DEFENSE LAWYERS OPPOSE METH LAW INTERPRETATION

Does the "cooking" of methamphetamine create a weapon of mass destruction?
On an emotional level, with the impact the drug has had on lives and
families in Watauga County, many residents would answer "yes."

Superior Court Judge James Baker has been asked to answer the question as a
legal matter, not an emotional one, and the process of answering that
question began late Thursday afternoon.

District Attorney Jerry Wilson has charged a number of Watauga County
residents with the manufacture, possession or storage of a weapon of mass
destruction (WMD).

Wilson argues 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.

Wilson's WMD charges have gained national attention and he has received
statewide and local support for his attempt to address a dangerous problem
and, what he perceives to be, inadequate penalties in the existing statutes.

Watauga County criminal defense attorneys are in almost unanimous
opposition to Wilson's position.

Thursday afternoon, in what looked like a bar association meeting, seven
defense lawyers, representing 10 defendants accused of possessing, storing
or manufacturing WMD appeared before Baker to argue motions to dismiss the
WMD charges on legal and constitutional grounds.

The defense counsel, Vince Gable, Scott Casey, Gail Fannon, Eric Eller,
David Flaherty, Joe Seagar and Steve Carlson, divided the arguments and
each took a section of the briefs filled on behalf of their clients. Baker
combined the hearings on this issue because the legal issue is the same for
all accused.

The hearing will continue today with Assistant District Attorney Charlie
Byrd expected to argue that the manufacture of meth falls within the clear
language of the WMD statute.

Flaherty provided a history of the statute and told Baker that nowhere in
the minutes of the legislative committees was there ever a mention of using
the WMD statute in drug cases. He said that the statute, written and passed
in response to the terror attacks of Sept. 11, was designed to combat
terrorism. The statute makes it unlawful to "knowingly" store, manufacture
or possess a WMD.

Flaherty, in an argument repeated by all of the defense counsel, said that
the WMD statute doesn't apply to meth labs because the people manufacturing
the drug are, at no time, "knowingly" possessing, manufacturing or storing
a "weapon." He said their intent is never to create a weapon; their intent
is to create a drug.

After deciding to charge a violation of the WMD statute (North Carolina
General Statute 14-288.21) when a "working or recently used clandestine
methamphetamine laboratory is discovered," Wilson said that the WMD charges
were, in part, to ensure a higher bail for the higher level felony.

Manufacturing meth has a sentence range of probation to 30 months in jail.
WMD carries a minimum penalty of 12 years to a potential maximum of life in
prison.

"Local law enforcement is seeing a pattern where 'cooks' are gaining
pretrial release almost instantaneously and continuing with the
manufacturing of methamphetamine," Wilson said. He added that some accused
had been charged with meth related offenses three times in a six month period.

Shining a spotlight on the "success" of the higher bail goal, the defense
counsel insisted that their clients be brought over from jail. Eight of the
10 accused, six men and two women, appeared in court in orange, jail
jumpsuits, unable to make the bails approaching $500,000 for the major felony.

Gable is the lead attorney contesting the WMD charges. His motion to
dismiss on behalf of four of his clients, states that Wilson's actions
create a cruel and unusual punishment in violation of the Eighth Amendment
to the U.S. Constitution. He argued that Wilson's acts seek to increase the
penalty beyond the legislative intent and add a punishment far more severe
than any other drug penalty.

Casey argued that a specific statute existed listing methamphetamine as a
controlled substance and it provides a penalty for possession or manufacture.

The WMD statute does not mention meth and when the court is given the
choice between a specific statute and a general statute it should rely on
the specific statute.

The attorneys argued that Wilson's application of the WMD statute seeks to
circumvent the legislative intent in order to increase the penalties, a
matter that should be taken up by the General Assembly.

It was also argued that the WMD statute, as applied by Wilson, could apply
to any number of household products and subject innocent citizens to arrest.

Mixing chlorine-based toilet cleaner and ammonia creates a toxic gas; is
that the production of a WMD? Baker pointed out that the WMD statute
excludes the possession of legal chemicals and materials held for a legal use.

"Cleaning your toilet is a legal use," he said.

Two examples were argued around Baker's example of a legal use. Eller
argued that under Wilson's interpretation of statute it would be possible
to take a driving while impaired (DWI) arrest and charge the driver with
possessing a WMD because the car contains volatile chemicals and fluids and
is a "device" that emits a toxic substance (carbon monoxide) into the
atmosphere.

A WMD violation could also be charged for burning waste without the proper
burn permits. The fire would be an illegal act and the "device or process"
would emit dangerous substances.

The bottom line argued by defense counsel Thursday night was that the
combination of chemicals and solvents to create methamphetamine was not
intended to create a weapon and the WMD statute failed to give them notice
that "cooking meth" violated the statute.

Casey argued that any criminal statute must give notice of the acts that
will violate it. "If they read a copy of the statute while they cooked meth
they would not know they were violating it or creating a weapon," he said.

Wilson, in a written statement, has argued, "The by-products of the
production of methamphetamine are toxic and lethal and include such agents
as phosphine gas, hydrophoric acid and iodized crystals."

Wilson said , "It is our hope that this will serve as a deterrent to future
illegal manufacturing of methamphetamine in our district...and will remove
those individuals from society that pose, not only a threat to law
enforcement and firefighters, but to the community at large through the
release of toxic and hazardous chemicals into the environment."

Baker adjourned the hearing Thursday night until after press deadline this
morning. The continuation of the hearing and a decision, if any, will be
reported in the Monday edition of the Watauga Democrat.