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April 2, 2006 - Denver Post (CO)

OpEd: Just Say No

By Larry Pozner, Denver, a trial lawyer handling criminal defense and business litigation cases at Reilly Pozner and Connelly LLP

Return to Drug War News: Don't Miss Archive

Last November, Denver voters passed a city ordinance making it legal for a person 21 or older to possess less than 1 ounce of marijuana (or 28 grams) for personal use.

Last month, Denver police, ignoring both the expressed will of Denver's citizens and the law of the city and county of Denver, charged David La Goy with possession of less than 1 gram of marijuana. That is less than the amount of sugar in a single packet. The Denver city attorney's office will now marshal its vast resources in hopes of convincing a six-person jury, each taking time from their jobs and kids, that La Goy possessed this pinch of marijuana.

La Goy and many others in Denver are being prosecuted under a state law that makes it a petty offense, punishable by a $100 fine, to possess not more than 1 ounce of marijuana. But it is not just the city prosecutors who are seeking to rack up convictions in these cases, it is also the Denver District Attorney's Office that pursues these cases under state law.

This prosecution is not only absurd, it is an affront to both common sense and to the notion that law enforcement and our elected leaders are accountable to the citizens who elected them.

Denver Police Chief Gerald Whitman's website claims the Denver police work "To Protect and To Serve." But the DPD's continued devotion of its resources to minor marijuana possession cases, in violation of the law enacted by Denver's citizens, neither protects nor serves our community.

Apparently the DPD reserves the right to ignore the will of the people it serves. In my book, that isn't service, it is arrogance.

As for the "protect" part: La Goy is HIV-positive, disabled, and uses marijuana to decrease the nausea that is the inevitable byproduct of the heavy prescription drugs he takes to battle infections. So I guess the DPD is protecting society by making sure this man needlessly suffers a few extra hours a day while convicted. I certainly feel more protected.

Don't you?

The law enforcement costs of such prosecutions are high. Each marijuana case will be heard by a judge who will be forced to devote precious time and staff to pre-trial hearings, jury selection and trial. Denver's judges carry overwhelming caseloads, and I daresay most of those cases involve far more serious offenses. Courtroom time devoted to minor marijuana possession cases usurps time that could be better used.

The Denver police officer who made this spectacular bust will need to testify. So mark him or her off the streets. No chasing robbers, no responding to a burglary, no real crime-fighting for that officer on that day.

The prosecution must prove that this minute quantity of a green leafy substance is indeed marijuana. This will require the testimony of a trained lab analyst drawn from the overworked staff of the Denver Police Department's crime lab. Scratch one lab tech from work on, say, checking DNA in sex assault cases, analyzing evidence in a homicide case, assisting in the prosecution of a methamphetamine lab, or virtually any other lab work that is necessary in real criminal cases. Each marijuana case requires the services of a prosecutor, either a state deputy district attorney in county court or a deputy city attorney in municipal court. Take one prosecutor off of assaults, thefts, DUIs or non-felony sexual assault cases. Yes, indeed. Denver spares no expense in its quest to get the pot-puffers.

The prosecution of La Goy is not an isolated event or an aberration. Since Denver voters adopted the law permitting the limited possession of marijuana, Denver police and prosecutors are bringing all their petty marijuana possession cases under the state law. Taking a snapshot, on the same day in the same courtroom that La Goy appeared, there were 10 cases on the docket for possession of under 1 ounce of marijuana. So Denver's scarce law-enforcement assets are regularly squandered on cases that carry a lifelong penalty for a non-crime.

I suggest this is not what our state believes is justice. If the state really wants to prosecute such cases, let the state use its resources. Direct our Colorado Bureau of Investigation to do the lab analysis and in-court testimony. Tell our state attorney general's office to prosecute minor marijuana cases. But that is not going to happen because none of these state law enforcement agencies will waste their resources on such inconsequential cases.

Apparently Denver will.

In a separate series of events related only by common sense and irony, it was recently reported that in spite of rising crime rates, Denver arrests have dropped 35 percent since 1998 and drunken driving arrests are down by 50 percent in the last seven years. In response, Whitman partially blames staff shortages and has called for the hiring of 267 additional officers. According to city figures, hiring 200 new police officers is a $13 million-a-year proposition.

Whitman says he has a new plan to fight crime. He is going to prioritize where he puts his officers. The Denver District Attorney's Office already has 69 deputies; they always want more. We should remind District Attorney Mitch Morrissey, Mayor John Hickenlooper and Chief Whitman of how they use their current prosecutors and current officers to investigate, try and convict Denver citizens for an offense that Denver voters abolished.

We should remind them of David La Goy's case. When it comes to the continued prosecution of inconsequential possession of marijuana, just say no.

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