Gotham Gazette

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This has been the month of marijuana. Many New Yorkers are wondering whether their city has gotten trapped in some deadly new form of Reefer Madness. On May 10, five people were shot--three killed and two badly wounded--in an apartment above the Carnegie Deli in midtown. It looked initially like a drug deal gone bad because the apartment's tenant, Jennifer Stahl, had dealt in high-grade marijuana. (The shooting later turned out to be more of a music deal gone bad.) The New York Times said that six pounds of marijuana, worth roughly $10,000 per pound, were found in the apartment.

This astonishing market price reflects both the new potency of marijuana--not your grandmother's mild weed of the sixties--and the value produced by the federal government's 30-year war on drugs.

Michael Massing, author of The Fix, a history of U.S. drug policy since the 1960s, points out that marijuana is the only major illegal drug to have soared in price over the last few years--mainly as a result of interdiction, the term commonly used for the efforts by law enforcement agencies to catch people trafficking in drugs. "Interdiction has had the effect of making the marijuana trade far more violent than it had been," he says. "The old distinction between hard trade and marijuana no longer exists." You used to get marijuana from people you knew, he adds.

Indeed, several news accounts emphasized how cautious Stahl had been as a dealer--selling only to people she knew. She was almost surely murdered by an acquaintance. She had called the shooter by the name "Sean."

A recently installed video camera caught two men on tape, leading the police to identify two suspects quickly. The one named Sean is thought to have fled to the South, perhaps Georgia; the other, Andre Smith, was arrested in New Jersey. Smith's arrest has returned the issue of parole to the public eye.

A May 23 New York Times headline put parole up front: "New Jersey Parolee Is Arrested in Killings of 3 Above Carnegie Deli." While out on parole three months earlier for violent robbery, Smith had been arrested on charges of possessing 311 grams of marijuana near an Irvington, New Jersey, public school. But New Jersey officials failed to revoke his parole--or warn New York officials of the arrest.

"He should not have been out," Police Commissioner Bernard B. Kerik said at a press conference. "He should have been violated," he added, using the odd criminal justice term for returning to prison those who violate the provisions of their parole.

Praising the wisdom of New York State's elimination of parole for violent felons--a move he had spearheaded--Gov. George Pataki said the Smith case proved his old campaign point: "We had revolving-door justice for too long in this state."


Meanwhile, marijuana for medical purposes had taken front and center on the national stage.

In U.S. v. Oakland Cannabis Buyers' Cooperative, the Supreme Court ruled unanimously that federal law does not allow a "medical necessity" exception to the Congressional prohibition on the distribution of marijuana. Under the Controlled Substances Act of 1970, Congress listed marijuana as a "Schedule I" drug, meaning that it "has no currently accepted medical use in treatment in the United States." Growing, using, selling, or distributing marijuana is therefore a federal criminal offense.

Federal law notwithstanding, eight states have decriminalized medical marijuana. In 1996, a California plebiscite authorized the use of marijuana under medical prescription. Several systems of providing medical marijuana then developed, including buyers' cooperatives headed by physicians.

This did not sit well with the Clinton Justice Department, which sued to enjoin distribution in Oakland. That is, the Justice Department requested an injunction to stop distribution rather than bringing criminal charges to punish distribution--though it contended this was a criminal offense. Why an injunction? Because criminal charges would have required a jury trial. The Justice Department knew full well that it almost surely could not have found a California jury willing to convict the Oakland Cooperative of illegal distribution or the sick patients of illegal use of marijuana.

Will the Bush Administration follow Clinton's hard line on marijuana? The day the Oakland decision came down, Justice John Paul Stevens pointed out that as a presidential candidate Bush had supported state self-determination on medical marijuana use.

Yet President Bush has chosen a hard-liner as his drug czar. As the Los Angeles Times recently noted, Bush's drug czar nominee, John P. Walters, told Congress in 1996 that it should yank all prescription privileges from doctors who recommend medical marijuana for their patients--about as rigid a line as one can draw.

Michael Massing calls all this "discouraging to everyone who follows the issue." He says that people in the field are looking to any branch of government at any level to bring reasonableness to this issue, which has been surrounded by hysteria. Research, both systematic and anecdotal, has shown repeatedly that smoking marijuana helps some patients.

Even the august and conservative New England Journal of Medicine has editorialized in support of medical marijuana.

Decriminalizing marijuana would reduce its market value--and accompanying street violence--substantially. Massing would like to see marijuana's non-medical use remain illegal, but as a misdemeanor punishable by a fine, like a speeding ticket.

This view has substantial support in New York. Richard N. Gottfried, chairman of the New York State Assembly Committee on Health, wrote an op-ed in the May 16 Newsday attacking the Supreme Court decision as "bad law for patients' rights." Citing a 1990 survey reported in the Journal of the American Medical Association, which found that 44 percent of oncologists said they had suggested that a patient smoke marijuana for relief of nausea induced by chemotherapy, Gottfried urged passage of his Medical Use of Marijuana bill. The bill would allow physician-supervised use of marijuana in treating patients with serious illnesses.

Supreme Court decision or no, the use of medical marijuana, particularly by seriously ill patients, will continue all over the country. The only question is: how will the Bush Administration's Justice Department respond?


A more routine use of marijuana is involved in the Bronx trial of Mark Conway, the New York City undercover police officer accused of third-degree assault in the shooting of a fleeing unarmed teenager, Dantae Johnson, in May 1999. Johnson had fled Conway in part because he and a friend had just been smoking a joint--and because he had been wrongly arrested less than a month earlier. "I was scared," he testified. "I was trying to go home."

The New York Times drew explicit comparisons between this shooting and the killing of Amadou Diallo, also unarmed and black, four months earlier in February 1999. Like the officers who killed Amadou Diallo, Officer Conway is white and a member of the Street Crimes Unit. Like them, he wrongly believed his shooting victim to have a gun.

Amy Waldman in the Times zeroed in on what she called "yet another echo of the Diallo trial." This was the testimony of Officer Conway's supervisor, Lt. Kevin Cantwell, who had also been the supervisor of the Diallo officers. As in the Diallo trial, he took the stand for the prosecution--only to give testimony that was helpful to the defense.

In Conway's trial, Lt. Cantwell testified that on arriving at the scene, he found Johnson on the ground. He authorized charging him with possession of a loaded weapon and robbery. No weapon was ever found, nor did any evidence of a robbery appear. The charges were dropped.

Because Lt. Cantwell insisted he could not remember who had given him the information that led him to authorize the charges, wrote Waldman, his memory lapse could be helpful to Conway in suggesting that he was not the one trying to manufacture evidence.

There is another comparison between the Diallo officers and this case that the Times chose not to draw explicitly: all officers evaded a trial by jury in the Bronx. The Diallo officers were tried by a jury in Albany. Officer Conway is being tried by a judge in the Bronx.


Thus we have yet another distressing criminal trial of a New York City Police officer presided over by a judge with no jury.

A bench trial--trial by a judge alone--is a defendant's right under New York State law. But the existence of such a right raises the troubling issue of just what the U.S. constitutional right to a jury trial means in this state.

Officer Conway is following the path of most cops accused of similar crimes committed on duty before him.

Bench trials of cops have happened many times before and will happen many times in the future because New York has an unusual statute that allows defendants to "waive" their right to a jury trial and "consent" to a bench trial. The Court of Appeals has ruled that courts have almost no discretion to deny a waiver.

In effect, a defendant can demand a judge-only trial even over the protest of the prosecutor and the reluctance of the trial court.

The Bronx has seen an unusual number of bench trials. Indeed, since 1977 when Police Officer Thomas Ryan was convicted by a jury of fatally beating a 25-year-old burglary suspect, only one police officer charged with a civilian death in the Bronx has chosen a jury trial. Francis Livoti, who was acquitted in a bench trial of killing Anthony Baez, is the most recent and best known example of an officer evading a jury trial. (The legal term is "waive," but such usage defies common sense.)

Private citizens can demand a bench trial too, of course, although they exercise the option less often than police officers. Over the past 10 years in the Bronx, for example, defendants have chosen bench trials in only 19 percent of all criminal cases.

At the federal level, however, a defendant cannot similarly avoid a jury. Under federal criminal procedure, a defendant can waive trial by jury only with "the approval of the court and the consent of the government," a principle upheld by the Supreme Court in Singer v. United States.

As Chief Justice Earl Warren noted in that decision, a defendant's "only constitutional right concerning the method of trial is to an impartial trial by jury." There exists no parallel right to avoid a trial by jury.

Nearly all the states have procedures compatible with the federal system. New York, as one of the rare exceptions, is out of step with its fellow sovereign states, its own citizens and the nation's founding principles.

The jury trial is the nation's chief means of ensuring that the morals and standards of the community will be heeded in criminal proceedings.

The jury trial is the right of every American--and the right of every American community, including the Bronx.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

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