that smoking marijuana is a horrible criminal behavior that must be stopped to save America.

So, to summarize, I do apologize for not believing that you have an interest in my health or in protecting society.  What I do believe is that some of you just get some twisted voyeuristic thrill from trying to topple a professional athlete / celebrity.  Afterall, what percentage of all Americans have tried marijuana at least one time in your life? 

(Best Regards, MP)

I wish Michael had written something like that or presented his "apology" in that manner.  Afterall, there are multiple noted marijuana smokers, including world-class athletes, Nobel Prize winners, at least three U.S. Presidents and Supreme Court justices, and other incredibly successful people from all sectors of business and the arts.

Marijuana laws are nothing more than pure hipocracy.  Those who rail against the use and possession of marijuana or have someone in their family who got busted with it should have to suffer the same consequences of anyone else but the harsh reality is that they do not.  To change my opinion of this, I would like to see some of the prosecutors, judges, and other lawmakers that have ever played a part in convicting someone of marijuana possession or PDP to accept the same consequences they dole out for everyone else.

Bottom line, we all know that money is the leading reason Michael did issue the apology.  I would be willing to wager that a series of meeting occurred between lawyers for each of the sponsoring agencies and Michael's attorneys and that collectively they drafted this statement that Michael issued.  Hopefully, Michael is just playing along if that is what happened because he really has nothing to apologize for.  I could continue to rant for pages ... but I'll stop here.

Legalize Marijuana.  Stop the SENSELESS prosecution of this minor "offense".  In fact, help turn around the American economy by allowing the government to tax the sale of weed... thus generating some income to help pay for all these bailouts ... just like it does tobacco and alcohol.

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Many of Grits for Breakfasts blog postings receive numerous hits and initiate heated debate, but Williamson DA Sees Drug Penalty Debate as Turf War really grabbed my attention because it involves Williamson County, which is one of the places I practice criminal defense.

John Bradley, District Attorney for Williamson County, was quoted as saying:

If SJF drug cases become misdemeanors, the shift in workload from district to county courts at law would be substantial. In selfish terms, a DA with only felony jurisdiction (like myself) would suddenly have an enormous percentage of the caseload moved off the docket. A county attorney with only misdemeanor jurisdiction (such as my colleague in Williamson County) would suddenly find herself with lots of new cases.

This would be an extraordinary movement of resources for no reason other than someone deciding to reclassify the crime from felony to misdemeanor. Punishment would require county dollars (in county jail) rather than state dollars (in state jail)....

The discussion became more heated in the comments that followed Grits blog entry.  Although several of them made very valid points, the one in particular really made a point with me:

kaptinemo said...

How many times must the system be 'tweaked' before the recognition is made that it is the system, itself, that is the problem?

The 'system', in this case, is drug prohibition, which is the font of the complained-about caseload. Prior to 1914 and the Harrison Narcotics Act, which Federalized drug 'crimes' such as possession, we didn't have these problems...or caseloads.

Why bother playing around with trying to unravel the Gordian Knot of drug prohibition and all its' baggage? We've been trying to do that, to the tune of a trillion dollars since 1968, and we're no closer to achieving a drug-free utopia now than they were back then...as the complained about caseload demonstrates. A caseload we can no longer fiscally afford. It's long past time to consider the once unthinkable, and to speak the once forbidden, and talk about alternatives to the present - and punitive - DrugWar.

Now, in these difficult economic times, it may really be time to try something new, and different.  I will be the first to admit that the legalization or the decriminalization of all drugs or even most drugs may not be in society's best interest, I am willing to consider alternatives.  I absolutely agree that these SJF crimes should be reduced to misdemeanor offenses, as too often people are being convicted of felonies for miniscule amounts of an illegal substance.  Even when these people are given deferred ajudication probations, often the conditions are so stringent that a saint would have a difficult time completing them.

So, as kaptinemo wrote about fighting the drug war and spending trillions of dollars, which I agree is a worthless fight and an unwinnable one at that, I propose the following:

• legalize the possession of less than 2 ounces of marijuana;
• criminalize its use when driving (similar to DWI, afterall, is pot really any worse than alcohol);
• allow the government to regulate the sale of marijuana and tax it (similar to tobacco); and
• reduce the levels from SJF to misdemeanor offenses on other drug crimes.

This process would guarantee that the marijuana is not laced with something more addictive or harmful and would allow the government to create revenue to help pay off its trillions of dollars in expenses.  Not to mention, not fighting the "war on pot" would save counties, states, and the government in general large sums of money (purposely I am being vague as I do not have a figure to write).

Further, it would save money on prosecutions and those convicted of the SJF amounts of other substances.  And, as to John Bradley's comment about shifting the burden of work to another office, I believe this would only allow a couple of things to happen:

• assistant district attorney's would have more time to review and handle the other, "more serious" cases; and / or
• given that these ADAs are also county employees, nothing would prevent them, aside from politics, from working on some of these lower level cases, unless the agencies in question absolutely refuse to work together or share responsibilities; afterall, both are paid by county tax dollars and both work for "The County".

To conclude, pushing more people into the criminal justice system, whether it is by placing them on probation or putting them in jail or prison is not the answer. We already have the highest percentage of our population involved in this system, at least among the developed world. 

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Finally! The country is beginning to wake-up (at least in Massachusetts) and realize that possession of small amounts of marijuana is no worse than possession or use of alcohol, if that bad!  In Massachusetts, the voters by a 65% to 35% margin passed a change to state law that only makes possession of marijuana a civil penalty with a $100.00 fine.  There is no longer a criminal penalty, threat of jail, or threat to future job prospects attached to possession, if it is a small amount.  Read the complete article here.

Under the marijuana decriminalization law, offenders who are caught with an ounce or less of marijuana get a ticket for a civil violation, but are not criminally charged. Juveniles have to pay the $100 fine and attend a drug abuse counseling course, or the fine will be increased to $1,000.

Further, it seems that law enforcement in Massachusetts is having difficulty with this change, not because they are wanting to arrest these small-time users / possessors, but because they do not have a way to force a person to identify themselves and they do not have a citation with the proper "checkbox" on it for this civil violation.

While the latter part of this sounds ludicrous to me (write it into the other box or ignore it), it also amazes me that Massachusetts does not have a law similar to that in Texas for Failing to Identify Oneself to a Police Officer:

Sec. 38.02. Failure to Identify.

 

(a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.

 

(b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:

 

(1) lawfully arrested the person;

 

(2) lawfully detained the person; or

 

(3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense....

But, I am far from believing that Texas legislators will ever wake-up and pass a similar law.  However, officers could stop wasting resources and making arrests for nominal amounts of pot, weed, maryjane, 420, or any other name you want to call the pretty green plant.  I will remain hopeful that one day this will change, but for now, I realize we, as Texas residents, will still have to be careful of how we possess our pot and where we keep it, if you choose to do that... and no, I'm not recommending that anyone break the law!

However, as a parting thought, the picture below is one that I find entertaining but also quite true. I hope you enjoy this as much as I did.

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