Pubdate: Fri, 12 Dec 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

JUDGE OFFICIALLY DISMISSES METH LAB WMD CHARGES

Superior Court Judge James Baker began his written order dismissing charges 
against 11 defendants with a quote:

"It is emphatically the province and duty of the judicial department to say 
what the law is."

The quote comes from a 200-year old U.S. Supreme Court case defining the 
authority and the duty of the newly established court. Whether or not 
Baker's dismissal order will be "what the law is" will be decided by N.C. 
appellate courts.

Baker's order, signed Nov. 26, dismissed 15 charges of knowingly storing, 
manufacturing or possessing a weapon of mass destruction (WMD). The WMD 
charges against Frederick C. Alderson, Tamberlyn W. Alderson, Christina M. 
Cox, Gary Joseph Cox, Christopher Lee Greene, Michael F. Laird, Martin D. 
Miller, Pamela L. Osborne, Jessi B. Rash, Frankie Wayne Taylor and Richard 
Len Taylor, Sr. were linked to allegations that the charged individuals 
were in possession of the precursor chemicals for the manufacture of 
methamphetamine or had been involved in the manufacturing of methamphetamine.

District Attorney Jerry Wilson argued that the manufacturing process 
created gasses and chemical compounds that fit clearly within the state's 
WMD statute for chemical weapons and charged the defendants with its violation.

Baker said, during the hearing on Nov. 6 and 7, that Wilson appeared to be 
reacting to a frustration with the inadequate punishments in the controlled 
substances statutes. Baker said that, while understandable, it was up to 
the General Assembly to change the statutes and, if desired, increase the 
punishments for the manufacturing of methamphetamine.

Baker said in his order, "The Court takes judicial notice of the fact that 
the manufacture of methamphetamine by the use of 'meth labs' as described 
by the state involves the use of dangerous chemical compounds and/or gases 
in the manufacturing process. These compounds or gases can pose a 
significant health risk, and can be deadly if ingested or inhaled. They can 
even be extremely harmful with mere skin contact. These facts are undisputed."

A court takes judicial notice when a fact or issue is so well documented or 
well known as to not need the production of evidence to prove the fact.

Baker took judicial notice of the fact that meth production and meth labs 
produced toxic, volatile and potentially deadly gasses and compounds. With 
this fact not in issue, why did he rule that the chemical compounds created 
by the production did not fit under the WMD statute as "manufacture, 
storage or possession" of a "chemical" weapon of mass destruction?

Baker found:

. The WMD statues were passed as a reaction to the terrorist attacks of 
Sept. 11, 2001. In fact, the statutes were passed on Nov. 27, 2001. The 
statutes were passed to combat terrorism.

. There is no mention in the WMD statutes of "controlled substances" or the 
manufacture of "controlled substances (drugs)."

. There is no mention in the legislative history of the statutes that the 
drafters of the statutes or the General Assembly intended for the statutes 
to be used to control the manufacture of drugs.

. The WMD statutes do not contain an adequate definition of what is or is 
not a "weapon." Baker found a different statute dealing with "weapons of 
mass death and destruction." That statute defined weapons as: bombs, 
grenades, rockets, missiles and mines.

Baker said that the definition in the similar statute, "just as importantly 
includes a definition of what is not a weapon of mass death and 
destruction: 'The term - weapon of mass death and destruction - does not 
include any device which is neither designed nor redesigned for use as a 
weapon...'"

Baker concluded:

. The WMD statutes were not enacted to control or punish the manufacture of 
"controlled substances (drugs) for illegal bodily use."

. A specific statute deals with the manufacture of methamphetamine and 
other controlled substances and that statute must be used.

. Criminal statutes must reasonably place the public on notice that what 
they are doing violates that statute. No person running a "meth lab" is 
placed on notice that they are manufacturing a WMD. Because of this concern 
Baker ruled that sections of the WMD statute were unconstitutionally vague.

During the hearing, defense counsel Joe Segar argued that, while the WMD 
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.

Segar pointed out that a Christmas tree farmer is required to have a 
license and certificate to spray pesticides and herbicides. 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?

It was the inability to clearly define the treatment of otherwise innocent 
acts that concerned Baker.

. The WMD statute is "overly broad as applied" because it lacks any 
requirement that the accused "intends" to manufacture a weapon. Without 
that "intent" element it "allows the statute to be applied to innumerable 
activities having nothing to do with the intended purpose of the statute."

District Attorney Jerry Wilson announced his intention to appeal Baker's 
decision and followed his oral notice with a written notice of intent to 
appeal.

Following the hearing, Wilson 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."

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.

North Carolina Attorney General Roy Cooper has 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."
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