LAW BEFORE NIXON

IWHAT'S CHANGED? 

Dennis B.N

Dennis L. Blewitt, J.D, June, 2016

       Like many of my colleagues, I hung out at bars and coffee shops and talked to people, even today.  However, there are some significant differences that merit comment about “the good old days.”  The only thing good about them was that they warrant discussion.  So, I rewrote an excerpt from my Memoirs of a Drug Warrior to see if anyone understands it, or, more to the point, if anyone cares.  It is my hope that some nostalgic well connected acid freak might even line up a publisher or an agent.

One of the many advantages of trying cases in numerous jurisdictions is the benefit of comparing different views of the law and of legal procedure. Before I started traveling, I assumed law in the United States was pretty much the same all over however, that’s not the case.  The only consistency is when people in the system view it as a methodology rather than a body of knowledge.  There have, over the decades, substantial changes in both the law and the perception of the law.  Here is an example of the good old days.

One of my first cases out of state was in Laramie, Wyoming.  Both Laramie and Boulder, Colorado were college towns with travel between the student bodies at each institution. Laramie is on a wind-swept plateau is cold.  The town is much less active and much smaller than Boulder and, other than romancing sheep, I there’s not much else to do there. But, the cowboys do have money. And that’s where my clients, newly returned from Vietnam to enroll at the local University here enter the picture.  They were contacted by someone in Laramie who wanted to purchase marijuana. He drove down to Boulder to beg the clients to deliver the product to Laramie, which the clients were reluctant to do at first until the price offered was so high, they couldn’t refuse.

An interesting fact about my client’s back then was that the majority of them were first introduced to marijuana in Vietnam, by superior officers. So, as long as they were killing Commies for Christ, everything was cool. But when they came home things changed. There were newspaper articles at the time about how soldiers returning from Vietnam had become addicted to heroin and the government wasn’t doing anything about it. Later, I found out they were doing something about it. The government was packing heroin into caskets and sending it to the United States with the corpses, but that’s another story.

So, when my clients showed up in Laramie with a couple hundred pounds of marijuana they were surprised to be presented with handcuffs rather than money. I recruited co-counsel, Eugene Dykeman, and we flew to Laramie to see what we could do. We talked to the prosecutor and a date was set for hearing on our suppression motion. The prosecutor was friendly and condescending and offered to go easier on me when I told him I had never done a drug case there before. After the hearing, he accused me of lying to him because of my performance at the hearing.

“I thought you said that you had never handled a drug case before,” he said accusatorially.

“No, Mr. Reese, I said that I had never handled a drug case in Wyoming before. You must have misunderstood.”

During the hearing, I discovered some very interesting facts. First, Boulder was targeted by various agencies as a drug center. In fact, it was a training ground for some agencies. Additionally, the detective on this case specified that the informant had to buy marijuana from someone in Boulder and get them to deliver it across a state line to Wyoming. My clients were nominated and elected at the same time.  

When I delved into the phone call made from Laramie to my clients in Boulder, some very interesting facts were uncovered. The officer, listening in on the phone call, heard both sides of the conversation between the informant and my client. But the call was made from a phone that had no extension. It was a pay phone. So I asked the investigator how he managed to hear both sides of the conversation and he said, “well now, I have this neat little gadget that I use. I take my knife and I peeled back the wires and attach alligator clips to them, attached to headphones. there’s no microphone in the unit so the other side couldn’t hear anything from me but I can hear everything that goes on.”

Well, the detective had just confessed to a warrantless illegal wiretap. He was clueless he had done so.  I considered the case won at that point but toyed with him for another hour.  Then Dykeman had a go.  All was well except the prosecutor didn’t seem to recognize the problem with the search.  I concentrated on that and Dykeman concentrated on the enticement by the Government to encourage citizens to cross a state line to commit a crime.  I personally believed that it was to help populate the state with one congressman and two senators.  Incarceration would ensure that they would be around for a census.  After the first hearing, the prosecutor informed me that the U.S. Attorney was interested in my case.  He explained that he was a part-time prosecutor and dealing with me took up too much time.  He threatened to turn the case over to the Feds if I kept filing motions.  I knew that the penalty under Federal law was much less that the state of Wyoming was offering.  Immediately, upon returning to Boulder, I filed more motions.

I had some more trips. In one, I got within a mile of the runway when they closed the airport, forcing me to fly back and drive there. Most of the hearings were uneventful, and the prosecutor kept trying to get me to tell my clients to plead guilty to something.  I would respond by filing more motions.  This was the first wiretap case in Laramie and I don’t think the Courts there were used to them.

Finally, I pissed off the prosecutor to the point he turned the case over to the Feds. We had to wait to celebrate because I didn’t drink if I was flying.  However, I made up for it when I got back.  Looking back and comparing what happened then with what would have happened now is astounding.  It is hard for me to believe or appreciate what four decades has done to the drug laws.

In Cheyenne, we had a judge who had sat form many years and had many years as a practicing lawyer.  We both knew about loco weed that the cattle and horses occasionally ate, but there wasn’t a big marijuana problem in the area.  Most illicit smoking was trying to burn corn silk behind the barn.  The prosecutor made a reasonable offer to dispose of the case.  We actually had some discussions about the case, as opposed to today when a recent Law School graduate reads some police files written in a slanted fashion by more experienced police officer and then confers with the officer or agent in order to come up with a “plea bargain.”  There is no bargain.  There is an offer by some kid on a take it or leave it basis.  This arrogance is enforced by long sentencings with minimum mandatory sentences of the client balks at the extortion of a plea.  It is assembly line case processing.  It isn’t fair, but it is efficient.  That’s how the courts handle so many cases in a year.  It is also why we have ten times more prisoners now than when I started.

Before the clients were to be sentenced on a plea to a reduced charge, the Judge called us back to his chambers before Court.  Back then, judges mingled with the peasant lawyers and didn’t hide behind back doors.  I think that is not the case now because the judges know that they are unfair, dictatorial and clueless.  The judges were more concerned with Justice than processing cases and moving the docket along.  The process was fair, but not efficient.  Now the process resembles a ritual such as Mass, where a litany is recited which has absolutely no relationship to reality where a judge tells a defendant about rights he theoretically has, which actually don’t exist.  The client responds with catechistic answers.  The judge asks the defendant if he is agreeing to be screwed of his own free will and there haven’t been any threats.  Instead of telling the judge that he was threatened with extremely long sentencing if he didn’t go along, he tells the judge that his plea is voluntary.  At that point, the defendant is sentenced according to some chart that any clerk could use with the same result.  Uniformity is the buzz word.  To get that, judges can’t be independent.

In chambers, the judge had a conversation with the attorneys and prosecutor.  He explained his position in advanced and warned the prosecutor that he would have many regrets if he pissed and moaned about the decision.  This is the essence of the judge’s position as best as I can remember.

Judge-  Gentlemen, I have been doing some reading about this marijuana situation.  I don’t think it is that bad.  I read how it became law and am aware that the defendants didn’t start until they were in Viet Nam.  I find it unfortunate that the Government isn’t doing something about the situation there.  We’re surely spending lots of money to kill and I think some of the money could be used to help these men out.  So, I am sentencing them to the indeterminate sentence as required.  He told us that he had to do that because the press demanded some kind of punishment because it was the biggest marijuana case in Wyoming so far.

However, he told us, I will entertain a motion to resentence these people in 90 days when the publicity dies down.  So if you gentlemen file motions in about 85 days, I will grant them.  He also said that the clients had 30 days to turn themselves in at the facility in El Reno, Oklahoma and they could take their cars there.  Not a peep out of the U.S. attorney.  The defendants were released in 100 days, finished college and have been employed ever since.

I don’t have the vocabulary to describe what happens in court today to give all of you a comparison.  All I can say is that you should attend some court sessions and compare what is happening today with my story.  There hasn’t been just a change in attitudes, there has been a whole change in the culture.  Everyone entering the courthouse is suspect.  Probability is slim, but that doesn’t matter.  We are no longer a free country where we are assumed to be good.  We are suspected of wanting to cause harm to the court personnel.  Unless you are a member of the police state, you have to submit to surveillance, and searched, either by hand or electronically.  I can’t help but observe that the courts weren’t that way until the prosecutors and judges started screwing the people.  I have always found the situation to be insulting, but I guess I am one of the few who doesn’t live in a state of fear.  Like one famous president said, “if you can’t stand the heat, get out of the kitchen,” and yet another stated confidently, “you have nothing to fear but fear itself.”  Also, compare past presidents with the front-running candidates today.  It is not hard to see why I write.