One year after the first Smokedown Prohibition event was held, its founder and a principal organizer, Richard Tamaccio, known as N.A. Poe and referred to hereafter as “Poe,” was sentenced by a federal judge to pay around $775 plus a $30 special assessment, and serve one year on probation, for the class B misdemeanors of interference with agency function, disorderly conduct, and possession of a controlled substance. Poe’s case has been in pendance since the fifth Smokedown demonstration at Independence Mall, the first of the joint Panic Hour/PhillyNORML events in which authorities took action against those in attendance who at 4:20 PM lit and smoked marijuana at the 1st Amendment monument as an act of civil disobedience protesting the Drug War.
The seven month case against Poe, which began with a 5-day incarceration in federal detention along with Adam Kokesh, has played-out as a satiric duel between The Establishment and The Rebels, with Park Authorities and the US Attorney’s Office versus the Panic Hour Facebook page, and with Richard Goldberg, prosecutor, worrying the court to death with screen captures of posts on the group’s timeline – like images of the defendant’s lizard, captioned as if saying “Fuck the Police,” which was shown on a projector during the sentencing hearing.
More than half of the exhibits submitted into evidence by the government were screen captures of Facebook posts or recordings of videos posted to Youtube. In his cross-examination of the defendant, Mr. Goldberg grilled the defendant extensively regarding administrators of those pages as well as names of other organizers.
The case has been covered in the Philadelphia press, and the sentencing had enough interest for both the Daily News and Philly Weekly to publish write-ups. Both included a take on the defendant’s duds; LoBasso for Philly Weekly receded Poe’s hairline prematurely with “He showed up freshly-shaven, looking a lot like Fredo in The Godfather Part II,” which is at least more fun than the Daily News’ clinical “Tamaccio a thin man dressed in a white button-down shirt, gray slacks and a tie with a small image of a marijuana leaf on it, was clean-shaven yesterday” in “Confrontational pot smoker gets a year probation,” by Julie Shaw (it also included a laundry list of the government’s assertions of Poe’s lesser points).
As with the local media, Mr. Goldberg clearly took special note and indeed exception to Poe’s courtroom appearance, stating outright that his shirt-and-tie attire and clean-shaven chin were the churched-up disguise of a “phony,” as the real Poe that was seen at Smokedown was “a different person.” He attempted to characterize what had become a large law enforcement presence conducting aggressive arrests at the site as an unavoidable result of the defendant’s actions. To support asking Judge Perkins to sentence Poe to three years of probation with extensive additional restrictions on his freedom of expression and association, including a condition that would have made sleeping in his current residence a violation of his probation, Poe was depicted as a wanton criminal who flaunted his disrespect for the law, and who with his comrades also misunderstood it. The prosecutor repeated several times that the case was “not about legalizing marijuana,” but about uniform enforcement of federal statutes. In asking the judge to impose such relatively harsh penalties for such a minor, technically first-time offender he was portrayed as having incited unsafe and illegal conduct.
The dirty trick, where Poe got screwed, was not in being intercepted and charged when observed smoking pot on federal property. Poe was not arrested for smoking pot, he was arrested for being among the most visible organizers of a protest where many smoked pot (he was only charged with possession post-hoc as part of his plea agreement). That is, he was targeted for tactical arrest, along with Adam Kokesh who was also speaking at the event, which in terms of law enforcement operations is a fairly routine method of crowd control, sometimes referred to “as cutting the head off.”
When he was arrested May 18, Poe was approached from behind and physically apprehended by multiple officers, who dragged him several dozen feet before tackling him to the ground (the Declaration was on scene and recorded some of the arrest). He was then dragged backwards to a holding area before being taken to the federal detention facility, where he was unable to communicate with anyone outside the facility, and his family and friends were unable to obtain information regarding his status until he appeared in court the following Monday. There he was charged with no drug crimes, but with felony assault along with other misdemeanors.
What happened May 18 involved “confrontation” at a liberal best on the part of Poe, who, even had he wanted to swap blows with the Park Service, was only in a position to wobble under his own power for around 5% of the few minute duration of his arrest. As part of the overall effect for crowd control purposes, and as sometimes can simply occur with officers that have less experience conducting arrests, it’s not unheard of and certainly permitted to get your point across by taking someone down “hard.” Being subdued, sat-on by several grown men, put in pressure holds, and having your wrists clamped tightly together in cuffs/sliced with zip ties is traumatic and deliberately very painful, and can exact cooperation from aggressive subjects. It is a very serious matter to treat anyone this way, and it is more serious still to persist in causing injury by attaching enhanced legal consequences to a tactical, punitive arrest.
The arrest, charge for assault, the short jailing, and subsequent dismissal of assault charges for inflated but less damning counts, which the defendant is expected to plead guilty to (the federal conviction rate is intimidating), are part of a clear formula for prosecutor success rates in convicting non-violent offenders.
A vague assertion that Poe’s foot landed on the pant leg of a Ranger and a reported shoulder injury to a Ranger during the “scuffle” in particular got the judge’s attention, and can all be immediately rebutted as out of Poe’s control, and easily, with a cursory review of the many videos of the arrest online. The confrontation was generated by the Rangers, who for four months had not been compelled to act out of blind duty to the Law and issue a single citation for pot possession at the demonstrations, until a side-show fundamentalist appeared at the Mall in April, berating protesters, Rangers, and Liberty Bell-goers alike about the evils of marijuana and other sodomy. Video of his preaching to the Rangers to “do their jobs and enforce the law” was widely published and viewed online. The very next month’s Smokedown Poe was arrested, and law enforcement presence was increased for the 6th installment, which a senior Philadelphia Police Officer on site told the Declaration was a direct result of pressure brought on by the media attention – which in addition to the preacher’s antics was also drawn by the adversarial figure of Mr. Kokesh.
US Attorney Goldberg attempted to use the prosecution of Poe to “cut the head off” of a political protest, and while Poe is certainly not some working class hero or “innocent” in any way that can be said with a straight face, he was demonstrably not guilty as charged. Besides Kokesh, whose charges were dismissed, and Emily Yates, Poe is the sole Smokedown defendant, among dozens caught smoking pot, who was incarcerated and put through lengthy and restrictive legal limitations, rather than simply detained, released on scene, and allowed to pay a fine.
It is in fact the US Attorney who appears “phony” when he presents a case with full vigor which stemmed from constructive provocation by law enforcement, or when he suggests that because a defendant is wearing a tie and has cleaned-up for court that he is somehow being deceptive (don’t judges scold people for not dressing up for court?). In the video of the arrest, Poe has a beard and is wearing a yellow shirt and jeans. He is at a pot protest at 4 in the afternoon in late spring. It’s not as if he typically walks the city in a big pot-leaf suit carrying a fog machine. And it is of course most mendacious to stand in open court and not only advocate for stiff sentencing, but attempt to assassinate the witnesses’ character on the stand in order to see him punished for an unfortunate encounter which the Park Service and Department of Homeland Security forced into being.
It was fully expected that the Rangers at the Mall would at some point enforce marijuana law, and the desire on the part of authorities to control large gatherings is understandable. However, arresting and prosecuting an offender of the law on inflated charges as a constructive, tactical operation to gain control of a situation which they allowed to escalate, at the expense of any measure of an individual’s personal liberty, cannot be sanctioned. The overwhelmingly standard law enforcement response to the Class B Misdemeanor is a $175.00 fine. Poe and his comrades were not asking Rangers or the US attorney to change any law, but while they were using civil disobedience to influence the Pennsylvania and US governments to do so, they would prefer only being prosecuted for crimes they have committed.
In his closing address to the court on sentencing, Mr. Goldberg submitted that the defendant was either a “self-promoter” or a “misguided zealot,” whose invocation of the 1st Amendment in his defense “absurd.” Apparently unfamiliar with civil disobedience, the prosecutor also argued that is was somehow incompatible to claim the protection of one law while in defiance of another. On its face the assertion has neither precedent nor sense, and had a particular desperate ring from the mouth a federal prosecutor describing a case wherein one but not both of the two laws is in the US Constitution (a body of laws frequently cited to object to and negate other laws).
The prosecutor asked the court to ban Poe from a wide range of legal activities and associations, one which would have made sleeping in his own home a violation of his probation, and in scope the government’s requested sentence would have required Poe to cut ties with a majority of his familiars.
Judge Perkins denied all of the conditions requested which did not involve the prohibition of illegal acts or boilerplate strictures of probation, limiting his orders to a specific ban on participating in the Smokedown events at Independence Mall, saying:
I know that he has probably been a thorn in the side of law enforcement as well as the US Attorney’s office for some time, but that’s not a criminal act in itself, that’s something you have to deal with…
The final Smokedown is this weekend, and Poe remains unable to attend. He actually gained a few freedoms from the conviction, as he can now visit the Liberty Bell as long as it’s not to get high. He says he’s ready to move on from Smokedown, and acknowledges that interest in the event has waned since it reached a summertime peak of hundreds of blazing activists. At this point Mr. Goldberg ought to leave our story, but you should not expect to have seen the last of him, as he continues to work like so many prosecutors are encouraged to do to generate maximum convictions and high guilty plea ratios by intimidating defendants with irrationally severe alternatives.
Full disclosure: Poe is a good friend of the writer of this article, and thus the reporting might be biased in its focusing on the actions of the US Attorney. That said, the author is firm in his assurance that though perhaps not an “objective” presentation, the above is a factual account which contains elements ignored in publication that are important to the public. Mr. Goldberg invoked the will of the “People” twice to the court, once to state that it was the decision of these People to criminalize marijuana, a dubious assertion regarding an initiative of President Richard Nixon’s administration, and an outright erroneous claim in terms of popular opinion, according to widely reported polling. The journalist would be both professionally remiss as well as a poor friend if he did present the public with the behavior of an official claiming its license. The full audio of the hearing can be downloaded here.
The author, and the public, may even agree that the defendant deserves to pay his ticket for pot, but if the US Attorney wishes to sully his office with crusades against earnest protesters, he should just pull his pants all the way down and attempt a mass indictment under conspiracy statutes.