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Pot Games

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According to drug-reform activists, the nomination of Tandy–a career Justice Department prosecutor and administrator whose most recent assignments have including busting mail-order bong sellers and those involved in Oregon and California’s state-sanctioned medical marijuana programs–is a clear signal from the Administration that it will give no quarter on any aspect of marijuana policy. This view is also echoed by veteran defense attorneys who have tangled with Tandy; they marvel at the lack of scrutiny her nomination has received, both in the press and on Capitol Hill. Though nary a critical question or ill word was uttered to Tandy at her hearing, a preliminary Nation investigation has found numerous instances of prosecutorial over zealousness on Tandy’s part that don’t lend themselves to a rubber-stamp confirmation:

§ While coordinating the grand jury investigation of major marijuana traffickers Christopher and Robert Reckmeyer in the Eastern District of Virginia in 1984, Tandy and two federal agents were "disqualified and prohibited from directly or indirectly participating" in the investigation by Judge Albert Bryan Jr. because they read documents the court had ruled were protected by attorney-client privilege. On an arcane point of procedure, an appellate court reluctantly reversed Bryan’s decision, noting that it was finding for Tandy "with admitted discomfort" that "the government shall have been able to violate both court decrees and adjudicated rights without any accountability in this proceeding."

An April 9, 1985, Washington Post article reported that other underhanded Tandy actions in the Reckmeyer case–like waiting only three days before giving defense attorneys over 60,000 pages of critical documents, all unindexed–had made the US Attorney’s office an object of scorn to the court and the defense bar. Robert Reckmeyer later revealed in an affidavit that after he agreed to aid the government in exchange for a lesser sentence, Tandy afforded him the highly unusual, if not dubious, privilege of lengthy private visits with his wife and family. "There came a time during my debriefings when Karen Tandy complained to me that I was ‘not being cooperative,’ " he wrote. "I interpreted this to mean that Ms. Tandy was upset because I was not saying what she wanted me to say. She told me that if I was not ‘more cooperative’ in the future, she would end my visits with my wife."

And even though Tandy’s probe turned up no indication that the Reckmeyer brothers’ father, William, had been involved in their criminal enterprise, Tandy ordered his property seized as well. "It cost me a lot of money, time and psychic energy in court to get my property back, but I did–the judge implicitly said her witnesses perjured themselves," recalls William Reckmeyer.

§ While negotiating a 1982 plea agreement in the Eastern District of Virginia with Michael Harvey, a first-time drug offender, Tandy changed the agreement’s wording–without informing Harvey, his lawyer or the court of the change–in a way that successfully set Harvey up for another arrest, prosecution and conviction in a South Carolina federal court upon completion of his plea-bargained Virginia sentence. An appeals court later vacated Harvey’s second sentence, finding Tandy’s actions disingenuous; the plea bargain, the court concluded, was "intended to ‘put behind him’ all of Harvey’s potential liability for all offense ‘arising from’ the general investigation underway, which everyone involved, including Ms. Tandy, knew included activity in South Carolina that was later charged to Harvey."

§ According to material submitted to the National Association of Criminal Defense Lawyers in 1988, Tandy failed to turn over exculpatory evidence in the 1987 prosecution for cocaine distribution of Alfredo Arroyo. Though the allegedly withheld materials ultimately proved unnecessary–a jury acquitted Arroyo after concluding that he had been entrapped–defense attorney John Zwerling sent case materials to NACDL’s Government Misconduct Committee, asking for advice on what action, if any, might be initiated against Tandy. Failing to receive any guidance from the committee, Zwerling reluctantly let the matter lie.

§ Despite an overall lack of evidence in a 1994 case against John Wheeler, a North Carolina small-businessman, Tandy ordered Wheeler’s business and property seized. "It was an outrageous example of the government both overreaching and overcharging, and quite frankly trying to squeeze a legitimate businessman into saying things that weren’t true to further cases against others," says Joshua Treem, Wheeler’s attorney. "After two years of litigation, the government dismissed all the charges pending against Johnny. They had no evidence whatsoever. It was so bad that when they submitted the dismissal letter, the judge interlineated on the order, dismissing the charges with prejudice."

The Wheeler case and others took place back in the days of the draconian Comprehensive Asset Forfeiture Act [see Eric Blumenson and Eva Nilsen, "The Drug War’s Hidden Economic Agenda," March 9, 1998], a Reagan-era initiative that Tandy literally wrote the book on for Justice Department prosecutors. Though some of the more excessive aspects of that law–which radically eroded not only the rights of suspects but of nonsuspects associated with federal investigations–were ameliorated thanks to a late 1990s bipartisan effort spearheaded by Congressman Henry Hyde and signed into law by Bill Clinton, drug-policy observers expect Tandy’s DEA to use current asset forfeiture law as expansively as possible.

Though much about Tandy’s career has gone unexamined (in addition to her Virginia days, she’s done stints as a federal prosecutor in Washington State and asset forfeiture chief at Justice), few senators seem interested in her past or future. So far, only Senator Richard Durbin has gone on record as opposed to Tandy’s nomination; in response to his written queries, not only did Tandy demonstrate ignorance of kep policy studies but she "didn’t back off an inch," as Durbin put it, from the view that the DEA should proceed apace with medical marijuana raids. California Democrat Dianne Feinstein has also expressed misgivings about Tandy, observing that the nominee "doesn’t seem amenable to listening" to concerns about federal law enforcement and state-sanctioned medical marijuana.