Congratulations, BJ Marley! Best First prize package winner!

 

CIMGP2797ongratulations to BJ Marley! Ruff the Cat pushed the button on the random number generator and chose you the winner of the Best First prize package! Send your mailing address to me at leslie AT lesliebudewitz DOT com, and the package will go in the mail next week — after I come back from Malice Domestic, where the Agatha Award winners will be chosen!

 

Green Conflict — Marijuana Businesses and the Law, Part 1

Cannabis_sativa_001Green Conflict — Marijuana Businesses and the Law, Part 1

In life, and fiction, the growing (ha ha) business of marijuana is complicated—and so are the legal issues. I recently attended a CLE (continuing legal ed) seminar on Marijuana Business Legal Considerations. In this two-part post, I’m summarizing some of the key issues and suggesting a few areas with story potential. (As with all my posts, all comments here are intended solely to alert fiction writers to issues that may give them story ideas or suggest where further research is needed; for advice in real life situations, consult a lawyer admitted in your state.)

The status of the law: Basically, the field is an evolving, squishy, mish-mash of a mess—which makes writing about it both tricky and intriguing. Short version: Because Congress has not legislated the issue, the federal response to the increasing acceptance and state-legality of both medical and recreatiional marijuana is primarily regulation by policy. The federal government still views marijuana use and possession as illegal, but will not enforce anti-drug laws where the states have adequate regulation and enforcement. That, of course, varies tremendously. Currently, twenty-three states and the District of Columbia have legalized some form of medical marijuana. Four have legalized recreational use, which has created new regulation structures. (Even within a state, the medical and recreational regulations may vary widely, as in Colorado, where, for ex., some communities chose not to allow recreational licensing.) The federal priorities—set out in the 2013 Cole memorandum—include keeping the pot and associated money away from kids, the black market (including organized crime and criminal gangs), and other states, and preventing violence, drugged driving and public health problems, and grow operations on public lands.

Will that change with a new attorney general? Maybe, maybe not. The current nominee, Loretta Lynch, chaired the advisory committee when the 2013 “Cole memorandum” stating current policies was issued, but that’s no guarantee that she agrees with all its provisions.

Enforcement and its impact: Common enforcement avenues include raids and arrests, letters to landlords, enforcement partnerships with municipal authorities, and seizure/civil asset forfeiture procedures. Lots of story potential here. During a brief period in Montana, when medical marijuana looked more like the Wild West than the Race for a Cure, green entrepreneurs seemed to be setting up business on every corner. Few state laws reined them in. The feds stepped in—to the astonishment of some and the relief of others—with raids and arrests that created some genuine confusion. Most of the shops disappeared as quickly as they sprouted, and the state legislature and courts continue to struggle to develop a system that carries out the intent of the voters when we approved medical marijuana years ago but doesn’t allow every ex-jock with a bum knee a medical pot card.

Consider a character who owns rental property—commercial or residential—and gets a letter warning of potential legal action, including loss of the property, for knowingly renting to tenants engaged in illegal activity. What if a couple owns the property jointly—and one knows of the tenant’s illegal activity, but the other doesn’t? What about a couple who owns their own home and forfeiture raises its head—can an innocent spouse prevent a forfeiture, or lose her home and major asset? In the seminar, the Colorado attorney speaker said no rental properties have been seized; one of the Washington lawyer speakers said three property owners there have lost buildings to asset forfeiture, but each was involved in the illegal business. But in all states, the risk creates fear for landlords and lenders. How will those fears and risks affect your characters?

Other issues: Can a medical marijuana cardholder legally own a gun? Yes. Can he legally buy a gun? No. According to the speakers, the dealers eventually sought policy clarification; what’s evolved is a version of “don’t ask, don’t tell.”

What’s the effect of marijuana usage on other government benefits, such as housing assistance? One speaker told of a client who lost her federal Section 8 housing voucher because she had a medical marijuana card; she got it back, but the situation points out that the various state and federal housing assistance agencies have had to work out their approach and establish policies as well. Obviously, the problem of access by kids comes up here, and the evolution of recreational access complicates things even further.

If you’re writing a story set on or near an Indian reservation, look at tribal control. The basic federal policy applies there as well, but of course, tribes are sovereign states. So far, the federal government seems to be allowing tribal regulation consistent with the regulations in the state where the tribe is located.

In the states, medical and recreational use are regulated differently. Colorado seems to have the most evolved systems, although they differ. For example, recreational marijuana undergoes testing and tracking not currently required of medical marijuana. Colorado initially required “vertical integration” or “seed to sale” control within one business, but that’s already changing, in part because of the expansion into recreational use, and because that model forced growers and sellers to merge or form partnerships that did not always work out. Caps on amounts a user can purchase may change.

Follow the money—or the water. Is the local water board okay with a cultivation facility locating there? What about state health department regulations, including sanitary standards? Are water and other waste products being properly disposed of? Beware the sanitation inspector with a citation pad and a grudge.

Banking issues are potentially huge. Some banks have feared making loans to marijuana businesses and even feared holding deposit accounts, because of the risks of being held criminally liable for aiding and abetting criminal activity. But in the modern world, no business can function without a bank account—some mandatory government payments, such as payroll taxes, can’t be made in cash. There are now federal guidelines—again, not laws—addressing money laundering that may come into play. A banker character may allow you to introduce all kinds of personal and legal conflicts.

Maybe the banking regulations—or the fear of running afoul of them—mean your character can’t get a loan, whether to finance a marijuana greenhouse or to expand a plant building grow lights commonly used in the pot industry. Does that make him vulnerable to predatory lending? (Usury rates typically don’t apply in commercial context.) What about an unsavory venture capitalist? (Colorado has strict requirements that licensees and investors in fact live in the state.) Your story facts may create fertile ground for that organized crime element that the federal policy wants to prevent.

Another big issue? Taxation. Colorado has an intricate taxation system; is your fictional pot business following, or flouting, the law? Remember Al Capone: The notorious criminal went to prison for tax evasion. “Trafficking” technically includes marijuana businesses, even if state-legal, so under IRS provision 280(e), those businesses could not take business deductions—meaning they were taxed on gross receipts. That was challenged; businesses can now deduct the cost of goods sold, though not other business deductions. Easier for wholesalers and growers than for retailers, who can only deduct their wholesale costs and not the costs of rent, equipment, advertising, and the like. There will be state tax issues as well—and the speakers made clear that Washington and Colorado take very different approaches. As one speaker, Jeffrey Gard of Colorado, said, legislators across the political spectrum agree that the marijuana industry should be taxed to the state’s benefit. So your fictional marijuana dealer will need a good accountant and a tax attorney.

A new federal wrinkle? After I wrote this but before it went up, I learned of a new provision in a congressional spending bill that would prohibit the Dept of Justice from spending money to prevent states from “implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” The New York Times reports that one California man, a medical marijuana seller, convicted under federal law has asked the Ninth Circuit to order DOJ to stop working on his case, arguing that spending any money on his case would violate the law. The Times says “But the Justice Department strongly disagrees, asserting that the amendment does not undercut its power to enforce federal drug law. It says that the amendment only bars federal agencies from interfering with state efforts to carry out medical marijuana laws, and that it does not preclude criminal prosecutions for violations of the Controlled Substances Act.”

Changes in state law: And then there’s this, passed so recently I haven’t read the article, let alone the bill, changing medical marijuana in Washington State.

Stay tuned.

We’ll wrap this up in two weeks.

Remember your first? A #bookgiveaway

First crush.
First puppy.
First kiss.
First novel.

leslie budewitz agatha award winner 2013

Okay, so maybe they don’t all stand out in the same way, but the fun of discovery never gets old. To celebrate the Agatha Award for Best First Novel, which will be awarded next week at the Malice Domestic Mystery Convention—and the anniversary of my win last year, for Death al Dente—I’m giving away copies of three of this year’s nominated books:

IMGP2797Tagged for Death, by Sherry Harris,
Well Read, Then Dead, by Terrie Farley Moran, and Murder Strikes a Pose, by Tracy Weber (signed copy).
(The other nominees are Circle of Influence, by Annette Dashofy and Finding Sky, by Susan O’Brien, but I’m still reading!)

And as a bonus, I’m adding Kilmoon by Lisa Alber, a nominee for the Rosebud Best First award at this year’s Left Coast Crime, held in Portland, the Rose City, and the fun convention bookbag.

To enter, leave a comment on my blog or my Facebook Author page mentioning some memorable first—your first love, your first house, the first mystery you read, a favorite first novel, any “first” that still gives you a smile—by midnight Wednesday, April 29. Ruff—the first Burmese cat I ever met—will punch the random number generator on Thursday morning, April 30.

(U.S. addresses only)

The Saturday Writing Quote — the role of passion

IMGP2339“Passion is a clear sign that your intuition is working and you’re following its guidance. You’ll notice a feeling of excitement and enthusiasm flowing through you when you’re doing something you truly love. … When you have passion, intuition has no boundaries.”

— John Holland, American psychic, writer, and teacher

(photo: McDonald Creek, Glacier National Park, by Leslie)

What happens in an inquest after an officer-involved shooting

I regularly read the Seattle Police Department Blotter for news on local investigations and on the police department itself. Check your story state and city for a comparable source; you’ll get info and ideas on all points of the horror-to-humor scale.

What caught my eye today was this blog entry outlining the investigation and inquest that followed a shooting death by an officer of a man who had led him on a chase and whom he believed posed a threat. The entry includes a copy of the list of questions given to the jury and other details, including video. If you write about cops, whether or not you plan to write about a shooting, I think you’ll find it interesting.

When the officer ordered the man to come out a shed where he was hiding, the man yelled that he had a pistol. He then aimed it at the officer, who fired several shots and killed him. Turned out to be a pellet gun with the tell-tale orange tip removed. The jury decided the shooting was justified, because the officer reasonably believed the man posed a threat of imminent threat of death or serious injury to him or other officers.

Stolen Evidence

I’m continuing to reprint a few articles from my website, to keep them available after a redesign. This one was originally published in 2009.

STOLEN EVIDENCE: Is stolen evidence admissible in court–and how will it affect the case?

In a mainstream novel I recently read–and enjoyed–a legal secretary tells the protagonist that an object he took from a murder victim’s home can’t be used because stolen evidence is inadmissible.

Now that’s just pure fiction. Nothing in the Rules of Evidence precludes the use of stolen evidence–unless it was stolen by the police, which is a whole ‘nuther matter, and not one we’ll talk about today.

So, what should have happened when the client’s son walked into the lawyer’s office with stolen evidence? First, the secretary should have been very careful what she discussed with him. While it’s tempting to share information with family members, the attorney-client relationship is with the client, not the family. The lawyer’s obligations are to the client–regardless who’s paying the bill. That may mean drawing some lines–not always easy, or comfortable. More often, it means seeking and accepting information from relatives, while exercising extreme care in what is said in return. The client gets to make the final decision, and should be consulted before critical information is shared. Revealing information to a non-client could also violate the attorney-client privilege, which belongs to the client and is waived if the information is shared with a third person. As well, relatives don’t always have the same goals and interests–especially if the evidence could implicate them, or someone else close to them. Ratchet up conflict by creating relatives who refuse to be left out of the loop.

Keep in mind that staff are bound by the same rules as lawyers on issues like confidentiality and conflicts of interest.

Next problem: The secretary should not have made a pronouncement about what’s admissible in court and what isn’t. Experienced legal secretaries can be very knowledgeable, but good ones are careful not to step into the role of the lawyer and to avoid offering legal opinions. To her credit, the fictional secretary did tell the client’s son to show the object to the lawyer, and he promptly did. The lawyer quickly recognized its significance to the defense. That’s when things get tricky.

An object has evidentiary value because of what it demonstrates or suggests–that is, whether it makes the existence or non-existence of a material fact more or less probable. Whether the object was stolen won’t usually affect that determination. But the theft may raise other questions: where has the item been, has it been tampered with, why was it stolen, and is the thief credible? In other words, as lawyers say, “it goes to the weight” of the evidence, not its admissibility–that is, how much credence and value the jurors should give it.

In that story, the criminal investigation was incomplete, but far enough along that the crime scene had probably been released. The police either did not find the object–or more likely, given its nature, didn’t think the item had any evidentiary value. Under the U.S. Supreme Court decision in Brady v. Maryland (1963), prosecutors have an obligation to disclose to the defense any “exculpatory evidence”–meaning material evidence helpful to the defense–even without a specific request. Failure to do so is reversible error, if the appeals court concludes that the evidence was material and could well have created a reasonable doubt about guilt. In Brady, a murder case, the prosecution withheld a co-defendant’s statements admitting the actual killing. Failure to disclose was clearly reversible error. In the fictional case, if prosecutors had the object and knew its potential impact, they would have been required to disclose it.

But the defense lawyer quickly recognized the object’s import. So what are his obligations? Brady doesn’t apply to the defense. Why? Because in a criminal case, the government has the burden of proving its case beyond a reasonable doubt, while the defense doesn’t have to prove–or disprove–a thing.

Still, defense counsel may be required to disclose the evidence in the discovery process, and even if not, may choose to do so for other reasons. “Discovery” is the legal process of exchanging information about the case. In olden days, trial was often by surprise, but in the modern era, with codification of the Rules of Civil and Criminal Procedure and the Rules of Evidence, the system trends toward disclosure. Discovery is limited to facts–neither party has to reveal its strategy or arguments.

In some states, the rules require reciprocal discovery. Others require advance disclosure of persons known to have relevant information, or of witnesses, exhibits, and physical evidence the parties intend to use at trial. Written notice of certain defenses may be required, most notably the intent to rely on an alibi. Disclosure allows the other side to investigate and respond appropriately. Disclosure also promotes “judicial economy”–meaning that trials will proceed more smoothly and quickly, and unnecessary trials will be avoided.

Plus, disclosure could give defense counsel sufficient grounds for dismissal, or for negotiating a plea to a lesser charge.

Back to the fictional case: If the crime scene hadn’t been released, the defendant’s son could be charged with tampering with evidence–or the equivalent local crime. Prosecutors could charge him with theft. Make it more or less likely depending on how much heat you want to put on your character. The lawyer could also be charged with receipt of stolen property, another reason why he or she would probably report the incident to the prosecutor. Receipt of stolen documents may be one charge in a possible prosecution against WikiLeaks, for publication of documents known to have been obtained without authorization.

Bottom line: Be careful with your assumptions. Stolen evidence may be admissible–if it’s relevant. Problems in its acquisition go to weight, not admissibility. Court rules and ethical obligations bind staff as well as lawyers. An attorney’s obligations are to the client, not the family. Prosecutors must disclose “exculpatory evidence.” Local rules on disclosure of other evidence vary–check them out. And remember that there may be good reasons for disclosing information even when not required, if it can help the client. At any point along the way, things can go wrong–and for a fiction writer, that’s good.

The Saturday Writing Quote — creativity and the divine

05_Bunny1Profile_WC_WEB

“Artist Michele Shea says that being creative is a way to be a playmate with the divine. From the seemingly silly to the seriously sacred, your world awaits your creative touch.”

— Sera Beak, The Red Book: A Deliciously Unorthodox Approach to Igniting Your Divine Spark (2006)

Go on. Be silly today, and see where it takes you. This bunny is waiting to play! 

(watercolor by Leslie)