He'll Keep His Home And Live In It, Too. Even so ...

Entering a plea somehow seems like the antithesis of being a lawyer, yet knowing when to a strike a deal is important. A client's life and welfare depends on the advice you give. Even so, at the end of the day, a plea feels like betrayal. So this evening I wallow.

I've been picking a jury in a criminal case in which another client, a former homicide detective, is accused of diverting funds intended for confidential informants. The state's case is thin, and, frankly, raises so many questions about what the local police department was doing that I am begnning to look forward to cross-examining the state's witnesses. But we had the day off in that case today. So I headed to the northern part of the state for the fourth day of evidence in a suppression hearing in a very different kind of case.

My client and his wife were charged with possession of marijuana with intent to sell. Police received a tip that a man with a probation violation warrant was living on the couple's property in a tent. They went to the house to check out it out. When they arrived, they found the man outside, building a shed. After placing him under arrest, they walked to his tent to find his identification. As an officer walked away from the tent, she spotted marijuana plants behind another building, or so she said.

The issue in the suppression hearing was not whether the officers had a right to be present on the property. They did. At stake was whether the plants were in plain view from any of the locations they had a right to be. The so-called plain view exception to the warrant requirment justifies a warrantless search when an officer has a right to be present in a given location and evidence of a crime is in plain view.

In this case, the officers almost certainly lied. They had long believed the couple to be major growers of marijuana. A dozen or so years ago, police tried and failed to pin 300 pounds of marijuana on the couple. Last year, officers were surveilling a field of plants believed to belong to my client just down the road from his home in a rural area of the state. The couple is suspected of growing plants at scattered locations throughout the state, including a little used strip of Bradley International Airport, some forty or so miles away. The search leading to this arrest smacks of pretext.

I do not believe in coincidences, and I am generally suspicious of serendipity that breaks in favor of the state. I suspect that cops figured that so long as they were present at the location, they'd peek around a bit. I have good reasons to believe the officers were untruthful about what they said because the plant they spotted was tied down to remain out of view when they arrived. But the source of that testimony might not be believed by the court. Lawmen don't lie, after all, or so many a court seems to think; people with criminal pasts do lie, a judge often thinks.

Had we lost the suppression hearing, the evidence against the clients was powerful. The state charged a statute requiring a five-year mandatory minimum sentence; it had also filed what is called an in rem action to seize the couple's home. All this for growing plants people smoke to feel better. Why is it a crime to grow marijuana but not to distill gin?

The state made us a deal. The offer was good until the judge made a decision about whether to suppress the evidence. If we lost the decision, the state intended to use the evidence found at the home to convict my client and send him to prison and seize his home. I could not guarantee my client we'd win the suppression hearing; indeed, I thought there was a pretty good chance we would lose it.

So we cut the deal today. My client got probation; no jail time. And he will pay a small fine and keep his home. The charges against his wife will eventually be dropped.

My client is a good man. He's in his early 60s now and not well. He will die a convicted felon. But he will remain in his own home with his wife of more than 40 years. Lawyers who keep track of wins and losses will score this one as they will. I am, frankly, ambivalent. Plea barganing always feels a bit like dealing with the devil. Tonight I smell sulphur in the air, outside my door I see the print of a cloven hoof.

Comments: (1)

  • "All this for growing plants people smoke to feel ...
    "All this for growing plants people smoke to feel better."Don't you mean "All this for growing plants that are illegal to grow"?
    Posted on March 26, 2009 at 1:18 pm by Anonymous

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