19 Dec Defending a Dream
There are few things quite as humbling as having your peers publish a story of yours. This article is pretty long, but it’s just as it appeared in The Warrior magazine. This article is also special due to the fact that Blake and I wrote it together. It’s the inside story of the Friendly Market trials.
DEFENDING A DREAM
Brecken Wagner and Blake Lynch
“The Friendly Market Four” stood up and said, ‘No’ when most probably would not have. They did this because they knew what they were doing was right, and they did this for everyone that has ever been bullied by government. They did it for all of us.”
Robert Cox spent his professional life as an investigator for a large credit bureau in the Atlanta area. After serving his employer for two decades he decided to return to what was always his home, Norman, Oklahoma. He set up his own civil investigation company and enjoyed success. With retirement approaching, Robert looked at the money he had put away in savings, and decided to start a new venture. To understand what he did next, you have to know Robert.
Robert has never had an enemy, let alone met one. He is a vegan, a feng shui enthusiast, a seeker, a believer of holistic healing, and an adamant follower of the singular Christian God. He greets you with a smile that is disarming and generous. He’s a relatively small man with a smooth bald crown encircled by an audience of white hair. He is pressed khaki pants and polo shirts. He doesn’t smoke, drink, cuss, or speak ill of the living or the dead; in short, Robert is not at all what one envisions when you hear the word “investigator.”
Robert had a dream. He wanted to open a storefront that reflected who he really was. To most people, he was the epitome of a local businessman. The store that would ultimately become The Friendly Market was a “chair back” of the Robert everyone else saw. Robert’s store sold books, tapestries, locally-made jewelry and furniture, art, oils, hemp clothing, and every other bohemian article the mind can imagine. Everything in that store was a part of Robert’s “mission” and this little store was his baby.
What could possibly go wrong, you ask?
Our firm’s relationship with Robert came about because The Friendly Market also sold glass pipes in a separate room inside the store. Before he made the decision to add glass pipes to his eclectic inventory, Robert did a detailed investigation. He met with city officials, he talked with past district attorneys, and he obtained a plain, unbiased reading of the law, all of which led him to believe glass pipes are legal in the State of Oklahoma.
There are many classic “head shops” throughout the metropolitan and rural areas of the State. Many of these shops have been a part of their communities for several decades, and they have sold glass pipes without ever encountering a problem. Things are different in Cleveland County, however. There sits an ambitious district attorney, Greg Mashburn. At the time this tale unfolds, Mashburn was applying to become the Assistant US Attorney for Oklahoma, and he set his sights on the glass pipes in The Friendly Market as a way to make a name for himself as being “tough on crime.”
The DA found an eager ally in a police detective named Rick Newell, a self-described “innovator.” Detective Newell had decided that glass pipes were drug paraphernalia, which meant stores selling the pipes could be raided, their owners charged with a crime, and their assets seized and ultimately forfeited. Newell began a series of raids on other stores like The Friendly Market, then met with Robert Cox and threatened to arrest him if he didn’t remove the pipes from his shelf. After that meeting, Robert Cox initially did just that.
Because he had done exhaustive research into the legality of the items he wanted to sell before he opened The Friendly Market, Robert was not willing to give up that easily. He went to every official in the City of Norman and Cleveland County to plead his case. One evening he appeared before the Norman City Council and laid out his case, begging them to take notice of the unfairness of his situation. At that meeting he caught the attention of the youngest member of the city council, Stephen Tyler Holman. The two struck up a friendship and Holman became the store manager of The Friendly Market.
Brecken: Because he was aware of a forfeiture case our office had handled for a store called The Funky Monkey, Robert hired Wagner and Lynch to come to his store and consult on the glass pipe issue. After our meeting, I gave him some advice, trained his employees, and helped him develop some policies and signage for the store. I told him that selling these glass pipes was legal under the law. Robert put them back on the shelves.
Around the 1st of December, 2015, The Friendly Market was swarmed by City, State, and Federal agents. They took the store’s business records, seized the cash from the drawers, and confiscated all of the merchandise from the smoking accessories room. The raid came as the result of hours of surveillance, several undercover buys, and hundreds of law enforcement man-hours. After the raid, Robert restocked the shelves with glass pipes, an act of defiance that may or may not have been encouraged by his counsel (It was definitely encouraged).
Three weeks later, after another extensive operation of surveillance and undercover buys, the agents swarmed the little store again. Once again, they confiscated the merchandise and cash.
The State charged Robert and Stephen with a felony for “obtaining proceeds of drug activity” and a dozen or so misdemeanor counts of possession of paraphernalia. At first they were the only persons charged with a crime, and the State quickly offered them a deal. It would dismiss the felony charge and give them a deferred sentence if they would plead guilty to the misdemeanor charges. Under the deal offered by the State, the cash taken from the store would have to be forfeited, they would have to agree to not sell pipes as a condition of their probation, and they would have to forfeit all of the confiscated merchandise without argument.
Both Robert and Stephen turned down the State’s offer. This was an incredibly bold move considering neither had ever been charged with a crime in their life and they were facing the prospect of prison time if convicted of a felony. Shortly after they rejected the offer, the State brought charges against Robert for the second raid. In addition, the State brought misdemeanor charges against two of The Friendly Market’s store clerks, Cody Franklin and James “Max” Walters.
The defendants had now become known as “The Friendly Market Four,” and attention to the case grew beyond the boundaries of the State of Oklahoma and gained a national following.
As a result of the national attention, our office was contacted by the DKT Liberty Project. The Liberty Project is a non-profit group that was founded to promote individual liberty against encroachment by all levels of government. The Liberty Project is committed to protecting privacy, guarding against government overreaching, and protecting the freedom of all citizens to engage in expression without government interference. DKT said the organization wanted to become involved in the defense of The Friendly Market Four. They didn’t want to send in other counsel or take over the case, they just wanted to fund the defense. You can imagine our delight, but there was also a healthy dose of skepticism which turned out to be completely unfounded. The Liberty Project funded the defense of every member of The Friendly Market Four, including attorney fees, expenses, and substantial expert fees. The defense of these cases was aided immeasurably by DKT’s generosity and commitment to this battle. You can read more about The Liberty Project at http://dktlibertyproject.org.
Brecken: Blake had gone to the Trial Lawyers College in 2015, and with his coaching me, we had used some TLC techniques in a case we tried together. After our success in that trial, and seeing the way these techniques changed my law partner’s performance in the courtroom, I applied to go myself in the summer of 2016. The preliminary hearing for The Friendly Market Four cases was held shortly before I took off for the beautiful State of Wyoming.
Blake and I prepared a scholarly legal argument as to why our clients could not and should not ever be found guilty of any crime. The arguments were filled with constitutional theory, statutory application, and legal nuance … all the things we lawyers love.
Unfortunately, we understood these arguments would never work in front of a jury, which gave us a huge problem. Once the State made it past preliminary hearing there was no stopping this train; we knew we would be going to a jury.
To their credit, the prosecutors had a pretty simple argument, and it was good. The State of Oklahoma claimed that the defendants knew these items were intended for illegal use – smoking marijuana – because common sense dictated that was what you did with these pipes. Their argument was essentially, “Look at it. You know what that’s for.” We were afraid of that argument. We were afraid because it made perfect sense to us.
TWO TLC GRADS TAKE ON THE STATE
Brecken: I graduated from TLC at the end of July 2016, and I hit the ground running. Shortly after returning from the ranch, Blake and I tried a 1st Degree Rape to a not guilty verdict. I saw firsthand what the techniques learned at TLC can do, especially in the hands of two trial attorneys bent on seeking justice.
Blake: I had worked on The Friendly Market Four case at the Ranch during Grad 2, but we were no longer at the Ranch. The lively “juries” made up of fellow attorneys enrolled as their most feared jurors were all caught off guard by the “silliness” of this trial in the Johnson Barn, but the ideas on how to address the danger points were on point. The one thing that we couldn’t workshop was how to deal with an Oklahoma jury. How would they respond?
The first trial of The Friendly Market Four was in October of 2016. It was the trial of Max Walters for misdemeanor Possession of Drug Paraphernalia. Despite the fact it was a misdemeanor, it was a watershed case on the question of whether a glass pipe, by its very existence, was drug paraphernalia. If the State could successfully classify any pipe as paraphernalia, then our clients would be convicted in the felony cases and that decision would undoubtedly lead to raids on similar operations around the State of Oklahoma. The pressure was definitely on. After a three-day trial, the jury deadlocked five to one (not guilty).
After the Walters trial, we took a serious look at our strategy and what we could do to change our approach. We anticipated that the State would do the same type of analysis, and we spent many hours brainstorming what the prosecutors might do differently and how we would counter their steps.
A big part of our preparation was trying to get inside the skin of Detective Newell so we could develop an effective cross examination. This required many hours of reversing roles with the Detective, trying to dig into what made the man who he was. We hit some significant road blocks. Newell was a very seasoned detective with an excellent history. His cases were so solid that they seldom went to trial.
As we went through this archeological dig, we came up with two very different versions of Newell. Initially, we viewed him as the senior detective who was just following orders from the boss – a story we can all relate to. The only problem is that story fit the evidence, but it did NOT fit his zeal for investigating the glass pipe cases. The investigations had supposedly started due to a citizen complaint, but we later discovered the “citizen” was actually a police officer. Newell referred to getting orders to deal with “that element,” as he called stores like The Friendly Market. We ran with the “just following orders” theory in the first trial.
Blake: Brecken walked Newell through his storied career, his years of service, the feeling we all get when ordered to do some menial task, and his desire to do a “good job.” The problem is that Newell didn’t act like someone who was just following orders. He seemed to beam when discussing the process he went through to investigate these “crimes.” Brecken spotted it and did a good job of getting out the ingenuity of this use of the “law” to shut these stores down, but we did not figure out until we were preparing for the second trial that it was Newell the Innovator, not Newell the dutiful employee, who had caught our clients in his web.
After the Walters trial, we started at the beginning with exploring who Detective Newell really was. That is when we discovered Newell the Innovator, the trailblazer, the Legend, the man looking to leave a legacy. Now that we REALLY knew him, Brecken dutifully worked up a cross to bring this out. “Detective Newell, YOU saw a problem. YOU made it known that these people would be shut down by YOU. You innovated a new way to go after these folks. You’re the first one — you go to trainings and they don’t teach this. But now YOU teach this method, the Newell method. It is your legacy, your pride, and anyone who disagrees with you is wrong…including the former District Attorney, the Defense attorneys, and THE JURY.”
Brecken: One of the things we did during the Cody Franklin trial was change up our roles. Blake and I know we have different strengths. Traditionally he would do Voir Dire (something I was convinced I was not good at) and I would always take the main law enforcement witness cross examinations (something he had convinced himself he was not as good at). And this is where the things you learn at TLC really shine. The night before the cross examination of the very charismatic Officer Rick Newell, we met in my hotel room and I convinced Blake that he should handle the cross. We walked through the cross and argued about strategy to the point that Blake left the room threatening to give the cross back to me the next morning if I didn’t shut up.
When we met for breakfast the next morning, Blake said he had made some changes, but we didn’t discuss it any further. What followed was a masterful cross-examination of a difficult witness. Blake’s questions cut to the core of who Detective Newell was and why he was doing what he was doing.
Blake: After Brecken convinced me to step outside my comfort zone and be the one to cross examine Detective Newell, I had little time to REALLY prepare. I knew this witness, I knew the story we wanted to tell, but only through both Brecken and I being prepared could I really step in and be spontaneous.
Brecken: Blake ended his cross by weaving the veteran officer’s story to show that he was actually ignorant of the fact these pipes could be used for something other than marijuana. Blake had the Detective demonstrate how to use legal substances in the pipes which Newell had insisted could only be used for marijuana. What was left was a thoroughly exposed man who had made conclusions based upon ignorance.
In the closing argument, I talked about how our client had been betrayed by the government. I defined that betrayal, and was totally attuned to the righteous indignation of the situation while pivoting to how “we” could do something about it. I told the jurors about the power they possessed. I explained they were the only ones who had the power to right this wrong, and I trusted them, I believed in them, and I put Cody Franklin in their hands. A couple of hours later they gave him back to us, acquitted of all the charges against him. More than that, the jurors waited in the hall after the verdict to talk to us and offer their help and support. The jurors who acquitted Cody became great allies in the battle to curb government overreach.
THE FINAL BATTLE
We thought, naively, that the acquittal of Cody Franklin would encourage the State to dismiss the felony cases against Robert and Stephen. We soon learned we were very wrong. By this point the government had invested everything in being right and could not accept the idea of a truce. The felony cases would go to trial with promises that the trial would likely exceed a week.
Thinking that the loss of the Franklin case would wake the State up to the fact that they needed to change their strategy, we knew we also needed to come up with some new ideas for this trial. Brecken began conducting the search for an expert who could speak about the uses for glass pipes other than smoking marijuana. There was just one problem: that person does not exist.
Brecken: I reached out to the TLC community, and did get some names that eventually led us to Max Montrose of Denver, Colorado. Max is one of the founders of the Tricome institute, which specializes in, among other things, grading and teaching about…marijuana. I talked to Max, and he had all this knowledge about glass pipes and their medicinal properties when used with a variety of different herbs (including marijuana). He was very knowledgeable. He was also a user of these herbs (especially marijuana).
Now, I want you to sit back and imagine the look on Blake’s face when I told him our expert to show our clients were selling pipes that were not intended to be used for marijuana was an expert in how to use these pipes to smoke marijuana. Yeah, that’s the look he had on his face. He said nothing for a few seconds, then I spoke and said, “I mean fuck it, they’re gonna accuse us of it anyways, let’s just turn it on them.” That broke the ice. He laughed and said, “Let’s go for it.”
The trial started, and it wasn’t too far into the State’s voir dire before we realized, once again, the State was not going to do anything to change its approach to the case. But that didn’t mean things weren’t different. This trial was presided over by Judge Tracy Schumacher. She was the third judge we would have in three cases, and would prove to be the most difficult, by far.
Blake: Judge Schumacher ruled against us on everything. When I say that, I mean absolutely everything. If the State asked, they received. If we objected, she would smile, and cut our legs out from under us. The Judge proved to be much more of an obstacle than our adversaries from the State. Looking back, I think the Judge was tired of these cases and wanted to ensure the State could not have a SINGLE appellate issue (i.e. excuse) as to why they lost again. I did not like her strategy necessarily, especially during trial, but I did like knowing that if there were a conviction it would inevitably be overturned.
Sticking to our theme of changing things up, we decided since there were two defendants, we would present two voir dires, two openings, and two closings. However, we would structure them in a way that they were complimentary, since no conflict existed. Both men were facing one felony and twelve misdemeanor counts. We knew we had to keep the State from succeeding on the felony, but we also were intensely aware that if we lost on just one misdemeanor, our clients would lose, and small business owners across the State would likely find law enforcement at their door ready to confiscate their property and clean out their cash drawer.
Brecken: As I stepped up to the podium to start the voir dire, the part of the trial that I had the least confidence in, I sucked in about ten pounds of air and started to speak.
I had been working to include TLC methods during voir dire in prior trials. I had been practicing being patient, and accepting the silence. During this voir dire I asked the jury what they would expect of my client. I waited, and a gentleman on the back row finally spoke up, “Well you have to prove he’s innocent of what they said he did.” Okay, so that’s the worst possible answer I could have gotten. I met his eyes and thanked him for his answer. Two other jurors appeared to nod … shit. And then, silence. I just stood there. Although there was total silence in the huge courtroom, I could hear nothing but screaming in my head. I was in agony. SAY SOMETHING!
And then an angel spoke. “That’s not true, he doesn’t have to prove anything. They have to prove him guilty” a juror on the second row said. Another angel chimed in, “That’s right, he is just accused of something.” The man in the back row looked hurt. All the pride he had in speaking his mind before was now gone. I looked to both of the jurors and thanked them in the same way I had thanked the man in the back row. We were forming a tribe. What happened was amazing to watch … the man in the back row spent the rest of the voir dire trying to agree with anything the majority of the other jurors said. He was trying to get back into the tribe.
Blake: Sticking with the theme of getting out of our comfort zones, and because we both got a bite of each apple, I was again crossing seasoned police officials. This time it included the chief of police. By the time the Chief was on the stand, the State’s theme of “ignoring the law” and “innovating” was full bore, but no one exemplified it quite like the Chief. In Oklahoma – and most States – there are twelve (12) factors that SHALL be considered in determining if an item is paraphernalia. Borrowing from the story book cross methods I learned at the college and Grad 2, I told our clients’ story by walking the Chief through each of the twelve elements, “It didn’t matter to you what the instructions for the pipes were, did it…It didn’t matter to you that these items were not near any narcotics…the manner in which they were displayed didn’t matter to you…” etc. To each mandatory consideration The Captain agreed, they did not matter. When I pushed him a little on the fact that the jurors had to consider these factors, The Chief barked back that he “did not like my tone.” I replied, “I will be more careful with how I speak to power.” While it was true and felt good to say it, that statement got me an admonishment and I lost some points with the Jury.
In this third trial, for the first time the State was introducing Robert’s letters, newsletters, and the covert recordings of what he said during the undercover buys. Even though we fought to keep some of it out, in the end this information ended up being a saving grace that gave the jurors exactly what they needed. We had already conceded Robert would not testify, but the jury would get to hear his words from the very detective that used covert means to try and trap him. Again, using story book cross we used the Detective to tell the Jury about Robert’s mission, his mantra of freedom through personal responsibility, his refusal to concede that he was selling the items for an illegal purpose, and his store policy of throwing people out of the store if they said they were using the pipes to smoke marijuana or even just using the wrong words.
Due to a pretrial ruling that prevented the defense from bringing up Cody’s acquittal in Robert and Stephen’s trials, the questioning on that issue had to be quite nuanced.
Detective Newell agreed with the story we chose to tell through his cross examination – that everyone had gotten it wrong but him. He agreed with our leading questions that the Defense, the prior DA, and any jury that decided these glass pipes are NOT drug paraphernalia had just plain gotten it wrong. We were, however, allowed to ask the Detective if he had charged Cody Franklin with possession of paraphernalia under the same facts, and ended the cross examination with the question “And Cody Franklin is no longer charged with a crime is he…”
In preparing for the third Friendly Market trial, we knew that the testimony of the defense expert witness was going to be crucial. The first time Max Montrose came to Oklahoma City, we asked him to demonstrate how to use these glass pipes to smoke tobacco and other herbs than marijuana. We filmed it in the event the judge wouldn’t let Montrose demonstrate how these pipes were used, in the courtroom. In the end, the Judge didn’t allow either the video or an in-court demonstration.
After they had concluded the filming, Brecken took Max on a practice run of direct examination. He did fine, he sounded knowledgeable, but he also sounded like he was trying to be an expert. There was more work to be done.
Next, our trial team went into a practice cross examination. The room was filled with all of our clients and some others that were part of the case. Max was ready for a fight and he brought just that.
Brecken: When we were done, I asked Max how he thought he did. “I think it went great,” he said.
I turned to the others in the room and asked how they thought he did. Everyone in the room squirmed in uncomfortably polite silence. “Well Max”, I began, “you just told us that cops are stupid, Oklahomans are more stupid, and cops in Oklahoma are most stupid of all.”
Max looked around the room, and everyone avoided his gaze in unanimous agreement. To Max’s credit, he was eager to learn and do better. He was committed to the cause and wanted to help.
Although it took a couple of meetings, listening exercises, and chair backs, we found the path together. The real breakthrough came when I asked Max to imagine someone in his life whom he not only loved, but also respected. Someone who didn’t understand his passion and why he had decided educating people about marijuana would be his life’s work.
“Now think of that person,” I said. With me sitting behind and doubling him, we began to have a conversation with that person, which allowed Max to put away his contempt for the usual ignorant person he was used to debating, and he began to explain his knowledge with patience and a kind of compassion. “I’m that person when we talk in court.” I said. “The prosecutor is that person. Talk to both of us just like that.”
When it came time for Max’s direct examination, the defense embraced him for who he was. Max talked about what he did for a living as well as testifying about his personal love of marijuana. He even told the jurors that he had legally smoked marijuana at a conference in Puerto Rico only the day before. His confidence was contagious. His connection was irresistible, and during the direct examination, Brecken barely said a word.
Max was upfront, brutally honest, and when the time came for him to show his expertise, he did. He mesmerized the jury with fact after fact about medicinal herbs, and the culture of smoking. He showed what the State refused to acknowledge – that there was both a legitimate and illegitimate use for these pipes in accordance with current Oklahoma law.
The State cross-examined Max Montrose for over an hour about the fact that he smoked marijuana. The jury looked bored to tears.
Brecken: Our closing in this third trial followed the same format as the two prior trials. The betrayal, the indignation, the empowerment. It was not easy to let go after seven full days in trial separated only by a sleepless weekend. I was emotionally spent, but I gave Robert and Stephen’s fate to the jury on behalf of both Blake and myself.
The waiting, as always, was the worst part. Friends and family gathered outside with us in vigil as we awaited the verdict. Hours passed, and as the night began to creep in, turning dusk to black, I found myself sitting alone on a concrete bench. I was fighting back tears, and beginning to embrace the cold that was failure. By this point I had convinced myself of such, and then my phone began to ring.
As a group we trudged into the courtroom. I stood erect and stoic in a useless attempt to hide my overwhelming fear. The jury marched in, took their seats and gave their verdict to the judge. The first “Not Guilty” that she read applied to the felony. My elation was tempered by the fact that I knew we had to hear those words twenty-five more times.
And we did.
Post Script: Following the not guilty verdicts, the State objected to returning the $15,000 inventory of glass pipes it had seized, still insisting — as Mashburn’s office did during the criminal proceedings — that the pipes are drug paraphernalia. When a judge ordered that the seized property be returned, the State appealed. The State’s argument was rejected in a unanimous decision by the Oklahoma Supreme Court on September 12, 2017.
With this saga finally closed, Cox plans to reopen The Friendly Market. It won’t be changing too much in its next incarnation. It will still sell glass pipes, furniture, art, essential oils and clothing, but there is one notable addition that the store will look to stock.
“We plan to sell an array of legal, smokable herbs that were actually demonstrated by one of our witnesses at trial,” manager Stephen Holman said. “We plan to sell as many of those legal herbs as possible to show that those pipes are used for other things and also to make people more aware of the different legal herbs and what they can do that some prescriptions aren’t accomplishing.”