Is Brittney Griner Really Guilty?

Yesterday, I wrote about U.S. drug-war hypocrisy in Russia, specifically referring to the case of Brittney Griner, the U.S. basketball star who was arrested in Russia for possession of a trace amount of hashish oil found in two vaping cartridges in her luggage. As I pointed out in yesterday’s article, U.S. officials and the mainstream press are demanding that Russia release Griner immediately even though they make no demand on federal and state officials to release the thousands of people incarcerated in federal and state prisons here in the United States for non-violent drug offenses. Equally important, they express no interest in ending drug-war tyranny here in the United States, even while lamenting it in Griner’s case in Russia.

One of the interesting aspects of the Griner case is that there is a good possibility that she didn’t realize that the vaping cartridges had trace amounts of hashish oil in them. Nonetheless, she pled guilty. Why would she do that?

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One possibility is that she figured that if she showed remorse, a Russian judge might show mercy on her and let her go with just a slap on the wrist. 

But another possibility is that she decided that if she put the Russian authorities to the time and expense of a trial and then was convicted, she’d pay the price in terms of a higher punishment than she would receive if she just pled guilty.

What lots of Americans fail to realize is that that is precisely how America’s judicial system works, both at federal and state levels. No judge will ever admit that publicly, but most every criminal-defense lawyer will tell you it’s true. Oh sure, the U.S. Constitution and state constitutions protect the right to a trial at which the government must convince a jury or a judge beyond a reasonable doubt that the accused is guilty. But the fact is that if a person avails himself of that right and loses, prosecutors will seek a higher sentence and many judges will mete out a higher sentence as a way to punish the person for exercising that right. It’s one of the dark little secrets of America’s criminal-justice system. 

I would like to share with you a personal legal experience that bears a similarity to the Griner case, which I hope you find interesting. 

My father was a criminal and civil trial attorney in my hometown of Laredo, Texas, which is located on the U.S.-Mexico border. When I was growing up, I would work in his office and he’d oftentimes take me with him to interview witnesses in preparation for going to trial and then later take me to the courtroom to watch the trial.

One time, an enlisted man who was stationed at Laredo Air Force Base retained my father to represent him at a court martial. The man was charged with possession of marijuana on the base, which, needless to say, was illegal. 

It’s worth pointing out that this was in the 1960s, which gives you a good idea of how long U.S. officials have been waging their beloved war on drugs and destroying countless lives in the process.

In the military, the accused had the right to receive free representation from a JAG military officer, who was an attorney. The military legal system was somewhat strange because the team of JAG officers would rotate between being prosecutors and defense attorneys. The enlisted man didn’t trust them to represent him, which is one reason he retained my father to represent him.

Here were the facts of the case: One night, the enlisted man went into Nuevo Laredo, which was just across the Rio Grande from Laredo. He got drunk and purchased a vial of marijuana, which he brought back to barracks at the base. The next morning, he realized what he had done, panicked, emptied the marijuana into the toilet, and flushed it down the toilet.

One of his roommates was a loyal, devoted, patriotic snitch who felt that it was his moral duty to report the matter to their superior officers. A search was conducted. The military authorities found trace amounts of marijuana in the vial and charged the man with illegal possession of marijuana. 

I don’t know what the punishment was at that time for such an offense, but my hunch is that it was a high punishment. That probably was another reason that the man decided to go outside the JAG system and retain a civilian attorney.

I think I was in junior high school at that time. I accompanied my dad to the military base, where he interviewed various people about the case. 

Just before trial, my father met with the JAG officer who was prosecuting the case. My dad was in his mid-40s and the JAG officer was probably in his late 20s. I was standing there during that meeting. My father asked the prosecutor about the possibility of a plea bargain. The prosecutor arrogantly responded, “You have not been cooperative with me at all during pretrial matters and, therefore, no, I’m not willing to offer your client a plea bargain.” My eyes bulged out of my head when my father responded to him in a rather direct way: “Let me tell you something, you little arrogant son of a b. I don’t cooperate with you or any other prosecutor. I just represent my client. I will see you in court.”

In the military, there were no jury trials. The trial was covered by the Uniform Code of Military Justice, which provided for a military tribunal that decided whether the accused was guilty or not. My vague recollection was that it consisted of three judges who I think were all military officers although it’s possible that one of them was an enlisted man.

The prosecutor put on his case. The defendant recited what happened. The facts were not really in dispute.

During the summations to the tribunal, my father argued as follows: “Under the oath you have taken as military judges, you cannot convict my client for illegally importing marijuana into the United States because that’s not what he’s charged with. You also cannot convict him for possessing marijuana in the vial before he flushed it down the toilet because he’s also not charged with that. The only offense he is charged with is illegally possessing the trace amount of marijuana in the vial after he flushed the marijuana down the toilet. However, to convict him of that offense, you must find beyond a reasonable doubt that he knowingly committed this offense. Since my client clearly intended to flush all the marijuana down the toilet, he had no idea that the vial still contained trace amounts of marijuana and, thus, he had no intention of illegally possessing the marijuana that he is charged with possessing.”

The tribunal adjourned to deliberate. Upon returning to the courtroom, it announced its verdict: Not guilty.