“Tobacco defense” gains popularity
A new defence is gaining popularity among the inmates of the Drumheller Institution, forcing prosecutors to jump through one more hoop to convict those charged with smuggling drugs into the penitentiary.
Defendants charged with attempting to smuggle drugs into the prison, have claimed they were under the impression the contraband they were attempting to bring in was tobacco.
The “tobacco defense,” as it is becoming known, has had some success so far.
Federal Crown prosecutor Colin Kloot sees it as a growing issue.
“I think it’s problematic. We’ve just had two trials where the tobacco defense arose,” said Kloot. “In the first case, the inmate raised the defence that he had been told to pick up the package and that it was tobacco. He got off because he raised a reasonable doubt, notwithstanding we said he was willfully blind.”
On April 11, 2010, Ashley Yardley retrieved a package on the Institution perimeter. He was immediately caught and claimed he was unaware the package contained drugs. A witness for the defense, a fellow inmate, testified he told the defendant the package contained tobacco.
Yardley was aquitted. The inmate who asked Yardley to retrieve the packaged was charged and subsequently found guilty.
In the second case, in which the charged inmate was acquitted on April 12, Donald Holden was alleged to have attempted to bring in two packages containing cannabis resin after returning from a meeting in town.
Upon arriving at the Institution, he was informed he would be searched. Afterwards, two staff members saw him throw two packages on the roof of the Warden’s office. Packages were retrieved by staff on the grounds near the office.
“He testified he was told he was only picking up tobacco and that he had only one package and a Bic lighter,” said Kloot. “He had the person who told him to get the package testify, who said, as far as he knew it was just tobacco. That’s just ridiculous. No one asks for tobacco and gets drugs instead.”
Judge Judith Shriar, who presided over the trial, felt there was sufficient doubt if Holden was in possession of the drugs in question, due to the inconsistencies between the staff members’ reports of where the objects landed and where they were found.
In February of last year, Justin Neuman was found not guilty of smuggling drugs into the Institution using the tobacco defense.
Tobacco is prohibited in the Institution, but not an illegal substance outside.
“Because tobacco is contraband there, but not an illegal substance, they can’t be charged externally for having it,” said Kloot.
The defense adds another step for prosecutors and Kloot expects to see more inmates charged with attempting to smuggle drugs use the tobacco defense, given the success rate of it so far.
“We then have to prove, beyond a reasonable doubt, they knew, ought to have known, or are absolutely lying. It adds a new dimension to what we have to prove. Word goes around the pen very quickly. The first guy was successful and so was the second,” said Kloot. “I’m expecting a lot more of this to come forward.”
