"Suppose I had someone in my car and they had methamphetamine," asked Arizona Supreme Court Justice Andrew Hurwitz, cocking his head and fixing the anxious prosecutor with a quizzical look, "and a few, unusable crystals fell on my sleeve. If the police stopped me and found those crystals, could I be charged on that?"
Prosecutor R. M. Howe paused to consider the question, his lawyer brain racing to frame an answer that wouldn't somehow get Enis John Cheramie out of jail years sooner than he might.
"The critical fact being that you knew it was meth," said the attorney carefully. "The jury would have to make that finding."
The answer did not satisfy Justice Hurwitz, sitting on the five-judge panel hearing cases for the first time ever in Payson. On the face of it, the question before the Court was whether prosecutors denied Cheramie a fair trial when at trial's end they changed the charges he faced from transporting dangerous drugs for sale to merely possessing said drugs. But Hurwitz clearly had his mind fixed mostly on how a ruling in Cheramie's case would affect thousands of past and future drug cases.
"I take it your position is that you cannot transport a forbidden substance without possessing it," continued Hurwitz. "But suppose a friend comes up and says ‘I have a useable quantity of crystal meth -- can you give me a ride to my mother's house?' Is it possible for me to transport that drug without exercising control?"
"If you knew it was meth ..." began Howe.
"I did," interjected Hurwitz, to simplify the legal issue.
"... and let him into your car ..."
"I did," repeated the justice, who before his appointment to the state's highest court served as chief of staff for two governors.
"...then you would be guilty of knowingly controlling the movement of the drug," said Howe, wary of a trap laid by one of the top legal minds in the state.
That thrust and parry of sharp-edged hypotheticals ran through the historic session of the state Supreme Court. The hearing focused mostly on a few of the legal puzzles posed by the case at hand.
It revealed the fundamental nature of the law -- the endless effort to generalize from the very peculiar facts of one case legal principles that can yield justice for people in vastly different circumstances.
Which is good -- because there's no denying that Enis John Cheramie had some peculiar circumstances. Tucson police stopped him for some misdemeanor warrants and searched his car. They found a spray can with a false bottom in which they discovered 42 grams (about two teaspoons) of methamphetamine in little plastic bags, which Cheramie insisted he didn't know was there. Prosecutors charged him with transportation of a dangerous drug with intent to sell. The prosecution planned to call a police expert to testify that the drugs were packaged in a way consistent with selling them, but the expert somehow missed the trial.
So prosecutors instead asked the judge to change the charge to simple possession, on the assumption that you have to possess a drug to sell it so simple possession was a "lesser included charge."
The trial judge agreed -- and the jury convicted Cheramie on all counts.
His appeal claimed trial court errors, including the decision to shuffle charges at the end of the testimony. A divided appeals court agreed with his contention that the prosecutors crossed the line and so prevented Cheramie from mounting a proper defense.
So now in reviewing the decision of the appeals court, the Supreme Court justices had to puzzle out two legal questions.
First: Can you ever transport a drug without legally "possessing" it? If so, prosecutors couldn't say that transporting and possessing were the same legally. In that case, they would have had to prove that Cheramie knowingly possessed and legally controlled the drug in the can.
Second: Should prosecutors have been required to prove that Cheramie had a "useable quantity" of the drug, once prosecutors changed the charge to possession?
That question sent the case bushwhacking into a thicket of legal issues, since other court cases had held that trace amounts of a drug (the resin in a pipe or traces of heroin on a cotton swab) didn't qualify as "possessing" a "useable amount."
The justices all barraged the lawyers on both sides with questions testing the boundaries of both of those questions.
The questions focused on the key difference between simple possession and possession with intent to sell. In cases of simple possession, prosecutors had to prove there was enough drug to use. But in transportation cases, prosecutors had to prove there was enough drug to sell. As a result, the legal definition of "possession" differs. And that difference, could determine whether simple possession was the elusive "lesser included offense."
At one point as the attorneys argued that the Court could always make a ruling that decided certain key points, Chief Justice Ruth McGregor raised a sharp question. "Can the Court do that? Can we add an element to a criminal statute?"
At the conclusion of the hearing, Chief Justice McGregor took the matter under advisement, promising a ruling within three months.