Bad Question, Deceptive Video?

 Posted on March 21, 2012 in Uncategorized

Mike Anderson: Is a small amount of cocaine, heroin, of methamphetamine against-is possession of it against the law, as written in Austin?

Pat Lykos: No.

Murray Newman, who published the snippet with no context, says the answer "seems to be in direct contrast to Sec. 481.115 under the Controlled Substances Act."

It is not.

It's not the best answer, perhaps, but it's not wrong, and it may, depending on what got left out of Newman's abruptly ending clip, be the beginning of an entirely correct answer.

What it clearly is, is a terrible question.

Does Section 481.115 of the Texas Health and Safety Code say that possession of any amount of cocaine is against the law? It does not. Is possession of a trace amount of cocaine against the law? Not unless you knowingly possess it.

"Possession" means actual care, custody, control, or management. One might possess a trace amount of cocaine-exercise control over it-without knowing it's there. (One might possess a quite large amount of cocaine without knowing it's there. This is often what the battle is over in a drug case.)

"No" by itself would be a smart-ass lawyerly answer: if an offense has three elements, two elements do not make an offense.

A less smart-ass lawyerly answer would be: it depends.

I don't know that anyone has ever accused Pat Lykos of being lawyerly. What she is, is a consummate politician.

We don't know what Pat Lykos said after "No." There may be nothing, but that's unlike her. My hunch is that she said something more, but that we didn't get to see it because whatever she said wouldn't advance Newman's agenda: to get Mike Anderson elected.

Here's my first-order approximation of the politicianly but correct answer that Lykos might have given:

No, unless the possession is knowing. In a case involving traces of drugs-crack pipe cases, for example-the defendant's knowledge is by no means a foregone conclusion. Now, Mike, you may think that Harris County labs should be wasting their time scraping residue out of a glass tube, and you may think that prosecutors should be wasting their time trying to prove that a crack addict knew that the residue was there, but I disagree.

Lykos can't protect herself against her words being taken out of context. But if Anderson is going to go back to being a prosecutor without a black robe, he could sure stand to learn to ask a question.