Bad Question, Deceptive Video?

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.

3 responses to “Bad Question, Deceptive Video?”

  1. On small drug cases, I use a made up a motion based on Art. 38.41 and Bullcoming, and file it – it pisses eveyone off- but it gets lazy DA’a attention- I filed one in New Braunfels, and ended up talking to the DPS analyst, who told me there was not enough to weigh outside the bag- so the .09 he reported included at least .05 bag wt- I got a companion habitual charge dismissed and pled my hero- who had originally been charged with lopin the mule in his car in a field-to a reduced sentence- he was a predicate felon, lots of charges- and happy with not going to trial on the habitual indictment

  2. Just food for thought, Mark, but do you think that Anderson really anticipated that Lykos was going to say “no”? I’m just going out on a limb here, but I would imagine that he expected her to say “yes, of course” and then he would have followed up with questions about her policies on not filing trace cases. I think it was a foundation question.

    Kind of like asking your client to state his name and instead, he blurts out: “Fine, I did it.”

    • No, Murray, I don’t. That’s not what makes it a bad question. It’s a bad question because it implies ignorance of the law that I’m moderately sure Anderson doesn’t have.

      I think Lykos probably said something else after “no” that whoever sent you the video didn’t want us to see.

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