How to Win Drug and Gun Cases Part 2: Substantive Defenses

In this episode, Attorney Cowan talks about how to win drug and gun cases by challenging whether the state can really prove its case.

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The second thing that we check in a drug or gun possession case, is whether the substance that you’re charged with possessing illegally is what the police say it is. This may seem self evident, but often it’s not. Even in a case where the client thinks it is. So for example, I’ve had cases where the client was charged with possessing heroin. And they said to me, “Attorney Cowan, I don’t know if it was heroin. I hoped it was. That’s why I bought it. But I was arrested right after. I never got to have any and I don’t know if it was fake.” And sometimes the results come back from the lab saying that it was fake.

In Massachusetts it’s a crime to sell fake drugs, but it’s not a crime to buy fake drugs. And so, if what you’re charged with possessing turns out not to be real, you’re off the hook. Likewise with a firearm. Often people carry around something that they believe to be a firearm, that they hope to be a firearm, but they don’t know if it works, because they’ve never fired it. And in Massachusetts, if it doesn’t go bang when you press the trigger, it’s not a firearm. And no matter how good it is for scaring people on the street, it’s not an illegal gun.

Number three, what’s the weight? If you’re charged with possessing marijuana it has to be over an ounce to be a crime. If you’re charged with trafficking in marijuana, cocaine, cocaine, fentanyl, or some other drug, the weight of the substance determines whether you’re charged with trafficking versus possession. And it determines what level of that crime you’re charged with. More weight usually equals more jail time. Usually the police report will contain a weight listed on the report. But that weight includes all the baggies, the packaging. Most drugs that are trafficked in Massachusetts are very lightweight. Heroine, cocaine, marijuana, these are not heavy things. And so the weight of the packaging is actually significant compared to the weight of the substance. Especially in small amount cases. Legally, you’re only charged with what the weight of the substance is, not the weight of the packaging. And in close cases we’ll hire our own expert, an analytical chemist to come in and reweigh those drugs without the packaging, just like they’re supposed to do at the state lab. And sometimes that can bring you back under that threshold where it’s either not a crime, or it’s a less serious crime.

Finally, another useful way to approach defending a drug case is to question the fact of whether you actually possessed the substance, or whether you were involved in the distribution that you’re charged with. In a possession case, it’s not uncommon at all to see three or four people in a car, the bag of drugs is found in the center console, under the front seat, or in the glove box. But everyone in the car is charged with possessing it. And often, because of the weight, it’s possession with intent to distribute.

Under the law however, you’re only guilty of that crime if you had knowledge that the substance was there, if you knew that it was an illegal drug, and if you had the intent to possess it, and the ability to control it. So even if you know that your buddy is carrying, whether it’s a drug or a gun, you can’t legally be charged with it, unless you had both the ability and the intent to control that object or substance. And that’s something that the police have to prove against you beyond a reasonable doubt. Just being in the car isn’t enough. And we absolutely try cases and win cases on that basis.

Likewise in a distribution case, it’s very common for the police to arrest and charge not only the person that they actually caught or suspected dealing the drugs, but everybody else who lives in the same house, is a member of the same family, or anybody that they find in the general vicinity of that illegal drug transaction. But again, that’s not enough. They have to prove that you, as the person charged with distribution, that you knowingly and intentionally participated in a crime. Not just that you knew it was happening around you. Not just that you didn’t stop it. You’re not obligated to stop it. They have to prove that you had something to do with it.

Just last year I had a case where my client was arrested, charged, indicted, and put on trial for no greater crime than being married to a drug dealer. And after seven years of pretrial maneuvering, and after a whole week of trial in superior court, we got a judge to throw out those charges for exactly that reason. That even at the end of the trial the police had not established any proof that she was involved in her husband’s illegal drug dealing.

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