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Criminal Defense Videos

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.

Categories
Criminal Defense Videos

How to Win Drug And Gun Cases Part 1: Put the Police on Trial

In this episode, Attorney Cowan talks about how to win drug and gun cases by putting the police on trial in a motion to suppress.

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I think reasonable people can differ about what sort of criminal justice system we should have, what sort of prison system we should have, but one thing that I think very clear is that, if we’re going to have a system of laws, and if we’re going to punish people for not following those laws, then by gum, the people in charge of enforcing those laws ought to follow the laws about their behavior. In drug and gun cases, these are the very few cases where we can hold the police accountable, and get a judge to impose some actual consequences in the form of dismissing a case where the police didn’t follow the rules.

Hi, I’m Andy Cowan. I’m a criminal defense lawyer based in Cambridge Massachusetts, and today we’re going to be talking about how to defend a drug case in Massachusetts. This is something that I do a lot, and it applies to gun cases as well. Basically any time that you’re charged with possessing something illegal that the police found on your person, in your car, or that’s being otherwise attributed to you in some way. Most commonly this is drugs and guns.

Often people come to me with these cases thinking that they have no defense, they’ll say, “I was caught red-handed. The drugs were in my pocket. They were in the glovebox of my car. I have no defense, but I can’t plead, because there’s a mandatory jail sentence. What do I do?” What people don’t know is that there usually is a defense. I’ve spent a lot of my career focusing on this question of how to defend a drug case. And how to defend drug cases when somebody really is caught with the substance in their possession.

The first step is always to put the police on trial. This is what I love about drug and gun possession cases. You get to file a motion called a motion to suppress. And in that motion we have a little mini trial, that’s not about whether you’re guilty or not guilty of possession, or distribution, or trafficking, or whatever you’re charged with, instead what we’re trying in the motion to suppress is the question of whether the police are guilty or not guilty of violating your constitutional rights. And if the judge agrees with us that the police violated your constitutional rights, then anything they found as a result is suppressed or thrown out of the case.

There’s a number of different issues you can raise in a motion to suppress. Did the police have a constitutionally adequate bases to stop you? Did they have a valid basis to search your car? Tow your car? Bring a dog to sniff your car? Any time that the police do something that either stops you from moving freely about your life, or that searches you, or searches one of your possessions, or searches an area that you’re associated with, that is what we call a constitutional moment where the police have to be able to justify why they did what they did. And if they can’t, you win.

So for example, I had a case back in 2010 where the police officer claimed that the reason he was allowed to remove my client from a car by the side of the road after stopping him for speeding, was that he saw a little baggie of marijuana sticking out of the client’s pant’s pocket. But I spent an hour asking that officer questions. What type of car was it? How tall was this car? How tall are you? Where was your eye-level on the driver of this car? What was the weather like? What was the lighting like? And by the time we were done it was very clear to everybody in the room that this officer could only have seen what he claims to have seen, if he had x-ray vision. That case ended with the judge saying, “Officer, I don’t believe you.” And she suppressed the heroin that my client was charged with trafficking in, because she couldn’t believe the police officer about why he’d stopped and searched the guy.

That is a very clear message from the court to the people, to say, “Look, we have these crimes where, you didn’t actually hurt anybody, you just did something that society has said should be illegal. But the way the police caught you, that was illegal too. So we’re gonna call it a wash. We’re gonna throw out the charges, and everybody goes home.” And I love being able to get that king of justice for my clients.