Pubdate: Mon, 10 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

METH: DRUGS, NOT WEAPONS

Superior Court Judge James Baker was asked if the process of "cooking" 
methamphetamine created a weapon of mass destruction. Following two days of 
legal argument in a Watauga County courtroom, he decided that it did not.

On Friday, Baker dismissed 15 charges against at least 10 accused charged 
with possessing, storing or manufacturing a weapon of mass destruction (WMD).

The charges arose out of allegations of meth production and Baker said that 
he will follow his oral decision with written orders in each case.

His written decision, if it follows the oral comments released from the 
bench Friday, will bring into question the constitutionality of the WMD 
statute.

District Attorney Jerry Wilson announced his intention to appeal Baker's 
decision. He said, "I believe Judge Baker's ruling is incorrect.

"Until further action by the appeals courts those persons who produce 
deadly chemicals as a part of the production of methamphetamine cannot be 
charged under the chemical weapons statute."

Eight of the accused, unable to make bail that went as high as $500,000, 
sat in the courtroom and listened as Baker went through the indictments and 
dismissed WMD charges in each indictment.

Wilson has charged a number of Watauga County residents under the North 
Carolina WMD statute because 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. 
Dismissing the WMD charges, a felony offense calling for a minimum of 12 
years and a maximum of life in prison, will lower the bail of the accused 
and some may now be able to raise the money or property necessary to secure 
bail.

Being released on bail will not solve their legal problems. Without 
exception, the accused are facing additional charges. In addition to the 
WMD charges, most of the accused also face charges of manufacture, 
possession, sale or delivery of methamphetamine or possession of the 
precursor chemicals for meth. Those charges were not affected by Baker's 
rulings.

In dismissing the WMD charges, Baker noted that Wilson was charging the WMD 
offenses out of a frustration with the current penalties in the North 
Carolina statutes for the manufacturing of meth.

He noted that the proper place for the correction of the penalties for meth 
manufacturing was the North Carolina General Assembly, not the courtroom or 
the office of the District Attorney.

With respect to each of the alleged WMD charges, Baker found that they were 
either unconstitutional on their face or unconstitutional as applied by 
Wilson to the facts charged.

In Friday's hearing, Wilson and Assistant District Attorney Charlie Byrd 
argued that the "cooking" of meth required the creation and production of a 
number of toxic chemicals and gasses and that meth cooks created those 
gasses, acids and compounds "knowingly" as part of the meth production process.

Knowing production of those substances was a separate and distinct offense 
and fit into the clear language of the WMD statute, Wilson and Byrd argued.

Baker had problems with some of the broad language of the WMD statute and 
its ability to be interpreted to include innocent conduct and materials. He 
noted that a necessary, and toxic, chemical in meth production is made by 
combining tincture of iodine and hydrogen peroxide.

He said that he stopped by CVC pharmacy on his way home after court on 
Thursday night and noticed both items on the shelves of the pharmacy. He 
also noted that one of the accused was charged with possessing both items 
as "precursor chemicals."

The term "nuclear, biological, or chemical weapon of mass destruction," as 
used in the statute "means any of the following: Any weapon, device, or 
method that is designed or has the capability to cause death or serious 
injury through the release, dissemination, or impact of: a. Radiation or 
radioactivity; b. A disease organism; or c. Toxic or poisonous chemicals or 
their immediate precursors."

In dismissing that charge, Baker said that he wasn't sure that charging 
possession of tincture of iodine and hydrogen peroxide as "precursor" 
chemicals even stated a criminal offense.

Wilson's WMD charges have gained national attention and he has frequently 
stated his frustration with what he perceives to be inadequate penalties in 
the statutes for the production of meth.

In a September interview, N.C. Attorney General Roy Cooper declined to 
comment on Wilson's tactics or the use of the WMD statute for drug 
manufacturing, but said, "It's a reflection of the frustration that law 
enforcement and prosecutors feel about being overwhelmed by this problem of 
secret drug labs and not being given the resources and the appropriate 
sentencing for this type of activity.

"I'm going to work with Mr. Wilson and Sheriff (Mark) Shook and law 
enforcement and prosecution all across the state to present a package to 
the General Assembly which will include appropriate punishment for this 
type of activity. We have to send a message that we are not going to 
tolerate this, and that includes tough sentences."

Thursday afternoon defense counsel, Vince Gable, Scott Casey, Gail Fannon, 
Eric Eller, David Flaherty, Joe Seagar, David Turlington and Steve Carlson 
combined arguments and adopted each others' legal arguments in a concerted 
attack on the WMD charges.

They argued successfully that:

. The WMD statute makes it unlawful to "knowingly" store, manufacture or 
possess a WMD. The WMD statute doesn't apply to meth labs because the 
people manufacturing the drug are not "knowingly" possessing, manufacturing 
or storing a "weapon." Their intent is to create a drug.

. Wilson's actions would create a cruel and unusual punishment in violation 
of the Eighth Amendment to the U.S. Constitution by seeking to increase the 
penalty beyond the legislative intent and add a punishment more severe than 
other drug penalties, a matter that should be taken up by the General Assembly.

. A specific statute existed listing methamphetamine as a controlled 
substance and providing a penalty for possession or manufacture. The WMD 
statute does not mention meth or other drugs and the court must therefore 
use the specific statute.

. The WMD statute, as applied by Wilson, could apply to any number of 
household products and subject innocent citizens to arrest.

. The language defining weapons is too vague to be enforced or interpreted 
and reasonably includes legal conduct and material in the definitions. The 
language of sections of the WMD statute was too vague to be legally 
enforceable.

The defense counsel gave examples of activity that could, under Wilson's 
interpretation, be defined as a device or process under the statue. While 
the statute excludes legal use of chemical substances, no one was able to 
explain how the statue would apply to some "illegal" acts combined with the 
production of toxic materials or chemicals. It was the inability to clearly 
define the treatment of these otherwise innocent acts that seemed to cause 
Baker the most concern.

Defense counsel argued that a Christmas tree farmer is required to have a 
license and certificate to spray pesticides and herbicides.

Defense attorney Eric Eller asked, If he does not have the proper license 
and sprays toxic chemicals, it is an illegal act, removing him from the 
legal use exclusion. He would be spreading a potentially toxic chemical 
into the air, ground and ground water. Is it a WMD and could he be charged?

The inability to clearly answer that, and other, hypothetical questions 
appeared to be a significant basis of Baker's ruling and his concern that 
sections of the statute were unconstitutionally vague.
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MAP posted-by: Beth Wehrman