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Fighting the prosecutor’s “experts” on intent to distribute drugs

Nov 26, 2014 Fighting the prosecutor’s “experts” on intent to distribute drugs

Where I practice law, the potential incarceration penalties and collateral stigma are stiffer for a conviction of possession with intent to distribute illegal drugs ("PWID"), versus for a drug possession conviction, with the PWID penalties being as stiff as for actual drug distribution.

Often, prosecutors will try to present the testimony at trial of a police officer (derided by some or many as "narcs", short for narcotics officer) to present a conclusion that the totality of the circumstances shows that the defendant intended to distribute the seized drugs.

How can anyone get inside the mind of a criminal defendant in that way? A person may have a large amount of drugs because s/he is a heavy user, because s/he scored a good deal or hard-to-find strain of marijuana or hard to find high quality and high purity version of a drug, because the user found a trustworthy purchasing source who does not always have the desired product, or because the person wants to minimize the number of times s/he takes the risk of dealing with people unlawfully selling drugs.

It is great when a criminal defendant can keep out testimony of so-called possession with intent to distributed experts, starting with developing intelligence and cross examination of the so-called expert, to show that the so-called expert does not qualify as an expert witness under the governing law. If the trial judge qualifies the witness as an expert, the next step is for the criminal defense lawyer to seek to narrow the scope of the court-accepted expertise, to narrow the scope of the accepted testimony, and to deflate the reliability of the expert’s testimony and on the data that the expert relies upon.

The defense can consider offering the testimony of its own intent to distribute expert, for instance through a former addict of the drug being prosecuted, as a counterpoint to the police "expert" who is biased with his or her paycheck and drug war viewpoint to obtain a conviction, and who draws his or her conclusions from textbooks, classrooms, and talking to colleagues and suspects, rather than from actually using the drug product.

My jury acquittal last year on a claim of possession with intent to distribute eight pounds of marijuana in my client’s back car seat followed the testimony of a so-called police intention with intent to distribute expert that this was expensive high-grade marijuana with too large a quantity to be solely for personal use. Clearly, one does not possess eight pounds of marijuana solely for personal use, unless it is part of an art project. Therefore, I focused my defense on absence of knowledge by my client that marijuana was even in the box that had just been delivered to his post office box. The jury acquitted, after the judge refused to dismiss on my acquittal motion, with the judge asserting that the prosecutor’s evidence was sufficient to blow a battleship out of water. How sweet was this victory.

My acquittal in this eight pounds of marijuana case would not have been possible in a non-jury trial, and many juries would have convicted my client.

Where is the stopping point beyond which a police intent to distribute drugs expert may not testify? Yesterday, the Virginia Court of Appeals recognized the possibility that such an expert may not be permitted to testify that the defendant was running marijuana sales as a business. Gregory v. Virginia, ___ Va. App. ___ (Nov. 25, 2014). However, as appellate courts often do, the Court of Appeals avoided addressing the issue head on, by saying that even assuming arguendo that such testimony was erroneously permitted, it was harmless error when considering the overwhelming remaining evidence against the defendant.

Law school focuses having students figure out what the governing law is and how the law applies to varying factual scenarios. A big part of criminal defense is fighting to exclude as much damaging evidence as possible, to deflate and disintegrate admitted harmful evidence as much as possible, to tell a plausible story to convince the jury or judge as factfinder that the prosecutor has not proven its case beyond a reasonable doubt, and to humanize the defendant so that the judge and jury give all the more of their full time and attention and caring into reaching a verdict.

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