10 YEARS FOR 2 JOINTS
When I was arrested in January 1967 for allegedly
"dispensing and possessing" two marijuana
cigarettes I still had some faith in the so-called judicial process, and
I was eager to test the constitutionality of Michigan's archaic marijuana
laws. I had pled guilty twice before to possession charges (reduced
from sail), the first time (December 1964) because I didn't know any better,
the second (February 1966) because the attorney I had retained refused
to fight my case in Recorder's Court and insisted that I plead guilty to
the reduced charge of "possession" because, as he said, the penalty for
"sale of marijuana" was too excessive to risk the possibility of losing
the case. Any jury in Detroit, he said, no matter how strong and
how right our case is, will automatically find you guilty no matter what
you say because it's the cop's word against yours and they always believe
the cop.
In Michigan, a citizen convicted of possession of
marijuana, in whatever amount, is subject to a prison sentence of from
one to ten years in the state penitentiary, and the judge has the option
of ordering "probation" rather than a prison sentence if he feels like
it. A conviction for sale, transfer, dispensing without a license,
or giving away marijuana in whatever amount automatically rings a mandatory
20-year minimum sentence, with up to life imprisonment as the maximum under
law. No probation is possible.
Usually in these cases the police don't bust people
for possession unless it's by accident: they find marijuana in your
possession during a "routine search," or in the event that you are on the
scene of an arrest in a friend's house when the police are raiding it,
something like that. Maybe as happened to a lot of people I know,
you are being pulled over for a traffic offense, have some grass on you
and throw it out the window as you're being pulled over to the curb.
But the police usually push for a sales warrant, and to get these they
almost always employ undercover agents of one type or another. These
undercover spies, who may be either police officers or insane private citizens
who work for the police out of some weird sense of loyalty to a cause I
can't begin to fathom, go to elaborate extremes in order to buy or otherwise
obtain marijuana from the real dealers of marijuana, or, more frequently,
from someone who has a little stash of his own but can be persuaded to
part with some it, either gratuitously or for a small sum of money - usually
just enough to cover what he paid for it.
When a suspect is persuaded - or entrapped, as is
usually the case - into giving or selling some marijuana to an undercover
agent, the arrest may be on the spot, a few minutes later, or at any time
thereafter. Often an undercover agent is working on a number of "suspects"
at the same time and waits until he makes a number of purchases before
"blowing his cover" and making a mass arrest. In these cases a huge
police raiding crew descends on the criminals' lair(s) and rounds up all
the victims in a big "dope raid." At these times large groups of
otherwise innocent people are often rounded up to increase the shock value
of the arrest sequence and guarantee bigger and better headlines in the
next day's papers. These people are usually held overnight and released
in the morning, without charge, after the papers hit the stands - unless,
of course, they were unfortunate enough to have been holding a couple of
joints themselves, in which case they are charged with possession, arraigned,
and released on bond if they can post it pending a trial date.
The next step is the court proceedings, which rarely
end in a full-scale trial for sales or dispensing. First is the arraignment,
where the defendant is charged with the crime or crimes, and a "reasonable
bond" is set by the arraigning magistrate. Often this ranges from
$1,000 to $25,000, depending solely on the judge's personal discretion.
The next step is the pre-trial examination, at which time the state, or
prosecuting attorney, demonstrates why you are being charged with a crime
and asks the judge that you be "bound over" for trial. The police
witnesses testify at this examination, and their task is to show that a
crime has been committed and they have reason to believe that you committed
the crime. Rarely does the defense offer any explanation of your
point of view at this juncture, unless your attorneys feel that the case
can be thrown out before it goes to trial.
The next stage is the "dealing" stage, where your
attorney and the prosecutor get together to figure out how to get out of
a full-scale trial but still get a conviction on the books. The defendant,
or victim, is offered a deal by the prosecutor, working through the defense
attorney, who tells his client that the prosecutor and the judge have agreed
to drop the original charge - usually "sale" - if the defendant agrees
to plead guilty to a lesser charge - usually "possession." If possession
is the original charge, the reduced charge, or plea, can be "attempted
possession" (1-5 years) or, in extreme cases, "use and addiction" to narcotics,
which carries a maximum one-year work-house or county jail sentence and
is technically a misdemeanor. The other crimes are all felonies.
Since the penalty for "sale" or "dispensing" (giving
away) marijuana carries a minimum-mandatory 20-year sentence on conviction,
few lawyers and few defendants are anxious to take their cases to trial,
and a "plea," or "cop-out" ("copping a plea" is another way to put it),
can easily be arranged in most cases. Exceptions are when there is
what the prosecutors call "too much publicity" involved, which is weird
because they're always the ones who call the papers and generate the publicity
in the first place. But then little of this process makes any objective
sense - these people live in a whole weird world of their own.
The prosecutors and judges are usually amenable
to a guilty plea to a reduced charge because they then have little work
to do and get a free conviction on the books, which makes them look good
in the statistics race.
Prosecutors hate to dismiss charges in any criminal
case because it makes them and the police look bad at year's end - their
ideal is a conviction for every arrest. The more convictions they
get, the more efficient they look and the public is more easily convinced
that crime is on the rise and the whole business of arrests and prosecutions,
probations and jails and paroles is necessary and vital to "law enforcement"
and "justice."
After the plea is agreed upon, the defendant pays
his lawyer some more money, gets a haircut and a shave, puts on a suit
and tie and goes to accept his sentence. The magistrate, generally
in a haughty, self-righteous mood for this final degradation of the defendant,
insists that the victim has made this choice of his own free will, has
not been promised leniency by anyone involved, and is truly guilty of the
crime he is charged with. (This gets a little ludicrous when the
"crime" is something like "attempted possession" or "addiction to marijuana,"
but then the whole scene is pretty ludicrous anyway unless you're the unfortunate
victim of the hoax.) After the defendant lies though his teeth with
bowed head and shameful demeanor, the judge then gives him a little lecture
on morality and sentences him to a term of 2 or 3 or 5 years' probation
and a few hundred dollars' court costs, and the defendant goes back to
his old way of life. It gets scary at sentencing sometimes because
you never know if the judge is going to follow the official line, as your
attorney has told you (and his word is the only thing you have to go on),
or if he will throw the whole script out the window and send you away for
10 years.
I have gone through this travesty
of justice twice in my life, although the second time I was also given
an additional bonus in the form of six months in the Detroit House of Correction
- the judge, an old, decrepit, doddering fool shaking with age and impotence,
muttered something to the effect that "he had a plan" and "it will do you
good." He also threw in $300 "court costs," which went with the $2500
"legal fee" which covered my valiant attorney's dealings with the prosecutor
and the judge. As I said, I had intended to fight the case but the
lawyer changed his mind after he'd already ripped me off for $1500 and
it was two weeks before the scheduled trial date when he announced that
we couldn't possibly try to win.
I had wanted to fight the case on the grounds that
I had been entrapped into making a purchase of marijuana from a third party
for the undercover agent, who called himself "Eddie." "Eddie" had
bugged me for more than three weeks solid in the late summer of 1965 to
sell, give, or obtain some marijuana for him. But after my first
arrest almost two years earlier I had quit dealing in marijuana in any
way because it was too much trouble and I didn't want to get busted again.
This cop "Eddie" was an unsavory punk and I didn't trust him or like him
even, but he was at my house or on the phone every day, sometimes two or
three times a day, and I decided that the best way to get rid of him was
to cop him some worthless weed and beat him for the money (overcharge him)
so he'd leave me alone in the future. Of course I didn't know that
he was a cop, but I did know that whatever he was, I didn't ever want to
see his ugly face again.
So I set up a deal with a guy I knew over on the
west side (of Detroit) who was selling weed for a living, and I had "Eddie"
drive me across town to the guy's house to cop. I went in, gave the
dealer Eddie's money, and took back an ounce of terrible grass which I
gave to Eddie. He drove me back to my house and dropped me off.
Five minutes later, just as my wife and I were preparing to walk out of
the house to get something to eat, the raiding team started climbing through
the windows and busting down the doors, guns in hand, handcuffing everybody
in sight and tearing the house apart. They arrested everyone in the
house and took us down to "headquarters," as they so quaintly call their
down town fortress.
In the morning the newspapers blared that the vanguard
of "Detroit's finest" has "smashed campus dope ring" and that I was the
"leader" of this notorious bunch. Pictures of me and my beard demonstrated
the seriousness of my offense, and the police revealed that they had busted
up a "smoking session of beatniks." Innuendoes were made about my
German born wife and a paragraph at the end of the story told how members
from the Detroit Committee to End the War in Vietnam stood outside the
scene of the raid and hollered about the "rights" of the victims.
It was a masterful story, and the citizens undoubtedly rested a little
easier in their homes that night, knowing that their police were keeping
the city safe from dope fiends and criminals like me. Incidentally,
the raid also took place just before school opened in the fall, and there
had been much talk of increasing drug use at Wayne State University, but
with my arrest the parents of prospective students were assured that there
was nothing to worry about now.
The detective who had masterminded the big raid,
a plain-clothes sergeant named Warner Stringfellow was promoted to Lieutenant
shortly after my arrest and "conviction," and I saw him again by accident
after I was released from the House of Correction. He asked me if
I remembered him, and I told him in no uncertain terms that I knew exactly
who he was and would he please get the hell away from me. He got
mad and ended our conversation by promising to "get me" again, and "this
time we won't be so easy on you, you prick!" Within ten days, according
to police records which were subpoenaed at my trial, Stringfellow had assigned
undercover agent Vahan Kapigian, alias "Louie," to my neighborhood, with
specific instructions to "get Sinclair."
Kapigian's first appearance, according to his notes
filed with the Narcotics Bureau at the time, was at a poetry reading at
WSU where I read a new poem I'd written about Lt. Stringfellow, which Kapigian
described in his report as "obscene." The agent was disguised as
a human being, wearing a beard, long hair, a beret and casual clothes.
His next appearance, the following Friday night, was at the newly opened
Grande Ballroom, which he described to the Bureau as a place where "Sinclair's
followers" went to have a good time. He tried to buy marijuana from
a number of people there, including Fed Smith of the MC-5, but was unsuccessful.
He also started attending meetings at the Artists' Workshop and "infiltrated"
the organization which I had helped establish two years before. Soon
he brought another undercover spy into the caper - a policewoman
named Jane Mumford, who called herself "Pat," wore hip clothing, smoked
weed, helped out with the typing and mailings, and played up to the males
around the workshop in her attempt to "get the evidence" of their depravity.
Kapigian and Mumford made repeated attempts - they
were on the scene almost daily for three months - to buy, steal, beg, cajole,
or otherwise obtain marijuana from almost everyone in sight. They
were relentless in their pursuit of illegal substances. Since there
were no "professional" dealers in the area at the time they concentrated
on casual marijuana smokers and played on the young people's confidence
and innocent trust to achieve their ends.
When
the police finally pulled their big raid, on January 24, 1967 (Kapigian's
first appearance, according to his records, was on October 18, 1966), the
Narcotics Bureau had warrants for 11 alleged sellers or dispensers of marijuana,
three of whom were actually from other parts of town and had nothing to
do with our scene at all. Included in the raiding party were the
entire Detroit Narcotics Bureau, State police agents, Federal Drug
Abuse Bureau Agents, U.S. Customs agents, and probably some visiting firemen
from Interpol and the CIA. In addition to the eight residents of
our neighborhood charged in the warrants, the heroic raiders pulled in
a total of 43 innocent bystanders who were held without charge and released
in the morning. When agents invaded the Artists' workshop to arrest
Don Moye and myself, for example, they pulled in a total of 15 other people,
none of whom were subsequently charged with a crime. The victims
included all the members of a band that was practicing there and another
group of people who were preparing to start their weekly poetry workshop.
They got front-page banner headlines from this one:
56 Arrested in Campus Dope Raid - Police Smash Ring with Lightning Raid
- LSD may be involved, stuff like that. I was the newspaper "ringleader"
of the criminal conspiracy, despite the fact that I was charged with "dispensing
and possessing" 11.50 grains (two cigarettes) of marijuana and released
on $1000 bond. No one else was charged with the sale or possession
of more than one ounce of grass, and one of the victims, Ralph Greenwood
(who jumped bond and later committed suicide in another state because he
was afraid of getting caught and going to jail) was charged with "dispensing"
one roach, or butt end, of a marijuana cigarette - less than two
grains of the evil substance which he had shared with the undercover
agent.
Others, like Moye, were charged with "sale of marijuana,"
with its 20 year minimum-mandatory sentence, for merely introducing
the undercover spies to a friend, Marlene Kroghan, who allegedly
sold them one ounce of grass. Two more, Michael Knight and Norman
Weingarden, were charged with "sale and possession" of the same matchbox
full of marijuana - about one fourth of an ounce. A student, John
Nagel, was charged with the 20-year-to-life sales count for allegedly selling
the cop an ounce of weed that he'd grown himself, in a windowbox in his
apartment off campus. Two more, Sandy Weinstock and Sheldon Roth,
were charged with the sales count in some weird deal involving less than
one ounce of marijuana between them.
These were the criminals - the dope ring that was
leading the poor college students at WSU down the old primrose path.
All of us were determined to fight our cases in the courts when the mass
arrest was made, but then the dispositions came down I was the only one
who had continued in my resolve to fight the ridiculous charges:
all the others had pled to lesser charges and received probation sentences.
I took my case through the courts and was rewarded with the wrath of the
whole legal system in Detroit, which culminated in a sentence of 9 1/2-10
years for possession of 2 joints of marijuana.
The first move, with the help of my attorney, Dennis
James, was to move for a dismissal of the charges against me on the grounds
that the Michigan marijuana statutes violate certain provisions of the
United States Constitution; namely, that the laws provide cruel and unusual
punishment; that they violate the provisions of "due process of law" in
that no proof has ever been brought to show why marijuana should be illegal;
that they are in violation of the "equal protection" provision on two counts:
(1) that the same penalties are offered for marijuana use and sale
as are offered for heroin and other opiates; and (2) that the same penalties
obtain no matter what amount of marijuana or heroin is involved, so that
a person convicted of giving away two marijuana cigarettes is subject to
the same sentence - 20 years to life - as a man who is convicted of selling
300 tons of pure heroin to 6 year-old schoolgirls. We also contended
that the laws against marijuana use by individuals violated their right
to privacy and their right to life, liberty, and the pursuit of happiness.
The courts decided to hear the motion to dismiss,
and my new lawyers, Sheldon Otis and Justin C. Ravitz, prepared an 80-page
brief supporting our motion. Dennis James, who got the motion before
Judge George Crockett, turned it over to his friends Otis and Ravitz when
he left Detroit to assume his new duties as Executive Secretary of the
National Lawyers Guild in New York City. At the hearing Judge Crockett
decided that the issue was of such import that he couldn't rule on it himself,
and he invoked a previously unused privilege of lower-court judges and
for the first time in Recorder's Court history impaneled a three-judge
tribunal to consider the constitutional questions.
Ravtiz argued the motion before the tribunal which
was comprised of Crockett, Robert J. Colombo, and Judge Maher of the Recorder's
Court bench. On April 17th, 1968, the panel unanimously denied the
motion for dismissal, stating that they felt the question of the constitutionality
of the marijuana laws was too big for them to handle. All three judges
concurred that they felt it wasn't the place of the lower court to make
such decisions on the constitutionality of the laws even though they knew
there were serious questions in our argument that "involved controlling
questions of law as to which there are substantial grounds for differences
of opinion," according to their written opinion.
The defense then moved to appeal this ruling, arguing
that the constitutional questions should if possible be settled before
a full trial of the charges, because if the laws were in fact invalid the
ordeal of a full state trial would be unnecessary and irrelevant.
Ravitz and Otis filed an "interlocutory application for leave to appeal"
to the Michigan Court of Appeals, who denied permission to appeal on December
31, 1968 (two years after the alleged offense has been committed), and
then to the Michigan Supreme Court, who likewise denied leave to appeal
on May 22, 1969, sending it back to Recorder's Court for trial.
It is interesting to note that on the same day
the notice came from the Supreme Court denying leave to appeal the decision
on the pretrial motion, a notice came from Recorder's Court setting the
trial date for June 3rd, 1969. In other words, after the state had
spent two and half years on the pretrial level, the defense was given less
than two weeks to prepare the trial defense. Fortunately,
the trial wasn't able to start on June 3 because the female witness, policewoman
Jane Mumford, was about to deliver a baby. So the trial was postponed
until the 24th of June.
On June 20th the trial judge, Robert J. Colombo,
ruled in response to a defense motion that the "dispensing" charge be thrown
out of court on the grounds that the evidence had been obtained through
"illegal entrapment," i.e. the undercover agent had entrapped me into doing
something I wouldn't otherwise have done. The judge further ruled
that even though the evidence had been obtained illegally, he was still
going to try me for possessing it.
His strategy here was clear to us: Since he
had only the word of the police agents to convict me with, he wasn't going
to try to bring the "dispensing" charge before the jury because they would
find it hard to send me to prison for 20 years to life on the word of an
undercover spy that I had given him 2 joints 2 1/2 years before.
But the possession conviction, with the 1-year minimum on the sentence,
wouldn't bother the jury so much and even though he was legally wrong in
presenting the possession charge, it would take years to get a reversal
of his decision in the appeal courts and he could keep me locked up all
during the appeal.
The trial started June 24th. The formal charge
at this stage was "possession of 11.50 grains of marijuana" on December
22, 1966. The defense moved to have the judge disqualify himself
from hearing the case because he was prejudiced against the defense attorneys,
the defendant and the case itself, but he refused to step down. We
then moved to dismiss the entire jury panel on the grounds that it was
illegally constituted and could not possibly insure me a fair and impartial
trial by a jury of my peers. Ravitz's main argument here was that
since I am a revolutionary, and since revolutionaries in America believe
that social change does not come about through voting, we don't register
to vote as a matter of principle and consequently are denied the opportunity
to serve on juries. Colombo denied the motion. We moved that
the possession charge be dropped on the grounds that the judge himself
had ruled that the evidence had been illegally obtained, but he refused
that one too, and the trial began with the selection of a "jury of my peers."
I won't even try to describe the jury here - just
go into a courtroom sometime and look at the jury for yourself, they're
all pretty much the same especially in their conclusions. The jury
was selected on June 24th, and by June 26th a mistrial was declared.
The state's star witness, Vahan Kapigian, had made, according to Colombo's
ruling on Ravitz's motion, misleading, prejudicial, and otherwise false
statements during his testimony before the jury. In cross-examination
Ravitz asked Kapigian if he had been to my apartment before the 22nd of
December 1966, and Kapigian replied, "Yeah, I was up there when they were
all smoking marijuana." The statement was not only misleading but
it was completely untrue, since he hadn't been there and I didn't even
live there on that date.
The mistrial postponed the trial for another month
and gave me a chance to pick a new jury. Trial was set for the 21st
of July but didn't start until the 22nd because our dear president Nixon
proclaimed Monday the 21st a national holiday in honor of the returning
moonmen. By the end of the week - Friday afternoon at 3:00 p.m. -
the case went to the jury. during the trial Ravitz had demonstrated
that the agents' stories had no objective basis; that the agents had, according
to their own story, ample opportunity to arrest me and to confiscate a
bowl of marijuana they said I had in my possession on December 22, 1996,
but didn't inform me of the alleged crime or arrest me until over a month
later, on January 24, 1967; that the substance involved couldn't even be
proved to be marijuana by the state's chemist; and that the political situation
at the time of the arrest was such that the police could easily have made
up the story about my alleged dispensing of the two joints between 8:55
and 9:05 p.m. on December 22, 1966, and just rounded me up with 55
other people a month later just so they could "get me," as Lt. Stringfellow
had promised before the "investigation" began.
The jury deliberated for an hour and five minutes
before delivering their verdict of "guilty as charged." Judge Colombo
immediately revoked my bond and remanded me to the Wayne County Jail, setting
sentencing for Monday morning at 9:00 a.m.
Monday morning the judge sentenced
me to 9 1/2-10 years in prison for possessing two marijuana cigarettes.
He said in his little sermon that he wasn't "sentencing me because of my
beliefs," he was sentencing me "because John Sinclair and his ilk believe
they can defy the law with impunity" or something like that - a neat exercise
in newspeak double-talk. He also refused to set an appeal bond, basing
his decision on his contention that I would "continue to commit" such dastardly
crimes as possession of marijuana, even though I had been free on bond
for 2 1/2 years on this case without a single arrest for marijuana crimes
and had never missed a court date, and even though Colombo knew there were
substantial constitutional and other legal questions involved in my appeal
which would eventually bring about a victory for me in higher courts.
Colombo's decision to withhold appeal bond in my case was a deliberate
and cynical act of political oppression directed against a political activist
in direct violation of constitutional provisions, just as his prosecution
of me under the law was illegal and unconstitutional. But few judges,
it seems, have any respect for the law when it doesn't suit their own prejudices
and desires.
I was returned to the Wayne County Jail that Monday
morning and shipped to the Southern Michigan State Prison at Jackson the
next day. Ravitz and Otis filed an "emergency application for appeal
bond" with the Michigan Court of Appeals the next day, but the appeals
court turned it down without even reading the application or the supporting
brief. It was enough for them to have read the newspapers.
The application summarized the history of my case and contended that "the
issues on appeal . . . are meritorious and substantial and have not been
resolved in the appellate courts in this State nor in any other states
around the country." Also, the fact that the arrest was made more
than a month after the alleged crime had been committed constituted an
"unreasonable delay" which was "prejudicial to the defendant," were further
"meritorious grounds for appeal," and further reasons why an appeal bond
should be set pending the eventual outcome of the appeal.
Ravitz also argued that "while on bond pending appeal,
Defendant will be employed, earning money to support his family and to
pay for his appeal. No prejudice can result to (the State) by granting
a reasonable bond because, if his conviction is not set aside, his sentence
of imprisonment can be served, thus not denying to the state its right
(!) to said sentence . . . The failure of . . . Robert J. Colombo to set
any appeal bond is an abuse of discretion and constitutionally unreasonable
and excessive and violative of State and Federal Constitutions regarding
bail and of equal protection guarantees thereunder."
In the brief supporting the application, which now
went to the State Supreme Court in Lansing, Michigan, Ravitz quotes U.S.
Supreme Court Justice William O. Douglas (in Carbo v. United States):
Bail should not be granted where the offense of which the defendant has been convicted is an atrocious one, and there is danger that if he is given his freedom he will commit another of like character . . . Moreover, where the constitutionality of an Act is at issue, the likelihood that the applicant, if released on bail, might repeat the offense, is not a proper circumstance to take into consideration . . . For it is deep-seated in our law that one may take his chances and defy a legislative act on constitutional grounds. [Sinclair's emphasis].These statements by a Supreme Court Justice would seem to answer Colombo's allegations and stipulations directly and plainly.
On order of the Court, the emergency motion by defendant and appellant for oral argument on his application for leave to appeal is considered, and the same is hereby DENIED. It is further ordered that the emergency application for leave to appeal from the order of the Court of Appeals denying bond is considered, and the same is hereby DENIED, as the defendant and appellant has failed to persuade the court that he has a meritorious basis for appeal or that the determination of the Court of Appeals is clearly erroneous.Six of these so-called Justices - Thomas Brennan, John Dethmers, Harry F. Kelly, Eugene Black, Thomas M. Kavanaugh, and Paul L. Adams - concurred on the majority ruling, while only one - Thomas Giles Kavanaugh, of Ann Arbor - appears to have even read the brief in support of the motion.
All Power to the People! All Justice to the People!
John Sinclair, Political Prisoner
Minister of Information, White Panther
Party
September 29, 1969