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
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