Douglas Capitulates
On Drug Directive
By Sandy Vondrasek

One month after ordering state law enforcement officials not to send major marijuana cases to Windsor County State’s Atty. Robert Sand, Gov. Jim Douglas on Tuesday rescinded his directive.

In a statement issued Tuesday afternoon, Douglas said he decided to reverse the order after receiving an email from Sand, in which the state’s attorney clarified his position on marijuana prosecutions and acknowledged that his "earlier statements may have created the impression of a ‘blanket policy.’"

Douglas issued the controversial directive in early November, shortly after state media reported that Sand had sent a 61-year-old Woodstock woman—charged with possessing 36 marijuana plants and more than two pounds of dried marijuana—to court diversion, instead of to criminal court.

The case had some colorful aspects and was prominently reported: The accused, Martha Davis, was a lawyer, a part-time judge, and the marijuana was discovered on her property by Fish & Wildlife wardens, after Davis called them about a dead deer on her property.

Coverage of the case escalated after Gov. Douglas issued the directive, ordering state police and game wardens to bypass Sand, and send their major marijuana cases to the Vermont attorney general or the U.S. attorney general.

In interviews at the time, Douglas accused Sand of having a "one-size-fits-all" policy of sending first-time pot offenders to diversion. Sand has been a vocal critic of the state’s drug laws for years, and Douglas also suggested, publicly, that Sand was letting his views unduly influence his prosecutions. Douglas also raised the issue that the accused in this case might be getting preferential treatment, because she was a lawyer.

Douglas told The Herald that this last issue, judging by feedback he was getting, was the issue that most concerned the public.

However, Douglas’s directive was widely criticized by the legal community, including other state’s attorneys and a former judge. Douglas’s order to bypass an elected official—Sand is in his 10^th year as Windsor County’s elected prosecutor—was setting a bad precedent, and was possibly not legal, they said.

Democrats in Windsor County also accused Douglas, a Republican, with playing partisan politics: Sand is a Democrat.

The partisan issue ballooned after the Valley News reported last Thursday that Orange County State’s Atty. Will Porter, a Republican, had himself sent a major marijuana case to diversion. The Orange County case—involving a 45-year-old Randolph man, North Johnson, who allegedly had 110 marijuana plants on his property—went to diversion just days before the high-profile Davis case in Windsor County.

Agree To Disagree?

In their statements Tuesday, both Douglas and Sand indicated they welcomed a resolution to the stand-off. Both expressed a desire to focus on the future.

However, some ill will clearly survives, and both the governor and the state’s attorney, in comments Tuesday, took the opportunity to fire a little pepper shot at one another.

Douglas, in his written statement, noted that Sand had assured him, in his email, that he "will not have a one-size-fits-all practice or policy for Windsor County."

"Will not?"

"We do not, never had, and will never have a one-size-fits-all approach," Sand retorted in an interview with The Herald.

"He’s given his thoughts; I guess I’ve given mine," was Gov. Douglas’s response in a Tuesday evening phone interview.

Sand said that Douglas’s office never contacted him personally before issuing the early November directive: "I learned about the directive from a newspaper reporter."

On Vermont Public Radio last week, Douglas said he formed an impression that Sand had a blanket policy from a transcript of a TV interview with Sand.

"I can understand," Sand said this week, "why anyone who would rely on a news script as an accurate representation of what a person said would form the conclusion that we had a blanket policy."

"For weeks, there was no rebuttal or attempt to deny it," Douglas pointed out this week. "I think it was a fair assumption."

Sand did take responsibility for that one, noting that after the initial TV interview, he "went into black-out mode" in order to prepare for a murder trial, and, "notwithstanding my wife’s prodding, stayed in black out."

Probably he should have responded sooner, Sand agreed: "To the extent I said anything that created an impression, I am certainly sorry."

However, Sand said he did "reach out" to the governor’s office, via email several times, soon after Douglas issued his directive.

In one of those emails, Sand advised the governor that he knew of another case involving a substantial amount of marijuana that went to diversion. That was the Orange County case it turns out, but Sand didn’t identify the case.

"I didn’t name names—it was not an outing—but I did indicate there was a substantial amount in another county," Sand said.

Gov. Douglas told The Herald Tuesday night he doesn’t remember how he learned that that case was in Orange County.

Douglas said he has not talked with Orange County State’s Atty. Will Porter about the case—"I don’t need to"—and that he was not surprised to learn of another major marijuana case going to diversion.

State’s Atty. Porter did not return calls from The Herald.

The situation in Windsor County was different, the governor said.

"The key for me was that there was no other prosecuting office that had a blanket policy for all first-time offenders. And no other prosecutors have been such outspoken advocates of legalizing illicit drugs," Douglas said.

Positive Outcomes

Sand, on Tuesday, pointed to two positive results of the past month’s events.

First, he said, was an "excellent" meeting he recently had with the police chiefs in Windsor County. (Douglas’s earlier directive applied only to state-employed law enforcement officers, but the chiefs of several towns in the county had expressed concerns about sending the Davis case to diversion.)

The meeting with chiefs has resulted in a commitment from Sand’s office not to divert any felony drug cases without input from the arresting officer, Sand said. More broadly, he said, he and his deputy attorneys are all making more efforts to seek input from law enforcement in other cases, as well.

Sand said the other "prize" is that it now appears likely that the legislature will take up review of the state’s drug laws in the next session.

"It’s a controversial topic, but we should not be afraid to talk about controversial topics," Sand added.

Douglas emphasized in his comments this week that he intends to keep his focus on "the serious drug problem that Vermont is confronting." A broad range of actions—prevention, treatment, and law enforcement—is needed, he indicated.

"It’s certainly appropriate to consider penalties on the book for offenses from time to time," said Douglas, noting that this would be something for the legislature to take up.

Peter Freyne, political commentator for the Burlington-based weekly, "Seven Days," reported several weeks ago that Douglas, as a 20-something freshman legislator representing Middlebury in the 1970s, voted in favor of changing the state’s marijuana laws.

Douglas said Tuesday night that, as he recalls, he voted in favor of "reducing the penalty for possession of a small amount" of marijuana.

"I think that’s certainly a fair conversation to have," he said.