Saturday, January 8, 2011

Defense strategies: Seeking Justice & Acquittal for Possession of Marijuana

  • Recently on a flight I met an ex FBI Agent who happened to be quite infamous for being a government whistle blower citing negligent practices against the FBI Crime Laboratories. We ended up discussing marijuana prohibition and tactics to have evidence thrown out of court due to insufficient lab data.
    His name is Dr. Frederick Whitehurst. He currently is an Attorney at Law in North Carolina. Here is a little bio about him on Wikipedia
    Dr Frederic Whitehurst

    Dr. Whitehurst is against legalization, but he feels that to many people are being incarcerated for a victimless crime. He understands the need to rethink the punitive measures against people in these cases and has been an advocate for reforms.

    He has worked alongside author John Kelly, who wrote a small book called "False Positives Equal False Justice" It is distributed freely online in conjunction with the Marijuana Policy Project.

    Here is a link to the ebook:

    False Positives Equals False Justice

    Here is a You Tube video of John Kelly talking about how easy it is for police to get false positives field testing for controlled substances. I never knew how easy it was to get a false positive and possibly get arrested for a controlled substance.

    I have kept in touch with Dr. Whitehurst and he shared with me some valuable resources to help get evidence tossed out of court and summarily getting cases dismissed for marijuana possession charges.
    He has done a lot of research in the subject of laboratory analysis and how it takes more than a simple field test to determine if a substance is actually marijuana. Surprisingly lawyers and judges rarely question the integrity of lab results and many people end up with criminal records.

    It is my hope along with Dr. Whitehurst to get this information out to as many people as possible. Then hopefully they will get it out to as many as they can.

    Dr. Whitehurst has many more documents he is willing to share with me regarding this subject that I will gladly share with you folks here at Wag The Gonzo, in hopes that maybe it might help you one day if you end up on the wrong side of the law.

    Instead of settling out of court, maybe these strategies will empower you to question the validity of how they go about testing marijuana and enforcing the law. If enough people are successful they will have no choice but to re-evaluate their stance on prohibition. Especially if they start losing more and more cases due to this strategy.

    Take them to the task of proving what they have is actually marijuana. A sheriff with a field kit is not a botanist and just because it looks and smells like marijuana does not mean that it is. The burden of proof is on the prosecutor to prove it in fact actually is. If you can learn the facts behind their research and use it against them due to being unsatisfactory you got a shot at having your case dismissed.
    Just because it walks like a duck and talks like a duck, does not mean you are a duck in the court of law. There are a lot of different ducks out there! Are you a mallard? How about a Muskogee?

    If you take the time to read the Texas Tech PDF you will be amazed at the shortcomings of the research that was actually done to prove inconclusively that a substance is marijuana and no other type of "green, leafy, vegetable like substance that looks and smells like marijuana.

    The laboratory protocols used to determine the forensic analysis of marijuana is not logical or valid. So take the time to read these PDF's and find out for yourselves why. Once you see the research I guarantee it will blow your mind.

    Here is a good example of how the Texas Tech Law Review can help you.

    According to North Carolina General Statutes 8-58.20 Forensic analysis admissible as evidence
    (My home state)

    Sections B and C say:

    (B) A forensic analysis, to be admissible under this section, shall be performed in accordance with rules or procedures adopted by the State Bureau of Investigation, or by another laboratory accredited by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) for the submission, identification, analysis, and storage of forensic analyses. The analyses of DNA samples and typing results of DNA samples shall be performed in accordance with the rules or procedures of the State Bureau of Investigation or other ASCLD/LAB‑accredited laboratory.

    (C) The analyst who analyzes the forensic sample and signs the report shall complete an affidavit on a form developed by the State Bureau of Investigation. In the affidavit, the analyst shall state (i) that the person is qualified by education, training, and experience to perform the analysis, (ii) the name and location of the laboratory where the analysis was performed, and (iii) that performing the analysis is part of that person's regular duties. The analyst shall also aver in the affidavit that the tests were performed pursuant to the ASCLD/LAB standards for that discipline and that the evidence was handled in accordance with established and accepted procedures while in the custody of the laboratory. The affidavit shall be sufficient to constitute prima facie evidence regarding the person's qualifications. The analyst shall attach the affidavit to the laboratory report and shall provide the affidavit to the investigating officer and the district attorney in the prosecutorial district in which the criminal charges are pending. An affidavit by a forensic analyst sworn to and properly executed before an official authorized to administer oaths is admissible in evidence without further authentication in any criminal proceeding with respect to the forensic analysis administered and the procedures followed.

    Now also, since North Carolina is my state of residence I learned about corruption in the State Board of Investigations stated here in this article:

    SBI veterans wrote and approved bad blood policy

    Here are a few excerpts that are relative to where I am going with this.

    For nearly two decades, the State Bureau of Investigation's habit of not reporting results of critical blood tests was unwritten and unofficial. Agent Duane Deaver, operating under unwritten orders, withheld test results that would have helped defendants such as Greg Taylor, who spent 17 years in prison for a murder he didn't commit.

    Then, in 1997, the SBI put the practice in writing, and it didn't change.
    The task of writing the policy fell to Mark Nelson, a 25-year veteran agent who supervised and trained the agents who analyzed blood and DNA evidence. Nelson penned the policy that now is at the center of a controversy roiling the North Carolina criminal justice system.
    That policy, approved by his superiors and then-SBI Director Jim Coman, embraced the practice of reporting positive results and withholding negative results, which favored the prosecution at the expense of defendants.

    An outside audit of the unit Nelson trained and supervised found 229 cases where the bureau omitted or obscured critical test results from 1987 to 2003.

    Nelson considered the primary consumer of the lab reports to be law enforcement, according to the audit. Current lab managers and analysts told the auditors they had a different view - their scientific analysis is for the criminal justice system as a whole, not just police and prosecutors.
    Nelson's view also conflicts with the landmark 2009 study on forensic sciences by the National Academies, the nation's top advisory board on science and medicine. The report said forensic scientists should operate independently of law enforcement.

    A recent News & Observer series reported that SBI lab analysts pushed past the accepted bounds of science to deliver results pleasing to prosecutors. They are out of step with the larger scientific community and have fought defense attorneys' requests for information needed to review the SBI's work.

    So basically what you have here is shoddy unethical practices in the states investigative forensic laboratories putting out supposedly validated forensics work and helping get convictions favoring law enforcement.
    It's out there that North Carolina' State Bureau of Investigation (SBI) has a record of unscrupulous practices in order to obtain convictions for many years. So basically it is not beyond a stretch of the imagination to honestly question the integrity of their forensic lab results.

    The law NC General Statute 8-58.20 paragraphs b and c say that before you issue a forensic report you have to follow the requirements of the American Society of Crime Lab Directors-Lab Accreditation Group.  And you have to sign an affidavit that you have done just that.  In other words you have to swear under oath that you have done that and if you lie then you have committed perjury.

    I wonder how many affidavits were signed off by the SBI and caused people to go to jail...

    Now take the Texas Tech Law Review, if you take the time to read it and check its references you will find that it is up to the prosecution to validate their protocol. 

    The bitch of it is though is that they actually cant! THERE ARE TOO MANY PLANTS TO CHECK OUT TO DETERMINE IF YOU HAVE IDENTIFIED MARIJUANA TO THE EXCLUSION OF ALL OTHER PLANTS! Out of the hundreds of thousands of plants out there on this planet, they have only tested 600 of them to see if they show up as positive for their field tests they use.
    Its like filling up a 5 gallon bucket with only a drop of water and claiming that they can scientifically prove the bucket is full.

    Defense attorneys need to learn how to start questioning lab results and not taking them as the gospel when they can easily be proven to be invalidated.

    Thanks Gary from A420nation for uploading these PDF Documents so I can share them here with the rest of you. More to come soon!

    Texas Tech Law Review.pdf

    Journal of Forensic Identification of Marijuana.pdf

    1937 Conference on Cannabis 1-14-37.pdf

    This is from a trial just today. In the courtroom the Defendant's Attorney questions the police officer on how he determined what he had possession of was marijuana. (Third Video Down On the Page) Had the Defendant's Attorney knew about this type of questioning against forensic analysis of the evidence to bring into questioning, it may of potentially gotten the evidence thrown out. To bad the Attorney did not read Wag The Gonzo today!  

    Medical Marijuana Hearing 1/08/2011  

1 comment:

  1. Since this post, I have created a in depth website with lots of information on how to beat a marijuana charge. please visit to the site and let me know if you "liked" it.


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