Court Says Cop's Theft Of Evidence Shouldn't Have Any Effect On Man's 15-Year Drug Sentence

from the nothing-but-flagmen-on-the-legal-railroad dept

Texas criminal justice blog Grits for Breakfast is highlighting a recent court decision in which several judges somehow found a way to uphold a conviction directly predicated on law enforcement deception.

Here's a crazy case out of Harris County: The Government-Always-Wins faction on the Texas Court of Criminal Appeals wrangled a four-member plurality on a habeas corpus writ to overturn the trial court's recommendation and uphold a conviction in which law enforcement misrepresented the weight of drugs found on a defendant, calling it 26 kilos when the real amount of actual cocaine was likely less than a gram.

The reason for the discrepancy: A police officer stole the drugs and replaced them with sheetrock powder laced with cocaine so it would trigger a field test. While the defense stipulated Mr. Pena intended to transport cocaine, we don’t really know how much because the cop stole it before they ever got to weigh it.

The case continues the CCA's longstanding penchant for finding excuses to compartmentalize severe police misconduct and uphold convictions in spite of it. The trial judge recommended the defendant be granted relief, but four members of the high court found excuses to tolerate this sordid situation.

How do we get to 26 kilos from less than a gram of actual cocaine? It happens like this...

Martin Pena needed money for rent. He agreed to meet some other men at a taqueria to run some sort of an errand for $500. One of the men took Pena's car and returned with it a short while later. When he returned, there was a black ice chest in Pena's car. Pena was instructed to drive it to another location and park his vehicle, leaving the keys inside.

Pena was pulled over by Houston police officers who arrested him for an outstanding warrant. The vehicle was impounded and an inventory search performed. The 26 kilos of "cocaine" in the ice chest were discovered and Pena was convicted of transporting 400 grams of cocaine -- enough to trigger a mandatory minimum 15-year sentence.

It was more than a year after Pena's guilty plea before new evidence came to light. The 26 kilos found in Pena's car was almost 100% drywall powder. The ice chest in Pena's car had been tampered with before Pena ever took control of it. Officer Marcos Carrion -- one of the officers who participated in Pena's arrest -- was dirty. He was not only working for drug traffickers, providing them with inside law enforcement info, but also working for himself. From the decision [PDF]:

When a shipment was identified, Carrion and his cohorts replaced the trafficker’s cocaine with sheetrock and trace amounts of cocaine sprinkled on top. Carrion would then seize the “fake” drugs once they reached their destination (usually a courier), knowing that the replaced sheetrock with the sprinkling of cocaine would field-test positive and that it would not be tested for purity. By doing this, Carrion was able to steal narcotics from the traffickers he was working for, and because the traffickers believed that their drugs were in the possession of the State they never learned that the drugs had been stolen.

That's what happened to the cocaine Pena was supposed to deliver. Carrion took the real stuff, replaced it with sheetrock dusted with cocaine, and closed the loop by performing the arrest. Since Carrion knew drug labs wouldn't test the cocaine for purity, Pena was allowed to believe he was facing a significantly longer prison sentence if he didn't plead guilty -- far more than the 400 grams he agreed to.

The lower court agreed with Pena's assertion he would not have pled guilty if this information had been turned over to him prior to him entering his plea. The higher court disagrees. It found he was still guilty of transporting cocaine, even though the substance Pena transported was almost completely drywall. Under Texas law, drug weight calculations are based on the total weight, not the purity of the substance.

Although Pena, in a sense, was carrying the “wrong” cocaine because of Carrion’s drug-swapping actions; his conviction is based on the substance seized from his vehicle, not the cocaine he never possessed. And, as a matter of state law, the substance he possessed is cocaine. In Texas, a controlled substance includes the substance and any adulterants and dilutants.

[...]

The Code makes no exceptions for cocaine with “a lot” of sheetrock in it or based on the purity of the controlled substance.

It admits Officer Carrion's theft of the original stash and replacement with a much more profitable (for Carrion) 99/1 ratio of sheetrock/cocaine was disturbing, but does not change the underlying fact Pena was transporting some form of cocaine.

To be sure, Carrion’s misconduct was willful, brazen, and appalling, but it does not change the fact that Pena was in possession of about 26 kilograms of cocaine (together with adulterants and dilutants) and that his conviction is based on that possession.

This is a disturbing conclusion, albeit one more firmly supported by existing caselaw and statutory direction. The other finding -- that Carrion's actions should have no bearing on the length of Pena's conviction -- is even worse.

To show that Carrion tampered with or fabricated the drugs seized from his car, Pena would have to show that Carrion knew that an investigation or official proceeding was pending or in progress and that he made, presented, or used the seized cocaine with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding. TEX. PENAL CODE § 37.09(a)(2); Wilson, 311 S.W.3d at 464. In addition, he would have to show that the misconduct in question took place before the commission of his crime because the state suppression rule “deals with exclusion of illegally obtained evidence of a prior crime[,]” not a crime committed after the misconduct.

The justices claim reading this Pena's way would allow anarchy to reign supreme. For instance, someone could conceivably get away with murdering a cop if he could prove the incident began with an unlawful arrest. (This is literally the example used by the court.) It's a very short parade of horribles that uses an extreme scenario to excuse noxious government misconduct. To thread the legal needle after this "better citizens get screwed than a hypothetical cop murderer go free" assertion, the Texas court has to turn itself into everything citizens hope their courts never morph into: an aider and abettor of police misconduct, rather than a check against government abuse.

Here's what Grits for Breakfast has to say about this legal rationale:

Just as disingenuous was their analysis regarding whether the officer tampered with evidence. Here's a headspinning quote from the main opinion showing the black-is-white, freedom-is-slavery type Orwellian reasoning they had to engage in to reach this conclusion:

there is no dispute that drug dealers returned Pena's car after placing an ice chest full of cocaine in the backseat, that Pena retook possession of the car and was the sole occupant of the vehicle when he pulled over, or that [the police officer's] misconduct took place before Pena took possession of the cocaine in his car. Based on this, Pena cannot prove that [the officer] tampered with or fabricated the drugs in Pena's car within the meaning of Section 37.09 of the Texas Penal Code.

The evidence exists Officer Carrion stole and replaced the drugs. The DEA, which had Carrion under investigation at the time of Pena's arrest, had this evidence. In fact, the DEA tested the substance seized from Pena's car, finding it contained almost no cocaine. And yet, the court insists the evidence does not exist -- or at least does not exist in any way that would allow Pena to challenge his sentence. It seems to believe that because Pena believed he was transporting genuine cocaine -- and because the state considers the presence of adulterants when calculating weight -- a sentence based almost solely on the actions of a crooked cop should stand. No one but Officer Carrion has any idea how much cocaine was in the ice chest originally. But that amount vanished into Carrion's criminal side gig, leaving behind nothing more than 26 kilograms of sheetrock and less than a gram of actual cocaine.

As Grits for Breakfast notes, there are a few dissenting opinions, but because the dissenting judges couldn't agree on which issue of this abhorrent case was the worst, the plurality of judges refusing to punish law enforcement wrongdoing by stripping it of a courtroom victory end up with a dubious "win" of their own. And bad cops are given a better idea of just how far they'll have to go before they need to start worrying about judicial pushback.


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  • icon
    PlagueSD (profile), 28 Nov 2017 @ 3:57pm

    I wonder if the drug dealers read techdirt? If so, I'd think Officer Marcos Carrion should be watching his back. From what I see in the movies, drug dealers don't deal with thieves very well...

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  • identicon
    Paul Brinker, 28 Nov 2017 @ 4:02pm

    All Money is now arrestable based on this

    Based on the apparently fine nature of Cocaine, trace amounts of cocaine turn up on approximately four of every five bills in circulation.

    Now based on this ruling all your money is basically cocaine and thus can be taken from you and you can be charged for drug possession based on the weight of your money. O ya and each bill in your possession weighs about 1 gram so you can get 15 years for simply having $400 in your possession.

    Welcome to logical conclusions when they favor law enforcement!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Nov 2017 @ 4:09pm

      Re: All Money is now arrestable based on this

      O ya and each bill in your possession weighs about 1 gram so you can get 15 years for simply having $400 in your possession.

      Only if you carried that $400 in $1 bills. This is why you should carry only high value bills ($100 bills if possible, but $20s if necessary), preferably with sequential serial numbers and an armed dye pack. That way, you'll only have a few individual bills in your possession, so the bill -> cocaine conversion works more in your favor.

      reply to this | link to this | view in chronology ]

      • icon
        Ryunosuke (profile), 28 Nov 2017 @ 5:39pm

        Re: Re: All Money is now arrestable based on this

        except carrying any cash at all equates to facilitating the purchase and transport of illegal drugs. So your $400 is civil forfeited. Have a nice day citizen.

        reply to this | link to this | view in chronology ]

      • icon
        GristleMissile (profile), 29 Nov 2017 @ 10:35am

        Re: Re: All Money is now arrestable based on this

        But higher denomination bills are more likely to be tainted with coke. You should just used electronic payments instead and let the government keep proper track of it, citizen.

        reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 28 Nov 2017 @ 4:59pm

      Re: All Money is now arrestable based on this

      DAMN YOU!!!!!
      You just gave them cover for even more civil asset forfeiture!

      reply to this | link to this | view in chronology ]

  • identicon
    JD, 28 Nov 2017 @ 4:22pm

    Why not include the bag? Or the chest? Or the ice? Or the car?

    If anything that touches the cocaine can also be considered cocaine, why not also include the plastic bag(s) in which they were contained? Or the chest which contained the bag? Or even the car? Why not bust the guy for trafficking 2,000 kg of coke??

    Texas: where anything that touches cocaine is also cocaine.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Nov 2017 @ 4:38pm

      Re: Why not include the bag? Or the chest? Or the ice? Or the car?

      If you sprinkle a bit of cocaine in some one's pool, are they guilty of possession of thousands of gallons of cocaine?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 28 Nov 2017 @ 7:10pm

        Re: Re: Why not include the bag? Or the chest? Or the ice? Or the car?

        If you sprinkle a bit of cocaine in some one's pool, are they guilty of possession of thousands of gallons of cocaine?

        No, they go by weight. It would be the weight of all the water in the pool.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 28 Nov 2017 @ 7:49pm

          Re: Re: Re: Why not include the bag? Or the chest? Or the ice? Or the car?

          Ahh the old reddit cracking jokes over a deadly serious issue while forgetting about it next election and doing nothing about anything in the end but having a good laugh at the expense of the innocent.

          sure I understand that part of this is about bringing sarcasm and exasperation to attempt to show how absurd the police and courts are being but when did that ever protect anyone?

          I bet you would still be okay with an innocent citizen being shot down by the police the moment they try to defend themselves from this tyranny. Better roll over and take it like a good serf and work within a broken system to fix it.

          reply to this | link to this | view in chronology ]

        • icon
          Bergman (profile), 28 Nov 2017 @ 7:55pm

          Re: Re: Re: Why not include the bag? Or the chest? Or the ice? Or the car?

          A single gallon of cocaine-laced water would be 3,780 grams (plus however many grams of actual cocaine you sprinkled in).

          Assuming the pool is Olympic-size, that would be just under 2.5 billion grams of cocaine.

          A 4 person hot tub would be about 699,000 grams of cocaine-laced water.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 29 Nov 2017 @ 4:06pm

            Re: Re: Re: Re: Why not include the bag? Or the chest? Or the ice? Or the car?

            Hey someone could have a pretty good time in vegas with that much...............heart failure

            reply to this | link to this | view in chronology ]

        • identicon
          tin-foil-hat, 29 Nov 2017 @ 6:54am

          Re: Re: Re: Why not include the bag? Or the chest? Or the ice? Or the car?

          Water weighs about 8.3 pounds per gallon.

          reply to this | link to this | view in chronology ]

      • identicon
        Valkor, 29 Nov 2017 @ 7:41am

        Re: Re: Why not include the bag? Or the chest? Or the ice? Or the car?

        Yep, but now you have Homeopathic Cocaine. The more you dilute it, the more effective it is!

        reply to this | link to this | view in chronology ]

    • icon
      Oblate (profile), 29 Nov 2017 @ 6:06am

      Re: Why not include the bag? Or the chest? Or the ice? Or the car?

      Why stop there? What if there was trace amounts of cocaine found mixed in the mortar at the Texas Court of Appeals? How much does that building weigh? How would the Judges feel about being arrested for possession of millions of pounds of drugs?

      reply to this | link to this | view in chronology ]

    • icon
      DOlz (profile), 29 Nov 2017 @ 2:13pm

      Re: Why not include the bag? Or the chest? Or the ice? Or the car?

      That’s called the Midas touch.

      reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 28 Nov 2017 @ 5:05pm

    "adulterants and dilutants"
    I do believe the 26 kilos of coke was delivered to the bench.
    I am amazed at the sheer amount of coke one would have to do to make this work out in the states favor.

    DEA - Left a corrupt cop on the streets enriching himself with cocaine profits.
    Cop - We just need to pass a shitty field test & you're done.
    Government - adulterants and dilutants are completely acceptable to account in weight of drugs, because drugs are bad, even if the amount of drugs found was down to homeopathic levels.
    Citizen - I was fucked from the word go, I expected justice to be upheld... I was very stupid.
    Court - DRUGS ARE BAD MMMMKAY!!! We have to do back flips to ignore the complete & total failure of the police in this case & hey this fuzzy wording lets us claim 3 grains of coke in a 50 gallon drum of flour lets us weigh the whole drum to compute your sentence.

    They kept telling me there weren't 2 kinds of law... I grow weary of being right so often.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Nov 2017 @ 6:05pm

    At least all three branches of government art consistently crooked. Makes Teflon Don look like a choirboy.

    reply to this | link to this | view in chronology ]

  • icon
    DB (profile), 28 Nov 2017 @ 7:52pm

    And the police officer got...

    This guy was guilty, but was really just an uninformed mule. He was sentenced to 15 years.

    It appears that the dirty police officer, who stole and handled the drugs, as well as committing many other crimes using his badge, was sentenced to only 5 years and 10 months in total.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 28 Nov 2017 @ 8:55pm

      Re: And the police officer got...

      Well of course, I mean transporting drugs is way worse than stealing them to sell, and as such it makes perfect sense that he'd get hammered with 15 years while the cop would get what amounts to a slap on the wrist in comparison.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Nov 2017 @ 8:58pm

      Re: And the police officer got...

      was sentenced to only 5 years and 10 months in total.

      Yeah, but being a cop in prison is so much worse than being a regular criminal in prison. It's like dog years, so that 5 years of calendar time felt like so much more for him. Assuming the cartel didn't convince a lifer to kill him in retaliation for robbing them, of course. That probably only happens in the movies though.

      reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 28 Nov 2017 @ 11:33pm

        What's good for the goose...

        We throw child sexual predators in to take their chances with the general prison population. We ignore inmate rape, abuse by guards and neglect by the wardens (or the penal institution).

        If we have so little compassion for our general inmates, then there is no reason to show compassion for law enforcement officers who find themselves behind bars.

        Do officers ever go to prison? There were like fifteen though the 19th and 20th centuries.

        reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 28 Nov 2017 @ 9:01pm

    Once again, we have evidence...

    That there's probably more false convictions behind bars than real ones.

    Sadly we can't expect either reform or Bastile Day, US for decades.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 28 Nov 2017 @ 9:19pm

    "Here is the bar you would have to meet. Oh you met it? Tough luck, turns out we don't care."

    To show that Carrion tampered with or fabricated the drugs seized from his car, Pena would have to show that Carrion knew that an investigation or official proceeding was pending or in progress and that he made, presented, or used the seized cocaine with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding.

    A high bar indeed, it's a good thing for the court that there's no possible way that such a thing could be demonstrated.

    ... You know, so long as you don't read the third page of the ruling, where the judges flat out admit that that's exactly what happened.

    When a shipment was identified, Carrion and his cohorts replaced the trafficker’s cocaine with sheetrock and trace amounts of cocaine sprinkled on top. Carrion would then seize the “fake” drugs once they reached their destination (usually a courier), knowing that the replaced sheetrock with the sprinkling of cocaine would field-test positive and that it would not be tested for purity. By doing this, Carrion was able to steal narcotics from the traffickers he was working for, and because the traffickers believed that their drugs were in the possession of the State they never learned that the drugs had been stolen.

    They spent two sizable paragraphs detailing the corrupt cop's practice of stealing drugs, replacing them with 'filler' and hiding the theft behind an arrest. To then claim that the defendant simply could not meet the bar they set is a slap right to the face and shows that the court had no interest in whether or not the defendant could meet the bar they had set, because they'd already decided that he was going down.

    It's clear they didn't give a damn about the corrupt cop or his actions, and in fact were perfectly willing to overlook his actions and pretend they simply didn't exists in order to uphold the conviction handed out. To call their ruling and the arguments they use to defend it disgusting is a gross understatement.

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  • icon
    Uriel-238 (profile), 28 Nov 2017 @ 11:26pm

    IANAL but this court has pretty openly admitted to evidence of miscarriage of justice and wrongful conviction. Also it has and chosen not to evacuate its prior ruling based on false evidence, by doing so acting to deprive a suspect of liberty.

    I would expect these minutes would be proof enough in all future trials to deny establishment of habeus corpus. Whether by corruption, obstinancy or incapacity, the court is, and thus the state is as well, too incompetent to ajudicate. It cannot legally pass judgement.

    I may not have the exact words right for those ideas, but this is either standing for the court to be disbanded, or clear indication that there is no oversight for judicial wrongdoing.

    In the latter case, it shows thus the state rules by threat of force, not by consent of the public.

    Am I wrong?

    reply to this | link to this | view in chronology ]

    • icon
      Barabaz (profile), 29 Nov 2017 @ 1:30pm

      Re:

      States (and governments in general) rule by force, and force alone. German points it out nicely:

      force = Gewalt
      power = Gewalt

      Do you see the similarity? That power needs to managed. That's where division of power comes in. There are many different kinds of implementations, e.g. the battered version called dictatorship or the somewhat better version "democracy", some implementations indistinguishable to dictatorship.

      In either implementation, power is abused. In dictatorship the ratio between legitimate and illegitimate cases tends to be high, but democracy isn't failsafe either. I wouldn't write it on incompetence, rather I see judges wielding power with a firm grip.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Nov 2017 @ 12:30am

    Wow....

    The only drugs we know for certain Pena was in possession of are the one planted in the cooler by the dirty cop. I think I've seen that in a movie or two.

    Makes me wonder if Carrion set up the "errand" for Pena to run too. Nothing like creating your own drug transporters to arrest.

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  • identicon
    Anonymous Coward, 29 Nov 2017 @ 1:52am

    MyNameHere's heroes, ladies and gentlemen.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Nov 2017 @ 3:13am

    That is not a dog, it is a judge. That is not carpet, it is our Constitution. The War on We the People continues.

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 29 Nov 2017 @ 3:56am

    Well shit. So cops are effectively gods shielded from anything and retainers of all truth that can't5 be touched. Got it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Nov 2017 @ 4:16am

    Guilty until proven innocent.

    Just because there is no evidence that he possessed a large amount of drugs, that doesn't mean that he didn't!

    Justice, Texas style!

    reply to this | link to this | view in chronology ]

  • icon
    izopnyde (profile), 29 Nov 2017 @ 5:02am

    COPs & robbery of your civil rights

    As a child I wanted to be a Federal Agent. Then I discovered the other side. Absolute power corrupts Absolutely!
    Yes you can get a good one but that’s called a lottery, not justice!
    I now judge every single statement coming from the police as potentially perjerous.
    The facts are that none can be trusted anymore. Moreover, I don’t trust people that carry guns that can kill you on a whim of paranoia with absolutely no way of bringing the truth to the fore. And judges aren’t any better. Most are only prosecuters in drag, only looking for their next step to money and higher power.
    The entire system is rotten with corruption and greed. Puerto Rico is a prime example of how the United States operates as a country upon the World stage.

    reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 29 Nov 2017 @ 5:53am

    I have to side with the court in this case

    I have to side with the court. The deception of law enforcement should definitely not affect the 15 year sentence.

    What it should affect is the CONVICTION. The conviction should be thrown out, ground up into fine powder, burned, and the ashes made into a new coffee ingredient for bad cops to drink.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Nov 2017 @ 6:00am

    "but because the dissenting judges couldn't agree on which issue of this abhorrent case was the worst, the plurality of judges refusing to punish law enforcement wrongdoing by stripping it of a courtroom victory"

    Tim, is this all a game to you? So let go a person who was transporting drugs because some dirtbag cop was a douchbag criminal?

    What is wrong with throwing them both in prison (better yet, let the drug dealers have the cop that ripped them off.)

    You are fine with letting someone who transports drugs free to punish cops? Yeah, that works, let a criminal go so cops in the future won't steal drugs.

    This isn't a game, it is the public that suffers, not the police.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 29 Nov 2017 @ 6:28am

      Re:

      "So let go a person who was transporting drugs because some dirtbag cop was a douchbag criminal?"

      Yes. Everything the cop said has to be taken as a lie, and if his word and evidence are the reason why the guy is in jail, he should be free.

      "You are fine with letting someone who transports drugs free to punish cops?"

      Yep. He's not a danger to society by himself. By the look of things, he was used by a drug gang as a mule because he was desperate for rent money, not because he's a habitual criminal or professional drug trafficker.

      Let the poor guy go, go after the people actually producing and selling the drugs. If you keep going after the weakest link like this, you will only get the lowest rung on the ladder and stop exactly zero drug sales. In fact, you might just transfer some of the profits from the drug cartels to the dirty cops since resources will be wasted going after the mules who know nothing about the overall operation.

      reply to this | link to this | view in chronology ]

    • icon
      someoneinnorthms (profile), 29 Nov 2017 @ 1:11pm

      Re:

      Are you out of your ever-loving mind? Let's leave aside how the public suffers from someone transporting drugs (I don't know many drug dealers who force-feed their product to unwilling customers).

      You sounds as if you find it acceptable that the State manufactured evidence against someone. Yes, that person may have been guilty of a crime, but the State manufactured the evidence. Let's think about it. The corrupt cop (a redundancy) took away the evidence that he was guilty of anything illegal. The corrupt cop then placed evidence of another crime where it could be "discovered." And, you're okay with this?

      So, if you ever run a red light, would it be okay if a police officer then placed a shit-ton of cocaine-laced drywall in the back of YOUR vehicle? I mean, you'd be guilty of a crime. It might be a different crime than the one you originally committed. But, hell, planting evidence on criminals is okay, right?

      Your argument that law ENFORCEMENT officers can plant evidence on criminals is specious at best and absolutely ridiculous at worst. I used to be a Republican, too. Come to see the light: the government exists for only reason--to plant its boot across the necks of all of us, one way or another. Our duty is to resist that, not applaud it in some twisted shadenfreude.

      reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 29 Nov 2017 @ 2:50pm

      It's a penalty to the state, even if the public suffers.

      Actually in this case, since the state messed up, yes, it is imperative that the defendant go free. When the legal system, including the department of justice / law enforcement fails to act in accordance to protocol, let alone the commission of a crime and miscarriage of justice by tampering with evidence, the trial must be vacated to protect the rights of the public.

      Otherwise there is no incentive by agents of the state to respect the rights of suspects at all, when officers and prosecutors can just say oopsie! and convict anyway.

      It's exactly what we do now. There is no enforcement of the constitutional rights of civilians, thus they are inconsistently enforced.

      reply to this | link to this | view in chronology ]

  • icon
    ShadowNinja (profile), 29 Nov 2017 @ 6:23am

    And this is why electing judges is bad

    This kind of crap is why electing judges is a bad idea. Elected judges know that talking about being tough on criminals looks great in TV ads, so they give out harsher penalties, and look less favorably on criminal's appeals, especially closer to an election.

    Letting just a single 'criminal' off the hook could cost you your job from an elected judge's perspective, if they go on to commit more crimes. See governors who have gotten into trouble for pardoning people who went on to commit more crimes in the future.

    reply to this | link to this | view in chronology ]

  • identicon
    Chuck, 29 Nov 2017 @ 6:29am

    To be fair...

    For everyone who is complaining that the cop got 5 years while the guy just driving a car got 15 years, one thing to keep in mind: when was the last time you heard of a drug cartel getting double-crossed and just shrugging? Ever? Me neither.

    This cop is marked for death. If the cartel doesn't get him in prison, they'll get him as soon as he's out.

    So really, the trafficker got 15 years, but the dirty cop got a death sentence. Texas is just letting the cartels handle the expense of the execution, guys. They can kill someone who actually deserves it for a change.

    Now, if you wanna get outraged about something, we can talk about how f**ked it is that a guy got 15 years for just driving a car. Sure, it was a car with drugs in it, and I'm sure he knew that, but here's the thing: this case is gushing plausible deniability from every nook and cranny. Unless he was stupid enough to admit it (unlikely since they didn't find the drugs until impound) then it would not be hard for him to claim he had no idea what was in the cooler, didn't ask, and didn't care. That's reasonable doubt, folks. Even a public defender could win this case. In his sleep.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Nov 2017 @ 6:36am

      Re: To be fair...

      The guy did plead guilty.

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 29 Nov 2017 @ 6:58am

        Re: Re: To be fair...

        Yep. Lots of people in the US do that whether they're guilty or not because they're faced with a system they can't afford to fight and they are given a relatively easy out. Often, "he pled guilty" only means he was convinced it was better for him not to fight the charge, not that he admitted to the crime.

        In this case, it seems possible that he would not have pled guilty to the charge in front of him had the facts known about the case been fully available to the defense, hence the problems with the case.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Nov 2017 @ 7:38am

    He got 15 years, doesn't seem like he was taking a plea deal.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 29 Nov 2017 @ 8:09am

      Re:

      FTA:

      "Pena was allowed to believe he was facing a significantly longer prison sentence if he didn't plead guilty"

      That seems like a plea deal to me, even if in this case the plea accepted appears to be the one for the actions taken rather than a reduction as is the usual method.

      My point is, "the guy did plead guilty" doesn't always mean anything in the US justice system since a guilty plea is so often coerced from people who may not be able to fight (and a guy willing to transport kilos of drugs for $500 to pay rent is not the kind of person who will have the money to fight in the US system).

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 29 Nov 2017 @ 8:41am

        Re: Re:

        You can argue that the sentence was too long, but you can't argue the guy didn't knowingly break the law.

        A guilty person went to prison.

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 29 Nov 2017 @ 8:57am

          Re: Re: Re:

          "you can't argue the guy didn't knowingly break the law."

          I don't believe I, or anyone else, was arguing that.

          "A guilty person went to prison."

          ...for an excessively long time due to the fact that he pled guilty, a plea that may not have been made if all information was available at the time. Context is important.

          Even the guilty deserve a fair trial & a fair run through the justice system if they waive that right by making a guilty plea. That doesn't appear to have happened here.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Nov 2017 @ 8:20am

    On the fence here

    In exchange for money the guy did agree to do something that he had to have known is likely illegal.

    He is guilty of transporting, what he thought was likely illegal stuff.

    I think the real issue here is 15 years for transporting an unknown tiny quantity of drugs does not fit the crime.

    While the laws say 15 years minimum that does not mean those laws resulted in anything resembling justice.

    reply to this | link to this | view in chronology ]

    • icon
      crade (profile), 29 Nov 2017 @ 11:17am

      Re: On the fence here

      The real issue is the systemic corruption. The court is lying through their teeth to make sure that having dirty cops around is only a minor issue that doesn't have to be taken seriously.

      20 kg of drywall doesn't suddenly become "diluted cocaine" as soon as it touches cocaine, and saying it does is completely disingenuous.

      Saying this trial would have played out the same way if the corruption were exposed during the trial is just plain ridiculous, and there is no way they believe that.

      reply to this | link to this | view in chronology ]

      • identicon
        Paul Brinker, 29 Nov 2017 @ 12:53pm

        Re: Re: On the fence here

        Legally he never challenged the quality when he pled guilty, this would be the "correct" place to make that challenge. Thus he could then challenge the Dilution standard on appeal by making the same arguments we are making.

        The problem here is that he did not know this, or how the court system works at all. His appeal is simply saying, "I only pled guilty because discovery had incorrect information". The court is responding only to that argument here. Thus the insane situation we find ourselves in.

        Should he wish to continue, he would need to appeal the definition of Diluted that the court used and argue that it's to vague as to include 25 lbs of drywall with a sprinkle of cocaine as 100% cocaine. To do otherwise invites abuse for lots of reasons. Other standards could be used as well including, minimum dosage for any effect.

        The good news is that he has standing to do this now since the court used it as a measure.

        reply to this | link to this | view in chronology ]

  • identicon
    Citizen Smith, 29 Nov 2017 @ 9:44am

    What Justice?

    It is called "Let Us Pretend."

    All is a scam. A charade. A big pussy cat toying with minions of mice (i.e., us) for amusement and perpetuation of a cruel hoax pretending to be a civilized society.

    Oops. Gotta go. Time for another war.

    reply to this | link to this | view in chronology ]

  • icon
    tom (profile), 29 Nov 2017 @ 9:54am

    I do wonder what percent of a substance has to be cocaine under TX law to be considered cocaine? If a few grams of cocaine mixed with pounds of random power is legally pounds of cocaine for sentencing purposes, is a few grams of cocaine mixed into load of sand in a dump truck also legally tons of cocaine? Hell of a way for LEOs to pad the stats of cocaine intercepted.

    Anyone know what sentence, if any, the cop that stole the real mostly pure cocaine received? Should receive an equivalent 15 year sentence for transport of real cocaine, a theft charge, a corruption charge, and probably more.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Nov 2017 @ 10:04am

    Reminds me of an old "joke":

    The police found 20kg of cocain in the car.
    The 10kg were tranported to the station where the 2kg were stored until trial.
    During trial the 200g were presented to the court.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Nov 2017 @ 7:38am

      Re:

      You lost everyone in the US that can't do metric conversion...

      reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 30 Nov 2017 @ 12:12pm

        Metric conversion

        About 60 lbs off the top of my head.

        53 lbs according to DDG so I overestimated.

        To be fair, cocaine powder as a commodity is usually sold in kilograms and grams. Cannabis is sold in ounces and pounds.

        reply to this | link to this | view in chronology ]

  • icon
    crade (profile), 29 Nov 2017 @ 10:57am

    "because Pena believed he was transporting genuine cocaine"
    Where was this shown? I thought he claimed to have no idea what was in the chest

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Nov 2017 @ 11:54am

    How long until they start weighing drug users' bodies along with whatever they find in their pockets? After all, a human body with cocaine in it is really just "diluted cocaine", right?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Nov 2017 @ 12:11pm

    and there's nothing wrong with US justice? you gotta be fuckin' kiddin' me!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Nov 2017 @ 12:26pm

    Hopelessly Biased Against the Prosecution

    My new excuse from jury duty will be that I am unable to trust any testimony or evidence against any defendant, due to the wide array of historical demonstrations of lies, cheats, and collusions of team Law & Order and their jurist co-conspirators.

    reply to this | link to this | view in chronology ]

  • icon
    Hugo S Cunningham (profile), 29 Nov 2017 @ 8:09pm

    "Mens rea" was there, though "actus reus" was weak

    Momentarily setting aside my opposition to the unwinnable War on (Some) Drugs, I can see some logic in the appeals court's reasoning.

    Libertarians, particularly on the right, often denounce prosecutions for acts that an average defendant would not know were illegal-- the defendant lacked "mens rea" (a "guilty mind"). But this case is the opposite-- the defendant *intended* to transport 26 kg of cocaine knowing it was illegal. It was not his "fault" (so to speak) that there was only 1 gram. Apart from my general opposition to draconian Drug War penalties, I don't feel very sorry for him.

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 30 Nov 2017 @ 12:15pm

      "I don't feel very sorry for him."

      I just feel sorry for the next batch of guys who won't be guaranteed a reasonable arrest or a fair day in court.

      reply to this | link to this | view in chronology ]


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