METH: DRUGS, NOT WEAPONS

Superior Court Judge James Baker was asked if the process of "cooking"
methamphetamine created a weapon of mass destruction. Following two days of
legal argument in a Watauga County courtroom, he decided that it did not.

On Friday, Baker dismissed 15 charges against at least 10 accused charged
with possessing, storing or manufacturing a weapon of mass destruction (WMD).

The charges arose out of allegations of meth production and Baker said that
he will follow his oral decision with written orders in each case.

His written decision, if it follows the oral comments released from the
bench Friday, will bring into question the constitutionality of the WMD
statute.

District Attorney Jerry Wilson announced his intention to appeal Baker's
decision. He said, "I believe Judge Baker's ruling is incorrect.

"Until further action by the appeals courts those persons who produce
deadly chemicals as a part of the production of methamphetamine cannot be
charged under the chemical weapons statute."

Eight of the accused, unable to make bail that went as high as $500,000,
sat in the courtroom and listened as Baker went through the indictments and
dismissed WMD charges in each indictment.

Wilson has charged a number of Watauga County residents under the North
Carolina WMD statute because methamphetamine "cooks" are combining toxic
and volatile chemicals to produce the illegal drug and the combination of
the chemicals creates a number of substances that pose a chemical threat to
neighbors, law enforcement personnel, emergency personnel and firefighters.
Dismissing the WMD charges, a felony offense calling for a minimum of 12
years and a maximum of life in prison, will lower the bail of the accused
and some may now be able to raise the money or property necessary to secure
bail.

Being released on bail will not solve their legal problems. Without
exception, the accused are facing additional charges. In addition to the
WMD charges, most of the accused also face charges of manufacture,
possession, sale or delivery of methamphetamine or possession of the
precursor chemicals for meth. Those charges were not affected by Baker's
rulings.

In dismissing the WMD charges, Baker noted that Wilson was charging the WMD
offenses out of a frustration with the current penalties in the North
Carolina statutes for the manufacturing of meth.

He noted that the proper place for the correction of the penalties for meth
manufacturing was the North Carolina General Assembly, not the courtroom or
the office of the District Attorney.

With respect to each of the alleged WMD charges, Baker found that they were
either unconstitutional on their face or unconstitutional as applied by
Wilson to the facts charged.

In Friday's hearing, Wilson and Assistant District Attorney Charlie Byrd
argued that the "cooking" of meth required the creation and production of a
number of toxic chemicals and gasses and that meth cooks created those
gasses, acids and compounds "knowingly" as part of the meth production process.

Knowing production of those substances was a separate and distinct offense
and fit into the clear language of the WMD statute, Wilson and Byrd argued.

Baker had problems with some of the broad language of the WMD statute and
its ability to be interpreted to include innocent conduct and materials. He
noted that a necessary, and toxic, chemical in meth production is made by
combining tincture of iodine and hydrogen peroxide.

He said that he stopped by CVC pharmacy on his way home after court on
Thursday night and noticed both items on the shelves of the pharmacy. He
also noted that one of the accused was charged with possessing both items
as "precursor chemicals."

The term "nuclear, biological, or chemical weapon of mass destruction," as
used in the statute "means any of the following: Any weapon, device, or
method that is designed or has the capability to cause death or serious
injury through the release, dissemination, or impact of: a. Radiation or
radioactivity; b. A disease organism; or c. Toxic or poisonous chemicals or
their immediate precursors."

In dismissing that charge, Baker said that he wasn't sure that charging
possession of tincture of iodine and hydrogen peroxide as "precursor"
chemicals even stated a criminal offense.

Wilson's WMD charges have gained national attention and he has frequently
stated his frustration with what he perceives to be inadequate penalties in
the statutes for the production of meth.

In a September interview, N.C. Attorney General Roy Cooper declined to
comment on Wilson's tactics or the use of the WMD statute for drug
manufacturing, but said, "It's a reflection of the frustration that law
enforcement and prosecutors feel about being overwhelmed by this problem of
secret drug labs and not being given the resources and the appropriate
sentencing for this type of activity.

"I'm going to work with Mr. Wilson and Sheriff (Mark) Shook and law
enforcement and prosecution all across the state to present a package to
the General Assembly which will include appropriate punishment for this
type of activity. We have to send a message that we are not going to
tolerate this, and that includes tough sentences."

Thursday afternoon defense counsel, Vince Gable, Scott Casey, Gail Fannon,
Eric Eller, David Flaherty, Joe Seagar, David Turlington and Steve Carlson
combined arguments and adopted each others' legal arguments in a concerted
attack on the WMD charges.

They argued successfully that:

. The WMD statute makes it unlawful to "knowingly" store, manufacture or
possess a WMD. The WMD statute doesn't apply to meth labs because the
people manufacturing the drug are not "knowingly" possessing, manufacturing
or storing a "weapon." Their intent is to create a drug.

. Wilson's actions would create a cruel and unusual punishment in violation
of the Eighth Amendment to the U.S. Constitution by seeking to increase the
penalty beyond the legislative intent and add a punishment more severe than
other drug penalties, a matter that should be taken up by the General Assembly.

. A specific statute existed listing methamphetamine as a controlled
substance and providing a penalty for possession or manufacture. The WMD
statute does not mention meth or other drugs and the court must therefore
use the specific statute.

. The WMD statute, as applied by Wilson, could apply to any number of
household products and subject innocent citizens to arrest.

. The language defining weapons is too vague to be enforced or interpreted
and reasonably includes legal conduct and material in the definitions. The
language of sections of the WMD statute was too vague to be legally
enforceable.

The defense counsel gave examples of activity that could, under Wilson's
interpretation, be defined as a device or process under the statue. While
the statute excludes legal use of chemical substances, no one was able to
explain how the statue would apply to some "illegal" acts combined with the
production of toxic materials or chemicals. It was the inability to clearly
define the treatment of these otherwise innocent acts that seemed to cause
Baker the most concern.

Defense counsel argued that a Christmas tree farmer is required to have a
license and certificate to spray pesticides and herbicides.

Defense attorney Eric Eller asked, If he does not have the proper license
and sprays toxic chemicals, it is an illegal act, removing him from the
legal use exclusion. He would be spreading a potentially toxic chemical
into the air, ground and ground water. Is it a WMD and could he be charged?

The inability to clearly answer that, and other, hypothetical questions
appeared to be a significant basis of Baker's ruling and his concern that
sections of the statute were unconstitutionally vague.