Pubdate: Fri, 12 Dec 2003 Source: Watauga Democrat (NC) Copyright: 2003 Appalachian Technologies, Inc. Contact: http://www.wataugademocrat.com/ Details: http://www.mapinc.org/media/2322 Author: John O'Dowd JUDGE OFFICIALLY DISMISSES METH LAB WMD CHARGES Superior Court Judge James Baker began his written order dismissing charges against 11 defendants with a quote: "It is emphatically the province and duty of the judicial department to say what the law is." The quote comes from a 200-year old U.S. Supreme Court case defining the authority and the duty of the newly established court. Whether or not Baker's dismissal order will be "what the law is" will be decided by N.C. appellate courts. Baker's order, signed Nov. 26, dismissed 15 charges of knowingly storing, manufacturing or possessing a weapon of mass destruction (WMD). The WMD charges against Frederick C. Alderson, Tamberlyn W. Alderson, Christina M. Cox, Gary Joseph Cox, Christopher Lee Greene, Michael F. Laird, Martin D. Miller, Pamela L. Osborne, Jessi B. Rash, Frankie Wayne Taylor and Richard Len Taylor, Sr. were linked to allegations that the charged individuals were in possession of the precursor chemicals for the manufacture of methamphetamine or had been involved in the manufacturing of methamphetamine. District Attorney Jerry Wilson argued that the manufacturing process created gasses and chemical compounds that fit clearly within the state's WMD statute for chemical weapons and charged the defendants with its violation. Baker said, during the hearing on Nov. 6 and 7, that Wilson appeared to be reacting to a frustration with the inadequate punishments in the controlled substances statutes. Baker said that, while understandable, it was up to the General Assembly to change the statutes and, if desired, increase the punishments for the manufacturing of methamphetamine. Baker said in his order, "The Court takes judicial notice of the fact that the manufacture of methamphetamine by the use of 'meth labs' as described by the state involves the use of dangerous chemical compounds and/or gases in the manufacturing process. These compounds or gases can pose a significant health risk, and can be deadly if ingested or inhaled. They can even be extremely harmful with mere skin contact. These facts are undisputed." A court takes judicial notice when a fact or issue is so well documented or well known as to not need the production of evidence to prove the fact. Baker took judicial notice of the fact that meth production and meth labs produced toxic, volatile and potentially deadly gasses and compounds. With this fact not in issue, why did he rule that the chemical compounds created by the production did not fit under the WMD statute as "manufacture, storage or possession" of a "chemical" weapon of mass destruction? Baker found: . The WMD statues were passed as a reaction to the terrorist attacks of Sept. 11, 2001. In fact, the statutes were passed on Nov. 27, 2001. The statutes were passed to combat terrorism. . There is no mention in the WMD statutes of "controlled substances" or the manufacture of "controlled substances (drugs)." . There is no mention in the legislative history of the statutes that the drafters of the statutes or the General Assembly intended for the statutes to be used to control the manufacture of drugs. . The WMD statutes do not contain an adequate definition of what is or is not a "weapon." Baker found a different statute dealing with "weapons of mass death and destruction." That statute defined weapons as: bombs, grenades, rockets, missiles and mines. Baker said that the definition in the similar statute, "just as importantly includes a definition of what is not a weapon of mass death and destruction: 'The term - weapon of mass death and destruction - does not include any device which is neither designed nor redesigned for use as a weapon...'" Baker concluded: . The WMD statutes were not enacted to control or punish the manufacture of "controlled substances (drugs) for illegal bodily use." . A specific statute deals with the manufacture of methamphetamine and other controlled substances and that statute must be used. . Criminal statutes must reasonably place the public on notice that what they are doing violates that statute. No person running a "meth lab" is placed on notice that they are manufacturing a WMD. Because of this concern Baker ruled that sections of the WMD statute were unconstitutionally vague. During the hearing, defense counsel Joe Segar argued that, while the WMD 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. Segar pointed out that a Christmas tree farmer is required to have a license and certificate to spray pesticides and herbicides. 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? It was the inability to clearly define the treatment of otherwise innocent acts that concerned Baker. . The WMD statute is "overly broad as applied" because it lacks any requirement that the accused "intends" to manufacture a weapon. Without that "intent" element it "allows the statute to be applied to innumerable activities having nothing to do with the intended purpose of the statute." District Attorney Jerry Wilson announced his intention to appeal Baker's decision and followed his oral notice with a written notice of intent to appeal. Following the hearing, Wilson 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." 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. North Carolina Attorney General Roy Cooper has 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." - --- MAP posted-by: Beth Wehrman