b y Dean Becker
by Steve Nolin
Judge James D. Gray
Judge Robert Voigt
(Audio Track) Intro – My name is Dean Becker; Steve Nolin is our engineer. We invite you to join us as we examine the unvarnished truth about the drug war.
Dean: Good evening, welcome to Cultural Baggage. We have several guests with us tonight. First up, we have from the state of California, Judge James D. Gray, who is running for a U.S. Senate seat – and we will bring him on here in just a second. We also have with us tonight Judge Robert Voigt. We have with us also Reginald McKamie, who is running for District Attorney here in Harris County, and I believe we do have the judge on the line. Hello, Judge Gray.
Gray: Dean, I am here indeed. It is always nice to talk to you.
Dean: Certainly, you are always welcome on Cultural Baggage. Thank you for joining us. Judge Gray, I understand there’s been a bit of contention out there in that race in that the League of Women Voters did not let you attend the debate. Do you want to talk to us about that, sir?
Gray: Dean, I think it is critically important that we in our country have a third voice. Third parties really do contribute mightily, I think, to our political thought and our government. And so the League of Women Voters did schedule a debate between the Democratic and the Republican – Barbara Boxer and Bill Jones – and I tried very hard to be a part of that. They said, “Oh no, you have to poll 10%.” So we commissioned a poll and polled, depending on how you read the poll, either 8% to 18%. Then they changed the rules and said, “Oh no, it has to be neutral. You can’t pay for it yourself.” Well, unfortunately the accepted neutral polls asked people, “Well, do you want to vote for Barbara Boxer or Bill Jones or other?” But they wouldn’t include my name. So, we tried. We were unsuccessful, and basically, I think democracy lost. Obviously, nobody discussed the drug war. Nobody talked about the Patriot Act, at least truthfully. And there are a lot of issues that simply were not discussed that would have been fully discussed had I been a part.
Dean: Let’s tell them about some of the planks, if you will, of your platform. The look at the drug war, the look at the Patriot Act – what would they have heard given that chance?
Gray: Well, first of all, it is clear to most people that what we are doing with regard to the war on drugs is not working. You can’t look to the government to change it because the government is making huge amounts of tax money, and they are addicted to that money. So a major plank in my campaign, Dean, is to get the Federal government out of marijuana prohibition – let’s just talk about marijuana – and that way we would allow each state to decide how best to serve its people. By the way, I know – as you know – when we finally repealed alcohol prohibition, we didn’t say, “Okay, now Texas or Oklahoma will serve alcohol.” We didn’t do anything of the kind. We just said the Federal government is out of it, and each state can decide how best to serve its people and what to do. I would lobby the state of California or anyone else for that matter to treat marijuana like alcohol. In effect, three things would happen immediately if that were to occur. Number one is that we would save taxpayers of California at least a $1 billion every year that we now spend to eradicate marijuana and prosecute and incarcerate nonviolent marijuana users. Even through all that, of course, marijuana is the largest cash crop of the state of California today. Number two is grapes, if you care. So obviously, we have been unsuccessful there. Second thing that we do is we can generate income. You know, you can tax it – and we could generate income of about a billion and a half dollars. Now that’s a $2-1/2 billion dollar shift in our budget deficit, and I think that would make an impression on people. And the third thing is more important than the first two, and that is we would make marijuana less available for our children than it is today. Why? Because illegal dealers do not ask for identification. So that’s the first thing we talk about. The second is, as you mentioned, the Patriot Act. It’s a direct frontal assault on our civil liberties. It does not make us more secure, more safe, but it is leading us toward being a police state. The war on drugs has done the same. We are simply taking away the human rights and the civil liberties of our people, and I cannot stand to have that occur without doing all I can to focus some light on it. There are other issues, too, but those are two of them.
Dean: The infringement of our rights that comes about through this drug war have been used in the war on terror to go after us even further in that regard. Am I right?
Gray: Oh, sure, absolutely. In fact, you’ll hear our present President tout that, saying “Oh, we want to use the same tools against terrorists [so-called] that we use against drug dealers.” Well, it isn’t working with regard to drug dealers, and it won’t work with regard to terrorists. In fact, I tell people all the time, “Let’s not fall for this label or this state of mind of a ‘war’ on terrorism.” You can’t declare war on an idea or action, even, or entities, or things like drugs. You can’t declare war on poverty. It just doesn’t work. This is a very serious, important police action; and we should have told the world, “We are going to find out who did this 9/11 stuff; we are going to bring them to justice; we’re going to punish them.” But you can’t declare a “war” upon an idea. And no leader of any note in world history that I know of would have color-coded our degree of fear for the moment. You know, we’re now in an amber alert, or a yellow, or an orange – listening to all these colors I have never heard of, but we’ll never get to a stage green, I assure you. No one will ever say, “Oh, we have accomplished our purpose. The war is over.” It’s great for politicians. It is not good for civil liberties, and it’s not good for the people.
Dean: Judge Gray, I know there are a couple of stations in California that receive this program. What might you tell them in regards to this coming vote for the senate seat?
Gray: Well, I’ll tell all your listeners, Dean. Anyone, of course, that lives and votes in California, I do request that you vote for Judge Jim Gray, a Libertarian for the Unites States Senate. But everyone listening to me knows some people who live and vote in California, and if you would just ask them to visit my website, judgejim.com – j-i-m, judgejim.com – we have lots of information there. If you send us an email message, we’ll send you information back and then you can forward that information on to your email universe. It is amazing what we can do together, and all of the Republican and Democrat’s money – and they have plenty – with regard to advertising will not be able to touch anyone who gets a personal endorsement from a friend. So that’s what I request they do. Certainly, we can use some financial support if they want to help there, too, and we’ll put more ads of our own on the radio and television, but the personal contact – you proselytize, you talk to people that live in California, that vote in California, and tell them that they have a viable positive option. Because I may not win the race, and I understand that that’s a reality of life, but if I make a strong showing, literally every vote that I get will stand up and be counted in favor of getting the Federal government out of marijuana prohibition. And I can tell you, the Republicans and Democrats will look at our votes as being the difference between winning and losing future elections. I assure you they are going to want those votes. The only way they get them is to change their policies and, of course if they change their policies, then we will have won the election. So make your vote count – Judge Jim Gray for U.S. Senate. Your vote will count.
Dean: Judge Jim Gray, I thank you once again for visiting us here, and we’ll be in touch soon, sir.
Gray: Sounds good to me, Dean; and you are doing good work. So keep it up.
Dean: Thank you, sir. Okay, folks, you are listening to Cultural Baggage, and we’re going to take a quick break, and we’ll be back in one minute with our three guests in studio.
It’s time to play “Name That Drug By Its Side Effects”: Depression, delusion, hallucinations, paranoid fears, clinical depression, schizophrenia, bi-polar disorder, and psychosis. Time’s up. The answer: Ritalin. Another FDA-approved product.
Dean: According to the forthcoming Victory Act, if you buy a bag from someone who bought a bag from someone who bought a bag from someone who knew someone who was a terrorist, you will be subject to 20 years to life. Happy Halloween.
Dean: Okay, we do have with us in studio Judge Robert Voigt. We have Lesley Ribnik who is also running for a judgeship here in Houston; and we have with us Mr. Reginald McKamie who is running for the District Attorney. I’m going to start with you Reginald. Please introduce yourself.
McKamie: I’m Reginald McKamie. I’m the Democratic nominee for Harris County District Attorney. Thank you for having me.
Dean: Yes, sir, I understand there was a recent debate or discussion, if you will, with you and the current District Attorney, Mr. Chuck Rosenthal. Tell us about that, if you will.
McKamie: We had a debate at St. Thomas University Sunday. It was from 3:00 until 4:00. We discussed a lot of different issues. I think that everybody who was there saw that he had one side of the issue and I had another. He’s tall, I’m short. He’s got white hair, I got no hair. We’ve got a lot of differences. But honestly, there’s a lot of differences between what we want to do for the people of Harris County and how we want to do it.
Dean: I personally have interviewed Mr. Rosenthal and he seems to want more of the same, which has been a hopeless failure in my book.
McKamie: Correct. And we discussed that. I told him I felt his policies were an embarrassment for Harris County, nationally and internationally. When you look at the Andrea Yates case where he went after the death penalty for a mentally ill woman. If you look at the DNA lab, his refusal to step aside after 22 Republican criminal district court judges requested that he step aside. If you look at the many capital murder cases that they go after and waste a lot of taxpayer’s money. And if you look at the many people that we send to TDC from Harris County – I believe that Harris County sends about 60% of the people that are in TDC.
Dean: It’s outrageous. One of the reasons why is the ineptitude of the crime lab, and we have a gentleman with us, Les Ribnik who understands that quite will. Les, how are you this evening?
Ribnik: Doing fine. Howdy.
Dean: Howdy, welcome. Les, we had an earlier discussion about the DNA and the crime lab and its implications to the drug testing, in fact. Tell us a bit about what you have observed.
Ribnik: There are problems. The public knows that. They have read the reports in the news and on television about the scandal in the DNA lab. What I would like to point out to the public is that the DNA lab is the front end of the scandal. That’s where the problems originated. However, they didn’t end there. The rest of the scandal, the back end of the scandal, is in the courtrooms where in hundreds if not thousands of cases, bad evidence came into the trials and was presented to the jury. The question is how did bad evidence come in before the jury. The judge is there to be an ultimate arbiter, applier of rules of evidence and rules of procedure, which is designed to make sure that the evidence that does come before the jury is valid and reliable. What happened in the courtrooms in hundreds or thousands of trials where bad evidence came in? What happened was a failure. The judges did not apply the rules. The prosecution did not follow the rules. Defense lawyers did not make challenges that were permissible under the rules. There was a colossal failure in the courtroom of all parties involved where, ultimately, the integrity of the trial process was tainted.
Dean: That brings to mind the old accounting joke of how much do you want it to be – when asked 2+2 – and I think that is what the crime lab presented on behalf of the DA, is whatever evidence or whatever result they thought was appropriate. That’s my take on it. It seems to be prevalent enough.
Ribnik: It think that happened in at least one case. It was the case where Libby Johnson, who is an assistant medical examiner, was asked by an assistant district attorney to confirm a report to a theory that the assistant DA wanted to pursue in the course of the trial. She refused to do it, the case was taken away from her and assigned to another assistant medical examiner; she was fired. She brought a whistleblower lawsuit and she won, and won a substantial sum of money from Harris County. So I think there is one documented case of that happening. I think there is a more fundamental and more structural problem at the root of it. It’s that there is an unjustifiable reliance on science. There is an unjustified faith that science and scientists and technicians will always get it right. As it has developed in Texas and American jurisprudence, it has gone by rather uncritically that DNA analysis is going to somehow provide magical, mystical, but reliable identification of suspects. And nobody bothered to take a look at the complicated, sophisticated techniques that go into it, and look for the possibility for error, sources of error, the sources of failure. And DA’s, judges, defense lawyers all routinely relied on the validity of the science without knowing the science intimately enough to challenge the pathologies, the weaknesses that go along with it.
McKamie: Wouldn’t you agree with me, Les, that it was also a failure to really delve into how the prosecutors were using the evidence and soliciting testimony from the DNA lab employees?
Les: Yes, you are right. Now, there is misdoing on the part of the prosecutors. There is also misdoing by form of omission by defense lawyers who are there positioned to challenge the evidence that the DA puts in. A lot of that problem was that a myriad of cases came about with appointed council where they were dependent upon the courts to provide them with the proper resources to represent the indigent, and the courts weren’t doing it. The judges weren’t providing indigent councils with the resources to properly challenge the DA’s evidence.
Dean; I want to introduce our other guest here in the studio with us. We have Robert Voigt.
Voigt: In relation to the drug laboratories, the DNA lab, etc., we have to bear one thing in mind – that there is plenty of blame to go around. Until such time as we have independent laboratories which are not a part of the police system or some other law enforcement system, we will never have an unbiased process. The only way to have fairness and a lack of bias in this process is to separate the drug labs, make them independent, non-beholden to the DA’s office or to the defense bar, or to anybody else. Because we all tend to be partisans and when the drug lab is a part of HPD, for example, there is always the tendency to help the side that you are allied with, which is the police and District Attorney’s office. And the case of Libby Johnson is the proof of that. The woman said these things weren’t right, and what does she get for it? Instead of being applauded saying you’re right, she got fired for it. You can be a District Attorney and want to look at some evidence – drugs – you can go there, and they can make an arrangement and show it to you. If you are a defense lawyer, mostly you are going to need a court order to see that stuff. And that’s just not right. Another thing, as Les just said, these are complicated processes that are done in the DNA laboratory, and most of the people there have no higher than a bachelor’s degree, a 4-year degree. And any organization where you have any research done, you are going to have doctors. In most organizations, at least you need a master’s to do any type of work of that sort. But we don’t have that in the DNA laboratory, and we have people that are basically non-scientists – machine operators. They run their units. A lot of these people who are seated up in court, you ask them for the formula for cocaine – the people in the drug lab, they won’t know it. All they do is put things through machines. And the analogy I make is that these people – I don’t see much difference from the person who is driving a car. You know they turn the switch, they turn the key, the engine starts, they put it in drive, and they drive off. But they don’t know what is happening under the hood.
Dean: Right, fair enough. Now when I interviewed Chuck Rosenthal, I asked him did he know the origins of the drug law. Does he know the basis, the science, the reasoning behind it, and of course he did not. He just said, when all you have to work with is a hammer, everything looks like a nail. Reginald, I wanted to ask you, it’s not all a nail – these are people.
Reginald: Absolutely, absolutely, and there are people that need to be treated with dignity and respect because they are Harris County residents. Many of them are taxpayers; if they are not taxpayers, their parents are taxpayers, and we need to treat everybody with dignity and respect. And we need to look at the cases on an individual basis; and we need to have justice and fairness down in the criminal court system. And that’s why I am running for District Attorney.
Dean: Les Ribnik, let me ask you this: Dallas has had a tremendous scandal. It’s not necessarily the crime lab, but it might as well be with the tainted evidence, the sheet rock presented as methamphetamine and cocaine. How can judges make that determination? You talked earlier about the defense attorney’s don’t look at the science and so forth. What can the judges do in that regard to help protect the people they represent?
Ribnik: Well the simple answer is, they do not allow the evidence to come in. In the course of a trial, one side proffers the evidence; the other side has the opportunity to object to it. There can be some argument back and forth as to whether it should come in, but the judge has the final decision as to whether or not that evidence comes in, whether it is oral testimony, or something physical, or something scientific, or just more lay opinion. The judge has the opportunity – has the duty – to say, “No, you have not met the proper predicate.” The rules of evidence in place, in particular regarding expert testimony, that says that the evidence has got to be shown to be reliable, it has got to be shown to be valid and well-grounded and accepted science. That’s the thumbnail sketch. I won’t go into all the details and bore your listeners with a lot of legalisms and legalities. However, the judge is the arbiter of the rules. The judge is the gatekeeper to prevent invalid, unreliable evidence from coming before the jury. The judge is absolutely crucial. Now, the DA has a role, defense has a role, they are all crucial roles. But the final role is that of the judge.
Dean: Go ahead. This is Robert Voigt. Go ahead, sir.
Voigt: We’ve got to remember that we have got 23 of those judges that are former prosecutors. We have a tendency, as I think I said before, to be partisans. Let me tell you what a career track is for a judge today. Often these folks go to college, go to law school; sometimes they go to law school without having any job in between. They go to the District Attorney’s office, sometimes as young as 25, fresh out of law school. They stay there for 15 years. When they are 40, they run unopposed for the bench as Republicans and then they take the bench. Now, what have they done? They have had – they are 40 years old, fairly young for somebody that has got to make a lot of judgment calls. They have spent 15 years in the District Attorney’s office, and most of the people they associated with are their fellow assistant district attorneys – people they have had lunch with, had dinner with, gone to parties with. And they don’t get a lot of perspective – one job in their entire career. And when they get up on the bench, they have a tendency – and some of them I’m glad to say, some of them evolve and they grow, and they do things right. But there is a tendency, and I can think of some now – that they are biased toward the prosecution, and very much so. And I think that’s unfortunate, and I wish we could change. And I wish we could have people from both sides on the bench, not only from the prosecution side; but we need people from defense law, too, to give some balance. Ideally, we should have people that have done both. It’s unfortunate that we have this bias, and a lot of people really aren’t big enough for the post. Because to be a judge, you have to have several things. Of course, a knowledge of the law is one of them; and it’s important. But I think the most important thing has to be a reasonable person. He has to have a deep sense of honesty and fair play, to have a courteous demeanor, and to make people feel welcome in court and allow people to have their time in court. And in this sense, I might add that there is a tendency to want to keep your docket down, because it has become almost a political issue. And what is happening now is that in many courts, lawyers are appointed by the judges; and so there is a tendency to have them to want to have them to plead the cases out. People aren’t getting their day in court. It’s much easier to plead the case out – it takes 5 minutes, whereas having a trial might take a day or two. And the shining promise of our constitution that guarantees us a trial by jury is being frustrated.
Dean: Indeed it is. I think that’s quite obvious, that the majority of drug cases in particular – these are the ones that I have observed and watched – plead out. For some, instead of the chance of 20, they will take 3 years or even a probation. But then you have to do the urine test and you have got a past, you know.
Voigt: I was talking yesterday to a person who has a friend who was on 10 year’s probation and after doing 7 years probation right, they got a technical violation and they were revoked and sent to prison. The probation – long probation terms don’t really make much sense. If you have a short probation, a person can stay out of trouble for let’s say 2 years, 3 years, that’s long enough. That way, they can get on with their life when they are through with that. And you have the added advantage of, you lower the amount of people on probation, which means that the probation department has a lower case load and now they can oversee their probationers more effectively.
McKamie: You know one of the things you really have to look at – here in Texas, I believe the number is about 60% or more of the people that are in Texas Department of Corrections are there for less than a gram of cocaine. That’s an astronomical number when you think that you are housing people for $35,000 to $40,000 a year for having about a $40 amount of drugs on them.
Dean: Less than a sugar packet.
McKamie: Yes, less than a sugar packet. So we really need to look at what is the cost to society to house and do these things that we are doing for less than a sugar pack of cocaine, and whether it makes sense. The other thing we need to look at is we’re destroying citizens that can be productive. Once they get a record, once they get a felony, they can’t come back to society, really go and get a job that’s going to be meaningful. Generally they can’t. You find a few exceptions where people do, but it’s a hard recovery once you’ve been incarcerated and trying to get back on your feet. We need to look at alternatives when there are medical issues. We need to treat them with medical solutions; and if somebody is a bad person and they are doing bad things in the community and hurting people, then they need to be put away and they need to be put away a long time. But these minor offenses where they are not hurting people, we need to treat that differently. We need to use the drug courts extensively. We need to have more drug courts, and we need to increase the use of pretrial diversion and other things in court.
Voigt: Les, what do we have now – one drug court or what?
Ribnik: We have one drug court; and it’s only a pilot project and it was very, very late in its creation. The 77th legislature several years ago passed legislation creating drug courts in five major Texas cities.
McKamie: Well, this District Attorney fought it for 2 years.
Ribnik: Exactly. He fought it for 2 years; nor were the judges terribly interested in getting it off the ground. There was the interruption of Tropical Storm Allison, which was used as an excuse for not going forward with it. However, every other major city that uses it – Austin, Dallas, for example – they had a drug court in place within 6 months. This drug court didn’t come into existence until one year ago this month. Even then, they ran out of money by the spring. They handled only 50 cases; and they have got some more money now, and they are supposedly cherry-picking another 50 cases for that. This is a county where we have over 90,000 felony cases a year; and they are struggling to find financing for just 100 cases. The drug court sits for a couple of hours every Friday, and that is it. Furthermore, it is not designed for first-time offenders. It’s being used for people who are on probation, at risk of violating their probation or have already violated probation. So it is for people to be given a second chance when they already had been given a second chance on probation. It’s hardly a robust and hale and hearty program designed to identify early on – especially with first-time offenders – a drug problem that could be treated medically or therapeutically. I would like to use this as a segue to comment on something that Robert mentioned. I’m talking about the length of probation period. I don’t think there is any magic number for a period of probation, whether it is one year, ten years, five years, whatever. I think what counts is the rehabilitative needs of the individual probationer. You have got to tailor the probation terms to the individual, with due regard to both his punishment and rehabilitation needs.
Dean: Les Ribnik, we’re running out of time here; and I want to give you guys a chance to talk to your constituents out there and what you want to do. Let’s give 30 seconds apiece. We are going to start with Robert Voigt over here.
Voigt: Again, I am Robert Voigt, V-o-i-g-t. I’m on the Democratic party ballot. We would appreciate your vote. Vote us into office. We will give you reason, common sense, and fair play, and that is what we need to make a good system, because an honest and fair judicial system is a bulwark of the Republic.
Dean: Thank you Robert. Now we go to Les Ribnik.
Ribnik: Again, my name is Les Ribnik. I think if you listen to all three of us here, you can tell that we bring a different vision, a different perspective, to the races that we are running for. Vote your conscience. Vote your thoughts, and vote for us.
Dean: Thanks, Les; and now we go to Reginald McKamie.
McKamie: Yes, thank you very much, and thank your audience for listening. What I would tell the audience is that we have an historic opportunity. We need everyone to get out and vote. I want to encourage you to get your friends and neighbors out to vote. Thank you very much.
Dean: Thank you, gentlemen, all. I appreciate you being with us. A couple of program notes before we go. I want to say “Hi” to the folks at KRFP up in Moscow, Idaho. Welcome to the Drug Truth Network. We’re glad you are with us. If you are listening to KAOS in Olympia, Washington, call the station manager and tell him to keep this on the air. Our DJ is leaving, but we need you to hang with us.
This week’s Poppygate Report, please, then it’s drugtruth.net. Listen to the Halloween 4:20 Drug War News Report. Please, make that vote count.
As always, because of drug prohibition, I remind you, you don’t know what is in that bag. Please, be careful.
For the Drug Truth Network, and on behalf of my technical producer Steve Nolin, this is Dean Becker for Cultural Baggage, the unvarnished truth. This show is produced at the Pacifica Studios of KPFT, Houston. Tap dancing on the edge of an abyss.