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CHARLAYNE HUNTER-GAULT: Now for more on today’s oral arguments, we turn to NewsHour regular Stuart Taylor of the “American Lawyer” magazine. Stuart, thank you for joining us. We’ve just seen the details of the California case, but there were two cases, the other from Michigan. Briefly explain that one.
STUART TAYLOR, The American Lawyer: Yes. The Michigan case is a little bit more sympathetic for the defendant than this case in California, because the defendant in Michigan, for one thing, is not a drug dealer. He grew some marijuana near his home, and he cured it in his home, and he, his wife, and his grown son smoked it until the son broke up with his fiancee, who turned them all in, and they were arrested, or he was arrested, and first, his property, the government tried to forfeit his home and his ten acres, and then they prosecuted, convicted him, and wanted to send him to prison for five years. And he’s in the Supreme Court saying, they can’t do both of these things to me.
CHARLAYNE HUNTER-GAULT: Are the cases together? I mean, they’re joined?
STUART TAYLOR: The cases have been consolidated because they have a lot more in common than they have indifferent, but it would be possible for, for one of them to win and the other to lose, not likely but possible.
CHARLAYNE HUNTER-GAULT: And basically just to reiterate that the case is simply–can you say the case is simply–
STUART TAYLOR: Simply about–
CHARLAYNE HUNTER-GAULT: About–
STUART TAYLOR: Yeah. The only issue in both cases is whether the double jeopardy clause of the Fifth Amendment of the Constitution bars the government from first prosecuting someone for the crime and then trying to forfeit their property in a separate proceeding, or doing the same thing in the reverse order.
CHARLAYNE HUNTER-GAULT: Why is this case so important?
STUART TAYLOR: The government says that there are hundreds of appeals and potentially thousands of appeals by drug dealers in prisons all over the country who are saying, hey, they did the same thing to me; they either have to give me my property back, or they have to let me out of prison, depending on which proceeding came first, and the government says it throws a huge monkey wrench into their very active forfeiture program, which has garnered some $4 billion over the last 10 years for the government, if they have to worry about people being able to get out of prison because they didn’t dot their “i’s” and cross their “t’s” right when they brought these different proceedings.
CHARLAYNE HUNTER-GAULT: And that money, as we heard in the taped piece, is turned back to government, law enforcement officials to continue to fight the so-called drug war, right?
STUART TAYLOR: Yes. A lot of it goes right back to the agencies that do the forfeitures in the first place, which has been criticized as giving them a particular incentive, a very self-interested incentive to do this very aggressively.
CHARLAYNE HUNTER-GAULT: What are the potential ramifications of this case? Let’s start first with the defendants.
STUART TAYLOR: If the defendants win, the man, Mr. Ursery, the man in Michigan, the marijuana grower and smoker, doesn’t have to go prison. He doesn’t get his $13,000 back, which is how he settled the effort to forfeit his home, but he avoids five years in prison. If the two drug dealers in California win, because their criminal proceeding came first, they theoretically get their property back, their helicopter, their car, their gold bars and everything, silver bars. I’m not sure what they’re going to do with the helicopter in prison, but theoretically, they have a right to have it back. Those are the immediate consequences for the people involved in the cases. Now, of course, if they lose, they all, Mr. Ursery has to go to prison, and the other two guys stay there and don’t get the helicopter or any of the other stuff back.
CHARLAYNE HUNTER-GAULT: All right. And what are the potential ramifications for the war on crime?
STUART TAYLOR: If they win–
CHARLAYNE HUNTER-GAULT: I’m sorry–the war on drugs.
STUART TAYLOR: If they win, the government claims the war on drugs will be inhibited. I think defense lawyers are rather skeptical of this. As Laurie Levenson pointed out on the taped piece, the government has a lot of ways they could live with a decision against them in this case. It would make it a little bit harder for them and take away some of the tactical advantages they have, and it might cost them some convictions and some forfeitures that they’ve gotten in the past, when they hadn’t anticipated this problem.
CHARLAYNE HUNTER-GAULT: How did each side argue today?
STUART TAYLOR: The defense lawyers came in and said this is a simple double jeopardy case. As Lawrence Robins, representing Mr. Ursery, said, this case is clearly controlled by the court’s cases, meaning recent Supreme Court precedents lay down rules as to what’s punishment and what’s being punished twice, and what’s the same offense that make it clear the double jeopardy clause bars what was done to his client.
The government, on the other hand, the prosecution, Michael Drevon, the assistant solicitor general, argues we win about four different ways and the three most important were the civil forfeiture is not a punishment as defined by the law, these are not two separate proceedings, they’re one integrated proceeding as defined by the law, and he also argues that, that they’re not the same offense, that there are some things you have to prove to win the criminal conviction that you don’t have to prove to get the civil forfeiture and, therefore, they’re not quite the same.
CHARLAYNE HUNTER-GAULT: And how were the Justices reacting?
STUART TAYLOR: It seemed pretty clear that they were reacting in favor of the prosecution, the majority of them. A couple of them gave a little bit of a hard time to, to the government on some, some issues, some of its logic. Justice Souter, for example, said to the government, look, your position is logically incoherent on some issues–
CHARLAYNE HUNTER-GAULT: Meaning–
STUART TAYLOR: Meaning that the government was arguing that punishment for purposes of the double jeopardy clause may mean something different than punishment for purposes of some other provisions of the Constitution, such as the Eighth Amendment “excessive fines” clause, because he argued he was trying to distinguish some recent, a 1993 Supreme Court precedent, and so he was cutting, he was splitting hairs in a way that Justice Souter found didn’t work. Justice Scalia made the same point, but it seemed as though Justice Scalia and most of the members of the court, particularly Clinton-appointed Justice Ruth Bader Ginsburg, were very much looking to rule for the prosecution in both of these cases.
CHARLAYNE HUNTER-GAULT: All right. Well, we’ll just have to wait for the ruling. Thank you, Stuart.
STUART TAYLOR: Thank you.