Sunday, January 27, 2008

They made me do it

Just because you can make a charge "stick" does not mean you should always do it. The DA's office knows what the legislature has intended to implement here in Bexar County. There is discretion when one is a prosecutor, a prosecutor is to seek justice not convictions.

Is this an attempt to put a chilling effect on a program disapproved of by the DA, Susan Reed? Arguably, what they were doing was not within the purveyance of the proposed program but it sure seems like she is sending a message to those who will be putting it into place.

Trio's arrest pits prosecutorial duty against public health issue
Jaime Castillo: Express-News

It's not easy for a prosecutor to see criminal activity in shades of gray.
And looking the other way is especially difficult when, like Bexar County District Attorney Susan Reed, you have a reputation as the law-and-order type.

But it's hard to imagine the community is going to be a better place if the book is thrown at 73-year-old Bill Day, 67-year-old Mary Casey and 39-year-old Melissa Lujan.

The trio is more drive-by Florence Nightingale than Bonnie and Clyde.

Their trail of "criminal depravity" is spelled out in a recent police report.

On Jan. 5, an officer observed the group's minivan parked on a West Side corner and surrounded by "several known prostitutes and drug addicts."
In broad daylight, Day and his fellow members of Bexar Area Harm Reduction Coalition were trading clean syringes for dirty ones in an effort to reduce the spread of HIV and hepatitis.
Approached by the officer, Day explained what they were doing and produced a typical syringe kit for his inspection.

What happens next is where things get a bit tricky.

According to the report, Day presented himself as a county employee who had permission to pass out syringes. He also produced the business cards of two high-ranking local law enforcement officials to add to his air of credibility.

Trouble is Day is not a county employee. And his nonprofit organization is also not part of an official effort to create a pilot syringe-exchange program in Bexar County.
That program, which would be the first legally sanctioned one in Texas, has been put on hold until the attorney general's office rules on Reed's contention that the legislation that created it was faulty.

Day, meanwhile, has alleged that the police report contains errors, but hasn't offered specifics.
The upshot is this: On the day of the alleged offense, Day, Casey and Lujan were each cited on a charge of possession of drug paraphernalia — a Class C misdemeanor punishable by a fine of up to $500.

On Thursday, police refiled the case with Reed's office as a more serious Class A misdemeanor, distribution of drug paraphernalia, which carries a punishment of up to a year in jail and a $4,000 fine.

Even if Day misrepresented himself, nobody in the public health community I talked to believes that a 73-year-old retiree and two "accomplices" in a minivan are trying to make it easier for junkies to do "smack."

Neel Lane, the group's attorney from the influential firm Akin Gump Strauss Hauer & Feld, said he thinks the charges have more to do with the politics of those who don't approve of such programs.

"There are needle-exchange programs in Austin, Dallas and Houston that are more or less open about it, and they have not been prosecuted," said Lane, who is part of a pro-bono legal team that includes high-profile criminal defense attorney Gerald Goldstein.

First Assistant District Attorney Cliff Herberg scoffed at the notion, saying Day and the others were cited by an officer on routine patrol.

"Nobody went out looking for this," he said.

A decision hasn't been made, but Herberg acknowledged the Class A charge could stick because the group was providing more than clean syringes.

The "kits" also included silver caps, which are used to "cook" drugs like heroin before they are injected.

While health officials argue it makes little sense to provide clean syringes to addicts who use dirty spoons, Herberg said the pilot program legislation does not provide for such items.

If there is punishment, let's hope it fits the crime and nobody forgets that a public health issue is buried here somewhere.