NOT GUILTY ON 83LBS OF MARIJUANA AND STILL NO JUSTICE
Marc J. Victor
On July 2, 2012, the jury returned a verdict of NOT GUILTY in favor of my client who transported 83lbs of marijuana in her mini-van from Douglas, Arizona to the Phoenix area. She was relieved and overjoyed. I was overjoyed too, but left wondering how many like her are living in cages for unknowingly driving a relatively harmless plant destined for adults who want it. The outrageous aspects of this case are too numerous to describe in one article. However, one point is clear; so long as the Drug War persists, no person is safe.
On July 19, 2010, fifty-three year old Maria Carillo-Tremillo was traveling with her autistic daughter from Douglas, Arizona to Phoenix. She was expecting to meet a woman who would assist her in purchasing used clothing from various locations to resell in Mexico at a modest profit. Her mini-van was pulled over by an officer for allegedly following too closely.(1) The officer did not see or detect any odor of marijuana. After issuing Maria a warning, the officer commenced a conversation with Maria in English despite knowing Spanish was her primary language.(2) (3) After advising her of her right to refuse, the officer asked and immediately received unrestricted consent from Maria to search her mini-van.
A drug interdiction dog was immediately deployed. The officer claims the dog alerted.(4) Before any marijuana was found, Maria and her daughter were arrested and transported to the police station while her vehicle was towed for inspection. After lifting the vehicle with a hydraulic lift, a hidden compartment underneath the vehicle was discovered and torn open without a search warrant. Eighty three pounds of marijuana were located in the hidden compartment.
There was no investigation. No fingerprints were requested, and no investigation into Maria’s cell phone or bank records was conducted. There was no investigation into her lifestyle or her reasonable explanation for her trip. She explained how she received the mini-van a few days before the trip from a man who offered to have it “fixed” for her in Mexico. She explained how that same man arranged the trip to Phoenix for her and orchestrated the details of her trip. She had the man’s phone number and information as well as the woman she was instructed to meet. There was no interest and no attempt to investigate Maria’s claims of innocence. She was instantly and conclusively presumed guilty.
Anything Maria said was immediately and absolutely disbelieved. Maria was charged with a mandatory prison version of Possession of Marijuana for Sale. Despite having no criminal record whatsoever, Maria was presented a plea offer for prison and given a public defender who advised her to accept the plea and go to prison rather than risk additional prison time by going to trial.
On November 29, 2011, Maria came into my office seeking legal representation. She brought the police report with her for us to review. After a review of the police report and a discussion with Maria, it appeared to me the officer was planning to fill in with opinions, exaggerations or lies what he was lacking in evidence; namely that Maria knew the marijuana was present. After assessing the case, we decided Maria was indeed innocent.(5) Although she could not afford to hire us to represent her, we refused to turn her away and arrived at a modest arrangement. It simply wasn’t in me to turn her away.
Throughout the case, the officer and the prosecutor repeatedly asserted Maria knew about the marijuana and was guilty. Their conclusion was based on a laundry list of mostly meaningless observations such as the following: Maria looked at the officer using her driver’s side mirror prior to the stop, she decreased her vehicle speed when the officer pulled behind her, the mini-van was on I-17 which allegedly is a known drug corridor, the mini-van was registered in Douglas which allegedly is a known drug area, recent vehicle registration, recent vehicle insurance, Maria was traveling with her autistic daughter, Maria appeared nervous during the traffic stop, Maria put her hair up, Maria allegedly had a high pulse rate as she stood outside her vehicle in July at approximately 2:00pm in Phoenix.(6) Indeed, this was the evidence.
We drafted and filed several motions to suppress evidence based on various issues related to the stop, the search, and the drug dog. After hard fought evidentiary hearings, all our motions were eventually denied. With no choice but prison, the case proceeded to a jury trial. The jury selection process commenced with the usual state efforts to weed(7) out anyone who would judge the law or not in some way absolutely agree to follow the law as directed by the judge.(8) Soon thereafter, it was our task to weed out all the people who could not be fair to the defense. This generally includes people who absolutely believe police officers or simply can’t be fair to the defense because marijuana will be mentioned during the trial.(9)
As expected, the officer testified to his laundry list of meaningless reasons why Maria allegedly knew about the marijuana. I had fun on cross examination. Maria testified as I knew she would. She was honest, sincere and far from someone who would knowingly transport marijuana. Through an interpreter, she clearly detailed a reasonable explanation of what happened and absolutely denied any knowledge of the marijuana in question.
As it became clear the trial was progressing poorly for the state, the officer was recalled to the stand. Despite several pretrial hearings where he previously testified and several pretrial interviews, for the first time ever the officer testified that, based on his extensive training and experience, Maria’s autistic daughter was likely a common tool for drug smugglers called a “distracter.” The officer went on to describe how, despite the glaring absence of any reference to it in his police report as well as his previous contradictory statements, the autistic daughter made him very suspicious at the scene. This was offered as a main reason why the jury should convict Maria. I believe this was entirely fabricated testimony. It was the most fun I ever had on cross examination. I was in heaven.
After the judge summarily denied all four of the defense requests for special jury instructions, despite the fact that we provided citations to Arizona Supreme Court case law mandating that the defense is entitled to jury instructions on the defense theory of the case, it was time for closing arguments. I explained to the jury about how they are supposed to be the final check on government tyranny. I attempted to inspire them by discussing the founding fathers and various concepts of freedom.
After deliberating for a full day, the jury got it right. I interviewed the jury afterwards. They didn’t believe the officer’s testimony. They realized the state’s case was based on mere speculation and not evidence. They acquitted Maria and went home. It was a complete win for the defense.
However, I can assure you Maria doesn’t feel like a winner. She was an inch away from going to prison for several years for absolutely no valid reason. She had countless sleepless nights and endured torturous stress. She worried about who would take care of her autistic daughter if she went to prison. She endured the eight hour round trip from Douglas to Phoenix many times. She believes the officer lied and embellished about what happened at the scene. She witnessed a prosecutor who resolved every inference and speculation against her. She witnessed a judge deny all defense motions, overrule countless defense objections, refuse all defense requested special jury instructions and allow undisclosed last minute state witnesses under the guise of rebuttal testimony. It doesn’t feel like justice to her.
I have said for years marijuana cases have no victims. I was wrong. This marijuana case had a victim who suffered immensely. Maria was indeed a victim, but not as much as she could have been had the state succeeded. It all makes me wonder how many people like Maria are currently in prison wasting away because of our immoral drug laws.(10) (11) This entire matter was unnecessary. As a criminal defense attorney, I would have preferred representing someone accused of committing a real crime involving a real victim. Our laws need to change, and we cannot be the land of the free until they do. In the meantime, score one for the good guys!
(1) Maria adamantly denies following too closely.
(2) Maria is not literate in English. Both a bi-lingual officer and a phone application to interpret were readily available but not offered.
(3) Not that it matters, but Maria is a legal permanent resident hoping to secure citizenship.
(4) Drug dog “alerts” are almost always subjective. Any skilled handler can easily manipulate a dog to “alert.” In any case, illegal drugs are only located less than 50% of the time after an “alert” from this dog in an uncontrolled setting. The use of drug dogs is a huge threat to our liberty and can legally justify a full search of virtually any person, vehicle or place anytime without a search warrant.
(5) Even had she been factually guilty, I would still consider her a victim of the drug war.
(6) Maria states the officer never took her pulse at all. She also denied being nervous. The officer also stated Maria couldn’t provide him with her friend’s name, but Maria repeatedly said she indeed told the officer her name.
(7) Pun intended.
(8) Hardly anybody asserts anything about jury nullification anymore.
(9) Indeed, several people were struck from the jury pool for both reasons.
(10) The problem of drug smugglers utilizing people who unknowingly transport drugs is now so prevalent that there are law enforcement created terms emerging to describe such situations. “Blind Mule” “Goat” and “Unwitting” are some such terms.
(11) I intend to include those who are factually guilty of producing, transporting, selling or possessing drugs too. All drugs should be legalized immediately. See my article entitled Legalize Methamphetamine! for a detailed discussion of why all drugs