Pubdate: Fri, 07 Nov 2003
Source: Watauga Democrat (NC)
Copyright: 2003 Appalachian Technologies, Inc.
Contact:  http://www.wataugademocrat.com/
Details: http://www.mapinc.org/media/2322
Author: John O'Dowd

DEFENSE LAWYERS OPPOSE METH LAW INTERPRETATION

Does the "cooking" of methamphetamine create a weapon of mass destruction? 
On an emotional level, with the impact the drug has had on lives and 
families in Watauga County, many residents would answer "yes."

Superior Court Judge James Baker has been asked to answer the question as a 
legal matter, not an emotional one, and the process of answering that 
question began late Thursday afternoon.

District Attorney Jerry Wilson has charged a number of Watauga County 
residents with the manufacture, possession or storage of a weapon of mass 
destruction (WMD).

Wilson argues methamphetamine "cooks" are combining toxic and volatile 
chemicals to produce the illegal drug and the combination of the chemicals 
creates a number of substances that pose a chemical threat to neighbors, 
law enforcement personnel, emergency personnel and firefighters.

Wilson's WMD charges have gained national attention and he has received 
statewide and local support for his attempt to address a dangerous problem 
and, what he perceives to be, inadequate penalties in the existing statutes.

Watauga County criminal defense attorneys are in almost unanimous 
opposition to Wilson's position.

Thursday afternoon, in what looked like a bar association meeting, seven 
defense lawyers, representing 10 defendants accused of possessing, storing 
or manufacturing WMD appeared before Baker to argue motions to dismiss the 
WMD charges on legal and constitutional grounds.

The defense counsel, Vince Gable, Scott Casey, Gail Fannon, Eric Eller, 
David Flaherty, Joe Seagar and Steve Carlson, divided the arguments and 
each took a section of the briefs filled on behalf of their clients. Baker 
combined the hearings on this issue because the legal issue is the same for 
all accused.

The hearing will continue today with Assistant District Attorney Charlie 
Byrd expected to argue that the manufacture of meth falls within the clear 
language of the WMD statute.

Flaherty provided a history of the statute and told Baker that nowhere in 
the minutes of the legislative committees was there ever a mention of using 
the WMD statute in drug cases. He said that the statute, written and passed 
in response to the terror attacks of Sept. 11, was designed to combat 
terrorism. The statute makes it unlawful to "knowingly" store, manufacture 
or possess a WMD.

Flaherty, in an argument repeated by all of the defense counsel, said that 
the WMD statute doesn't apply to meth labs because the people manufacturing 
the drug are, at no time, "knowingly" possessing, manufacturing or storing 
a "weapon." He said their intent is never to create a weapon; their intent 
is to create a drug.

After deciding to charge a violation of the WMD statute (North Carolina 
General Statute 14-288.21) when a "working or recently used clandestine 
methamphetamine laboratory is discovered," Wilson said that the WMD charges 
were, in part, to ensure a higher bail for the higher level felony.

Manufacturing meth has a sentence range of probation to 30 months in jail. 
WMD carries a minimum penalty of 12 years to a potential maximum of life in 
prison.

"Local law enforcement is seeing a pattern where 'cooks' are gaining 
pretrial release almost instantaneously and continuing with the 
manufacturing of methamphetamine," Wilson said. He added that some accused 
had been charged with meth related offenses three times in a six month period.

Shining a spotlight on the "success" of the higher bail goal, the defense 
counsel insisted that their clients be brought over from jail. Eight of the 
10 accused, six men and two women, appeared in court in orange, jail 
jumpsuits, unable to make the bails approaching $500,000 for the major felony.

Gable is the lead attorney contesting the WMD charges. His motion to 
dismiss on behalf of four of his clients, states that Wilson's actions 
create a cruel and unusual punishment in violation of the Eighth Amendment 
to the U.S. Constitution. He argued that Wilson's acts seek to increase the 
penalty beyond the legislative intent and add a punishment far more severe 
than any other drug penalty.

Casey argued that a specific statute existed listing methamphetamine as a 
controlled substance and it provides a penalty for possession or manufacture.

The WMD statute does not mention meth and when the court is given the 
choice between a specific statute and a general statute it should rely on 
the specific statute.

The attorneys argued that Wilson's application of the WMD statute seeks to 
circumvent the legislative intent in order to increase the penalties, a 
matter that should be taken up by the General Assembly.

It was also argued that the WMD statute, as applied by Wilson, could apply 
to any number of household products and subject innocent citizens to arrest.

Mixing chlorine-based toilet cleaner and ammonia creates a toxic gas; is 
that the production of a WMD? Baker pointed out that the WMD statute 
excludes the possession of legal chemicals and materials held for a legal use.

"Cleaning your toilet is a legal use," he said.

Two examples were argued around Baker's example of a legal use. Eller 
argued that under Wilson's interpretation of statute it would be possible 
to take a driving while impaired (DWI) arrest and charge the driver with 
possessing a WMD because the car contains volatile chemicals and fluids and 
is a "device" that emits a toxic substance (carbon monoxide) into the 
atmosphere.

A WMD violation could also be charged for burning waste without the proper 
burn permits. The fire would be an illegal act and the "device or process" 
would emit dangerous substances.

The bottom line argued by defense counsel Thursday night was that the 
combination of chemicals and solvents to create methamphetamine was not 
intended to create a weapon and the WMD statute failed to give them notice 
that "cooking meth" violated the statute.

Casey argued that any criminal statute must give notice of the acts that 
will violate it. "If they read a copy of the statute while they cooked meth 
they would not know they were violating it or creating a weapon," he said.

Wilson, in a written statement, has argued, "The by-products of the 
production of methamphetamine are toxic and lethal and include such agents 
as phosphine gas, hydrophoric acid and iodized crystals."

Wilson said , "It is our hope that this will serve as a deterrent to future 
illegal manufacturing of methamphetamine in our district...and will remove 
those individuals from society that pose, not only a threat to law 
enforcement and firefighters, but to the community at large through the 
release of toxic and hazardous chemicals into the environment."

Baker adjourned the hearing Thursday night until after press deadline this 
morning. The continuation of the hearing and a decision, if any, will be 
reported in the Monday edition of the Watauga Democrat.
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MAP posted-by: Larry Stevens