Marijuana Policy Project

WHITE RIVER JUNCTION — Gov. James Douglas' decision to ask state law enforcement agencies to bypass Windsor County State's Attorney Robert Sand with first-time marijuana cases has taken Sand by surprise.

Douglas defended his decision Thursday, saying it was one of fairness and equality.

"We can't have a situation in Vermont where in 13 other of our counties, possession is treated as the felony it is, and possibly result in jail time, and in another county someone gets a 'get out of jail free' card," the governor said.

Douglas said Thursday he directed the Vermont State Police, the Vermont Department of Fish and Wildlife and the Vermont Department of Motor Vehicles to send their first-time, "significant" marijuana cases to the attorney general or federal prosecutors.

Late last week, Sand said he sent what was a felony marijuana possession and cultivation case against a Windsor lawyer to court diversion. He first reduced the charge to a misdemeanor.

The decision allows Martha Davis, 61, a part-time family court judge, to clear her record if she successfully completes the diversion program. Vermont law enforcement officials allegedly found 32 "small" plants and 2 1/2 pounds of marijuana at her Windsor home in October.

"This is an especially bad message to send to our kids," Douglas said, noting this week's results of the Vermont Youth Risk Behavior Survey showed that binge drinking and marijuana use in Vermont is higher than the national average.

"Vermonters have a right not to perceive a double standard. The law has to be applied uniformly," Douglas said.

"The law enforcement community is understandably concerned about this," he said.

Sand has been at the center of the debate about Vermont's drug laws since last November, when he said Vermont's law enforcement priorities were seriously flawed. The Davis case re-ignited the debate and criticism.

On Thursday, he said he was taken aback by the governor's direct involvement in Windsor County law enforcement.

"The manner in which it happened, I am not happy about. It would have been nice to have received a phone call in advance," Sand said.

"I wrestled a long time with that case and I have wrestled a long time since the firestorm," he said.

Sand said that while Davis is in diversion, her case remains pending.

He said last week that Davis was no threat to the public, had a clean record and there was no evidence of trafficking or distribution despite the relatively large quantity of marijuana allegedly found at her home.

"Our system of justice is predicated on discretion," he said. If prosecutors always have to worry about their decisions being second guessed by the governor, "ultimately, I am not sure that is a good thing."

State's attorneys are elected independently by each county every four years.

"I need to worry about the things I have control over and not worry about those things I don't control," he said.

While Douglas' directive doesn't have the same effect on the Windsor County police departments, at least one local department said it was going to follow suit.

Springfield Police Chief Douglas Johnston said the eight police chiefs in the county want to meet with Sand to discuss his prosecution of first-time marijuana offenders. Until that meeting can be arranged, Springfield will send its felony marijuana cases to the attorney general's office.

"We're going with the governor," the chief said.

Johnston said there were at least two felony marijuana cases that his department was working on that would end up with the attorney general's office instead.

Johnston said Sand was preparing for a murder trial to begin in a few weeks and he couldn't meet with the chiefs until early December.

Hartford Police Chief Glenn Cutting, head of the largest police department in the county, said he was taking a wait-and-see approach, pending the meeting with Sand.

Cutting said he had a long talk with Sand on Thursday about the controversy and was convinced he was a good prosecutor.

"But I told him I thought Davis got a walk," Cutting said.

"She certainly knows the law. Certain jobs like attorney, judge, politician are held to a higher standard. Of all people, she knows better," Cutting said.

Cutting said he told Sand he needed to separate his personal agenda from his responsibilities as state's attorney, something, Sand said, he is already doing.

"One of the things I will reflect on is whether personal philosophy unduly influenced where this case went. I don't think it did," he said.

Meanwhile, Attorney General William Sorrell, whose office will probably pick up most of the Windsor County cases, said the issue was one of fairness and equality of prosecution in criticizing Sand's decision.

Two people growing marijuana but living a couple of miles apart but in different counties could face completely different penalties, he said.

Sand said last week he sends almost all first-time marijuana offenders to court diversion. He said he struggled with the Davis case because of the large amount of marijuana found at her home.

Fish and Wildlife wardens, who were investigating Davis' report of a dead deer on her Windsor property, smelled marijuana and returned with a search warrant.

Sorrell said he wouldn't step in and prosecute Davis, even though he had the legal right to do so.

Sorrell said Sand had made a deal with Davis to send her case to the diversion program, and it wasn't an outright dismissal of the case.

"I believe in prosecutorial discretion. To have a cookie-cutter sameness is not necessarily just," he said. "If this was an ounce of pot, people wouldn't be talking about that today. People also perceive that she's a lawyer, and there's a double standard here."

Jason Gibbs, the governor's spokesman, said the office and the governor himself are receiving complaints from the public about the Davis case, with people claiming Davis, as a part-time family court judge and attorney, was getting favorable treatment.

"Joe Six-Pack doesn't think they'd get the same deal," Gibbs said.

Gibbs said Sand's claim that Davis' marijuana stash was just for her personal use didn't pass "the straight face" test.

He said 2 1/2 pounds, plus the 32 plants, had the potential capacity to produce a total of 17 pounds of pot.

"Seventeen pounds of marijuana is equivalent to 7,718 joints," he said, noting that the estimated street value was $68,000.

"That's one joint for every man, woman and child in the city of St. Albans," he said. Gibbs said the calculations were made for the governor by a Vermont law enforcement official.