What Michael Phelps Should Have Said (relating to his ALLEGED marijuana use)

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.

Police Officers ” Protect & Serve” the Public?

From the title of this, a reader may be thinking, "… of course they do.  That is the motto of most if not all departments, it’s written on their cars, it’s in their training materials." But is it actually true?

To begin, Mark Bennett’s Prosecutors Help People, But How Often? was the basis for this entry, as I have mentioned that my background involves me being both a misdemeanor prosecutor and a law enforcement officer.  So, I’ve done both.

As Mark pointed out above, another criminal defense attorney in Houston, Murray Newman, wrote:

… the thing I loved the most about being a prosecutor was helping victims of crime. There was a profound feeling of doing something important when meeting with the victim’s family on a murder case, or the surviving members of an aggravated sexual assault, robbery, or assault and telling them you would do everything in your power on their cases.

I’ve said things like that, as a former prosecutor.  And there is some truth to it.  Mark calls it romanticizing the job, and to some extent that is true, but as Murray points out the same feeling is present as a criminal defense attorney… and for the sincere clients (which believe me is not most of them), there is a real sense of gratitude that just makes me feel good, and by analogy and my hypothesis, other defense lawyers feel they are really doing important work.

Now for the nuance to this whole idea… some cops believe they are doing good work.  Below is a compilation of reasons people enter into law enforcement, and by no means is it exclusive:

Well, there’s the typical "I like to help people" which is bs for the most part. If that’s the case, then be a doctor or nurse. I personally like the rush. I hate being stuck inside, behind a desk, though there is a lot of that at times. Definitely not for the pay, that’s for sure.

Someone told my daughter, people become cops because they were picked on as kids, now they can pick on other people. Maybe that’s true for some, who knows.

- – - – -

Personal reasons, family tradition, want to help others, want to make a difference, want to wear a badge, wan’t to be worn by a badge, benefits. There are a lot of reasons and everyones would be different.

- – - – -

Helping, tradition, sevice, honor.

Lots of reasons. Soldiers are simularly motivated so are firefighters, medics, doctors etc.

Just as I have admitted, I probably said some of these things too when I was going through the application process, and looking back on that time in my life, I do not think I was being dishonest.  In fact, I know that I really did want to make a difference, but I very quickly learned that you cannot make a difference, except in those really rare and dramatic instances like Mark Bennett describes in his article.

In other words, simply making an arrest for any routine offense, be it felony or misdemeanor does not make for a better world.  Getting someone off the street because they had a single Vicodin or were driving on a suspended license does not alter the course of humanity.  Or, my personal favorite (understand there is cynicism and derision with which I say this) possessing a little marijuana….

To many officers, they truly believe they are making a difference and that they are helping the public by getting these people off the streets; however, when you get inside the system, you very quickly learn that it is not about protecting and serving, it is much more about ego trips and power hungry picked-on kids who have become adults bullies.  As an example, one officer that I rode with, who shall remain anonymous asked me,

In what other job can [sic] you drive fast and bust heads?

In sum, I do not believe that most prosecutors sink to this level of ineptitude and think that the majority of them, like Murray and myself, intended to do the right thing and really wanted to help people, but I definitely do not believe that of most law enforcement officers.

Please share your comments, experiences and of course… disagreements.

Well-spoken Republican spoke to the Constitutionality of Gay Marriage…

Gregg Underheim, a former Republican representative from Wisconsin explained his vote during debate on the amendment for Wisconsin to ban "gay marriage".  This topic strikes me as one that will get more an more attention, hopefully in the Obama administration and in coming years, as so many loving couples cannot marry and have to try and set up documents that give them equal rights.  But rarely, do you find someone who is not part of "the movement" for GLBT marriage who provides an well-written statement.  Although this one is over two years old and this Senator ultimately resigned, I wanted to credit Mr. Underheim for his words:

"Constitutions protect individuals from undue intrusion into their lives by government. The right to free speech is a constitutional prohibition on governmental restriction. Freedom of religion is a restriction that says government can’t prevent you from worshipping as you want. Passing this today will change the nature of the Constitution. This is anti-constiutional."

"Constitutions ought not treat gay people differently than anyone else. This ban moves us from protecting people to disenfranchising them."

"What we are doing today is wrong."

"This is an anti-constitutional act. In virtually no other area do constitutions prohibit indivduals from participating in a specific activity. We today are singling out a group of people and saying you will be restricted from engaging in a specific activity. What or who is next? We are now saying that it is acceptable that this document single out specific people. It is the wrong thing to do."

"What social policy are we going to put into the Constitution next? When the constitutions are evicerated, some college professor is going to look back, and ask, “How did this happen?” It was Republicans that decided to do that. How did that happen? The one thing the Democrats never did was this. They never wrote a constitutional amendment that ensconced social policy. The never sat down and said they were going to put social policy in the constitution."

"Today, we are crossing a line, a line the matters."

"We are crossing a line that says it is okay to put our policy preferences in the constitution for perpetuity. That is not the role of this document. We are so overstepping those bounds, it is frightening. We should not be doing this, and I hope that people on my side of the aisle will vote with a clear conscience."

[Hat Tip:  Tom Scharbach, author of The PurpleScarf]

Solving the Drug Problem starts by Decriminalizing Pot and Reducing State Jail Felony Cases to Misdemeanors…

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. 

Law is Cool (A blog & podcast with a Canadian twist)