Mad Dog and Marijuana

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Mad Dog must admit, from the outset, he does not smoke marijuana, has never given it a fair try, has never smoked cigarettes, although he once tried and found the experience uninspiring, does not drink caffeinated drinks, cannot tolerate much alcohol, although he has tried to develop a taste for wine and beer, just cannot.

(In fact, Mad Dog married a Jack Mormon, whose entire family can regularly drink Mad Dog and all his relatives under the table.)

Having said all that, Mad Dog may not be qualified to say much about marijuana, but that will not keep him from trying.

Patrick Radden Keefe's article about Mark Kleiman and the legalization of marijuana in the state of Washington, which appears in the Nov 18 New Yorker, triggered a potent memory in Mad Dog.

Sometime in the mid 1990's Mad Dog received a notice to report to  the Rockville, Maryland Courthouse at  the Montgomery County seat for jury duty. Mad Dog's initial reaction was dread and anger: Mad Dog was in the private practice of medicine and if he were taken out of his office for a week he would have trouble meeting his payroll, his rent and his expenses, while most of the members of the jury pool would be getting a free holiday from their government and corporate offices. 

But when Mad Dog was seated for a trial the judge assured everyone this would be a one day trial and Mad Dog quickly became enthralled by the experience:  The defendant was seated at a table in the courtroom and the jurors filed in and took their places in the jury box. Mad Dog was the 13th juror, the alternate juror.

Looking around him at his fellow jurors, and then across the room at the defendant, Mad Dog could see immediately this defendant was marked as clearly "guilty" and stood next to no change of acquittal. The jurors looked much like Mad Dog, white, dressed in the wardrobe of  Ann Taylor, Brooks Brothers, Talbot's, Barney's--white bread through and through. Guido, the defendant hand been cleaned up for the occasion:  clean shaven,  dark slacks and a new, pressed shirt, but the clean up would not help Guido, whose dark, slicked back hair and Hispanic/Mediterranean features marked him as guilty, guilty, guilty.

The judge asked the jury if anyone knew of any reason he or she should not hear this case of the sale of marijuana. Mad Dog raised his hand and the judge told him to approach the bench and they turned on some white noise machine and the prosecutor and the public defender flanked Mad Dog as Mad Dog explained to the judge Mad Dog did not believe selling or using marijuana ought to be illegal.  The judge asked Mad Dog, "But if the state could prove to your satisfaction the defendant did in fact sell marijuana and that selling marijuana in Montgomery County is illegal, could you find the defendant had violated that law?"  Mad Dog had to admit, meekly, he could. That satisfied the prosecutor and Mad Dog was told to go take his seat. 

The only witness for the prosecution was a florid faced Montgomery County detective named O'Shaunessey (or something Irish) and he testified he had been sitting in his car, with a delicatessen sandwich on a waxed paper wrapper in his lap, looking through binoculars at the housing project buildings 150 yards away, across a playground and walkways. He was on a stakeout on a separate case, looking for some felon, when he saw a young man in a red tropical shirt drive up, park and start talking to Guido, who had been working with his brother, under the hood of his car. Guido reached into his pocket pulled something out and slapped the hand of the red shirted guy and Detective O'Shaunessey knew, from years of observation, he had just seen a drug deal go down, and the pass off of a packet of something illegal and the exchange, with another hand slap of cash. 

O'Shaunessey reached for his radio and rained down mayhem upon the playground and environs of this housing project,  as half a dozen Montgomery county police and detectives swarmed over the grassy knoll, guns drawn, brushing aside squalling infants, and young children, and their mothers and nannies, as they raced across the 150 yards, toward Guido, his brother and the unfortunate buyer in the Hawaiian Punch shirt. 

By the time the cops reached the scene of the crime, Guido had disappeared into his apartment building and the cops arrested his brother, who had just lifted his head from under the hood and was bewildered, thrown to the ground, arms pinned behind his back, handcuffed and told he had just sold some drugs to the tropical shirt felon.

Guido then emerged from his apartment and breathless cops realized they had arrested the wrong guy and they arrested Guido. It is not clear how long Guido's brother had his arms pinned behind him. 

Presented to the jury for their viewing pleasure and edification was the roll of cash found in Guido's pocket, the cell phone he carried. Guido had no drugs on his person. Hawaiian Punch had a packet of marijuana in his pocket.

The prosecutor held up the roll of cash and the beeper confiscated from Guido at the scene and said, "This money, this beeper, which is used by drug dealers to set up sales,  is all the evidence, taken with Detective O'Shaunessy's testimony, you need."

Now the beeper as an incriminating article struck Mad Dog as particularly bogus. Mad Dog ran an inner city clinic in Washington, D.C. and every 13 year old carried a beeper. Most of these beepers were not even operational--that would have meant a monthly bill and required a credit card. They were simply status symbols. If you had a beeper, you were cool, a player. The prosecution never even established Guido's beeper was activated. The roll of money, Guido's lawyer explained, was no crime, no indication of venality. Guido, like many project people, had no bank account, no checks and lived on a cash economy and the arrest occurred on a Tuesday afternoon, and Guido had just been paid.

Guido's public defender made one tactical error, by saying Guido had purchased the beeper because his girlfriend was pregnant and he needed to be reached when she went into labor, which suggested to the white, upper class Montgomery County jurors: A/ Guido had fathered a child out of wedlock  B/Guido did not live with the mother of his child and C/ Guido likely did not support the mother. D/ The mother was likely some 13 year old child, living with her parents, who would not allow Guido near her except for the event of the delivery, because they knew Guido was a no good scum bag, a point of view the jurors, at a glance, could readily understand.

To Mad Dog, if the story were true, it suggested at least Guido intended to do the puffing and panting with the mother of his child at the delivery.

Probably none of these assumptions was true.  But the fact all these assumptions were in play suggests an explanation why the vast preponderance of convictions for marijuana sale and possession occur among the underclass in America although the numbers of middle and upper class children and people who use the drug vastly outnumber those in the underclass who do.

After the testimony, the judge instructed the jury which rose to go deliberate in the jury room and Mad Dog prepared his impassioned argument for acquitting poor Guido,  when he heard the judge call his name and summon him to the bench. The judge said, "Those also serve who only watch and wait." And the judge dismissed Mad Dog, who would not be allowed in the jury deliberations with the 12 real jurors.

In the hallway, the prosecutor and the public defender collared Mad Dog to ask how he would have voted. Why these two were so interested escaped Mad Dog. But they were 20 somethings and they had done at least some work on the case, and it was a game to them and they wanted an early signal about who might win. 

"I'd have voted to acquit," Mad Dog told them. "The cops arrested the wrong guy initially which speaks to confusion about who actually saw what when. And no drugs were found on Guido. No packet was actually seen through the binoculars. In fact, the major risk to public safety that day was all the police with their fingers on their triggers, running around among a dozen children on the playground. If anyone should have been charged, it should have been O'Shaunessey for reckless endangerment."

The prosecutor told Mad Dog, the only other juror he had as a choice for  the 13th juror was someone who had been convicted of marijuana possession a decade earlier. So Mad Dog, even after his statement to the judge looked like a better bet. Even in that white bread county, they couldn't find 14 people who had never used or admitted to using marijuana. 
 

So Guido went down, found guilty, found guilty by a jury of his peers, convicted of selling a packet of marijuana, sent off to jail, missed the birth of his son, likely lost his job at Jiffy Lube. 

The whole concept of being tried by a jury of your peers, as Mad Dog understands it, arose in English law and was incorporated by the English colonists who wrote the American constitution. No peasant wanted to be judged by a jury of disdainful aristocrats who would not know about the status symbol value of a beeper (or its 18th century equivalent) among the peasants. But that jury of your peers thing has been perverted by the complexities of class and class resentment and disdain in America today. So the poor get tried in front of a jury of their betters and they get sent to jail more or less ruthlessly and ineluctably. 

Maybe he's moved to Washington State by now, where he would likely be arrested even today, for selling marijuana on the black market.  

As Keefe observed in the New Yorker:  "When legal marijuana goes on sale, sometime next spring, the black market will not simply vanish; over-the-counter pot will have to compete with illicit pot. To support the legal market, Kleinman argued, the state must intensify law-enforcement pressure on people who refuse to play by the new rules."

It's third season of the wire, coming to real life, where Major Howard Colvin's experimental "Hamsterdam" emerges on the streets of Washington state. As David Simon and the Wire ensemble so intricately and clearly showed, the results of drug legalization, even for the most benign drug, marijuana, will likely not be pretty and will create new problems. 

Hopefully, the new problems will be less damaging than the current problems. But watching that third season should be required viewing for legislators from New Hampshire to California.

It's all right there, in the good book called "The Wire," if anyone would actually brave up and watch it.