Most people don’t think drugs are a serious problem in their local communities. But about three-fourths believe America’s drug trafficking problem is very or extremely serious. In other words, many jurors are willing to let drug possession defendants off the hook. Some municipalities have even partially de-criminalized drug possession. On the other hand, most jurors are itching to punish drug traffickers, and punish them harshly.
Procedural defenses, which allow a Marietta criminal defense lawyer to resolve a case before a jury addresses its merits, are therefor very important in drug trafficking cases. If, during a pretrial hearing, the judge agrees the defense applies, the judge will most likely throw the case out of court. Procedural defense are also effective bargaining chips during pretrial settlement negotiations. Frequently, prosecutors would rather convict the defendant of something, which in this case is usually drug possession or another lesser included offense, than roll the dice at trial or a pretrial hearing and come up empty.
No Speedy Trial
We start with one of the most rarely used procedural defenses. Delay usually benefits the defendant. Alleged victims lose interest in the case, witnesses relocate, physical evidence deteriorates, and other helpful things occur.
Furthermore, when a Marietta criminal defense lawyer files a speedy trial motion, the prosecutor usually suspends settlement negotiations. So, unlike many other procedural defenses, speedy trial is never a bargaining-chip defense. It’s an all-or-nothing defense.
All that being said, sometimes criminal cases fall through the cracks, especially in large metro areas like Greater Atlanta. In these cases, defendants have a constitutional and statutory right to a speedy trial.
The constitutional right is tied to the statute of limitations, which is normally four years in a drug trafficking felony case. Once this clock hits zero, the state forfeits the right to prosecute the defendant for that offense.
O.C.G.A. Section 17-7-170 outlines speedy demands in Georgia. If a defendant files a speedy trial motion the case must go to trial by the end of the next court term. Cobb County courts have two-month terms, so the state doesn’t have much time to prepare. In other jurisdictions, court terms could be longer or shorter.
Collateral Estoppel
This Legalese phrase means, as one of our law professors said, you only get one trip to the salad bar of justice. Occasionally, due to a glitch, a defendant is charged with drug trafficking and a similar offense, like drug distribution. Or the state loses a drug trafficking trial and then files drug possession or other charges. Both these things are illegal.
Event collateral estoppel is more common in drug trafficking cases. Larry and Moe plead guilty to drug trafficking. Later, evidence surfaces that Curly was involved in the scheme as well. Can the state charge Curly with drug trafficking, even though a court has finalized that issue? The law is uncertain.
Entrapment
In many drug trafficking cases, an undercover officer infiltrates the group and encourages other people in the group to traffic drugs.
These facts usually don’t support an entrapment defense. A Marietta criminal defense lawyer must prove police officers planted the seed, and the defendant had no predisposition to commit the crime. If Sam is in a criminal or pseudo-legal organization, he has some predisposition, however slight, to commit a drug trafficking offense.
Confrontation Clause Violations
If a statement is testimonial, the person making the statement must generally be available for cross examination. According to the Supreme Court, a statement is testimonial if the statement:
- Describes past events or events as they are happening,
- Assists the investigation of a crime or provides information relevant to some other purpose, and
- Is formal.
This rule doesn’t apply if the witness is unavailable. Even then, the defendant must have had a prior opportunity to confront the witness through cross examination.
A witness may be unavailable for a variety of reasons. Many witnesses, especially in drug trafficking cases, plead the Fifth. Witnesses may also be unavailable because they have died, had memory loss, or simply decided not to cooperate.
Exclusionary Rule
The Fourth Amendment limits police searches and seizures, and the Fifth Amendment limits police interrogations. But the Constitution didn’t include any language regarding the admissibility of such evidence. The exclusionary rule came much later. The Supremes outlined the exclusionary rule in 1897, expanded it in the 30s and 40s, and applied it to states in 1961.
The exclusionary rule excludes any evidence obtained in violation of the Fourth or Fifth Amendment. It also excludes any indirect evidence, such as fingerprints obtained after an illegal arrest, as fruit from a poisonous tree.
No Lawyer
The multifaceted Sixth Amendment contains many guarantees regarding the availability of a Marietta criminal defense lawyer. For the purposes of this post, we’ll focus on two.
Courts have consistently held that Sixth Amendment rights kick in when the prosecution enters a critical phase, a phrase that usually means when the state files formal charges. The critical phase often happens earlier in drug trafficking cases.
The Supremes also recently held that civil forfeiture proceedings, which are very common in drug trafficking cases, cannot compromise defendants’ ability to hire counsel of their choosing. So, the state cannot seize so much money or other property, even if it’s clearly connected with drug trafficking, that the defendant must hire a cheap Marietta criminal defense lawyer or go with a public defender.
Selective Prosecution
This bottom-of-the-barrel procedural defense is rarely successful. In 1996, the Supreme Court ruled the Attorney General and United States Attorneys “retain ‘broad discretion’ to enforce the Nation’s criminal laws” and that “in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.” Therefore, the defendant must present “clear evidence to the contrary,” which shows “the federal prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose.”
Unequal application (more nonwhite people than white people are charged with drug trafficking) doesn’t constitute selective prosecution. Usually, a Marietta criminal defense lawyer needs a smoking gun.
Several procedural defenses are available in drug trafficking cases. For a free consultation with an experienced Marietta drug crime lawyer, contact The Phillips Law Firm, LLC. Virtual, home, and jail visits are available.