Georgia Criminal Trial and Appellate Law Blog

Watch out for that Chocolate Contact High at the Next Bake Sale

Nearly every agency in Georgia uses the Duquenois-Levine test as a screening agent for THC, the active ingredient in marijuana.  The test is cheap, easily stored, and even recognized as scientific to prove that a substance is marijuana in the State of Georgia.  See Cunrod v. State, 241 Ga. App. 743 (2000).  The reagent has been around for approximately seventy years (strange to imagine people smoking the stuff seventy years ago).  Our Georgia Court of Appeals approves of this test as scientific at a criminal trial.

The test does react to THC, but it also reacts to other things including Hershey's Dark Chocolate Kisses, plain chocolate M&Ms, and shavings from Thin Mint Girl Scount cookies.

In fact, the test shows positive for THC with Cocoa Puffs (not saying it's coo coo). 

Well, on sight, it would be difficult to confuse marijuana with chocolate.  The KN reagent test, another popular screening tool, also tests positive for oregano and thyme.

Of couse, you might also think that, since these tests are just used in the field, there is not much risk of a misidentification.  However, Georgia does not require any further testing for marijuana other than microscopic examination, the fast blue salts test, and the D-L test.

Further testing is done at the GBI crime lab, but the turnaround can be months.  During those months, a defendant may be held without bond and under the cloud of suspicion for being charged with a drug offense.  Unfortuntately, there is no screening tool to give you your reputation back.

For more on chocolate and THC see the April edition of The Champion, NACDL's magazine.

The Photo is Sometimes Best Not Admitted

I had a trial the other day.  Midway through, I had some pictures that I wanted to put into evidence.  In the jury's presence, the prosecutor objected on relevance grounds, and we had a little debate about admissibility right in front of the jury.  The debate turned into a lengthy bench conference, and the bench conference turned into an argument and proffer outside the jury's presence.

Then the photos were deemed admissible.  In retrospect, I bet the pictures would have helped me far more had they been excluded.  Then, the jury would have been left to imagine just how bad they were and upset that the State didn't want them to see the light of day.

With their admission, they were what the were -- worth a thousand words, true.  But the photo in the mind's imaginative eye, how many words would it have been worth?

When Race Really is an Issue in a Criminal Trial in the Atlanta Area

It was a very interesting case that I defended last week.  Let's start at the end.  There was one African-American juror, and the rest were white.  Our trial was in a suburban Atlanta courtroom in a community that was rural fifteen years ago. 

After deliberating for fifteen minutes, the African American juror was elected foreperson, and she delivered a not guilty verdict.

The judge was white, the prosecutor African-American American, the bailiffs were white, and the judge was white.  The defense attorney (me) is a white man.  The arresting officers white.  The defendant a Hispanic school teacher who grew up in Queens, New York, in "public housing," according to his testimony.  He grew up and became a special education teacher. His principal testified to his character, as did his pastor, as did his friend and co-worker.  Everybody smiled to talk about him and his work with children.

The charge.  An off-duty officer claims that he didn't like the way my client was driving.  He calls 911 and asks a fellow officer to pull him over because "he'd like a word with him."  He writes on his police report that he is a black male.  He's not a black male.

Four fellow officers are dispatched.  The first to arrive yanks him out of his car, slams him into the door, and forcefully cuffs him.  My client is roughed up.

In his defense, the man offers up, "I haven't done anything.  I'm a teacher.  I'm a teacher"

The off-duty officer screams at him, "I don't care if you're teacher.  I don't care if you're a nigger.  I don't care if you're a Jew.  You're going to jail."

To cover up for beating up the man, the police claim that he "obstructed" them by resisting arrest.  Why exactly was he under arrest?

The jury saw it clearly. 

The prosecutor went forward after the officer was caught making up things that didn't correspond to the 911 tape (he didn't know I had the 911 tape and felt free to lie at will).

The prosecutor became indignant in her closing and accused me, the defense attorney, of "playing the race card."  After the fifteen minute not guilty verdict she left the room.  No after-the-trial handshake and polite, "good job."

The arrest, by the way, took place one day after the presidential election.

Race has a place in our courtrooms, particularly when it motivates those in our justice system to act with injustice.  While it should not be a tool for manipulation, we should never fear bringing it up.  To deny it when it exists is to do an injustice to more than my client.  And when I can countenance not bringing up race, particularly when it is the big ugly elephant in the room and when it motivates brutality against an innocent man, is the day I should surrender my bar card.