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PREVENTION OF DRUG ABUSE An Example of Prosecuting
BY HEADING IT OFF
AT THE GATEWAY DRUG STEP
Fighting It After The
Gateway Drug Process Has Taken Place
Government Officials When Death Results:
The Case of People vs Budzyn and Nevers
Recommended Websites for Background Data
DWB Government Crime
Michigan Law Murder Precedents
Cigarette Ads Are Illegal
An Example of Prosecuting
1. Introduction and Background
2. The Specific Incident At Issue
3. The "Universal Malice" Doctrine
4. The "Taking Victims As They Come" Doctrine
5. The "Perception of the Hazard" Concept
6. Job Safety Law Principles
7. The Twin Duties of Prevention of Harm
8. Entrapment Principles
9. The Decision Belonged to a Jury
11. Other Websites Specifically On This Case
12. How to Prevent Future Such Incidents
13. Postscript—Nevers Has Lung Cancer
|acetaldehyde||3,200 ppm||200.0 ppm|
|acrolein||150 ppm||0.5 ppm|
|ammonia||300 ppm||150.0 ppm|
|carbon monoxide||42,000 ppm||100.0 ppm|
|formaldehyde||30 ppm||5.0 ppm|
|hydrogen cyanide||1,600 ppm||10.0 ppm|
|hydrogen sulfide||40 ppm||20.0 ppm|
|methyl chloride||1,200 ppm||100.0 ppm|
|nitrogen dioxide||250 ppm||5.0 ppm|
"Nationwide, the [ratio] of smokers [to non-smokers] in prisons is 90 percent." McKinney v Anderson, 924 F2d 1500, 1507 n 21 (CA 9, 1991), affirmed and remanded, 509 US 25 (1993).
"Nowhere is the practice of smoking more imbedded than in the nation's prisons and jails, where the proportion of smokers to non-smokers is many times higher than that of society in general." Doughty v Board, 731 F Supp 423, 424 (D Col, 1989).
"It is an undisputable fact, and one that should give us considerable concern, that . . . nearly all criminals are cigarette smokers." (1931)
"What has been called a 'crime wave' in the United States the past few years has been misnamed. It is not a wave. It is a harvest-the natural result of the sowing . . . 'Sow tobacco, and reap crime.' The Criminal, published for detectives and police officers, says 93 per cent. of all criminals use tobacco before committing the crimes leading to their arrests. . . . Hon. George Torrance says: 'Of 4,117 boys received into the Illinois State Reformatory, since its organization on Jan. 8, 1893, 95 per cent. had the tobacco habit, and nearly all were cigarette smokers.'"(1925)
"[J]udges of juvenile courts everywhere recognize the close relationship that exists between cigarettes and crime. . . . Not only does the use of cigarettes produce a criminal tendency . . . it also produces what might be termed [psychopathy] . . . a condition in which lying, thieving, and murder become as natural as eating and drinking . . . ." (1924)
"Cigarettes are not the effect of crime, but they are the cause of it. . . . Dr. Gentry, of Chicago, says . . . 'The only way to stop the increase of . . . criminals . . . is to stop the use of tobacco, and also the raising and manufacture of it. . . . The use of tobacco is a great crime.'" (1916).
"Investigations in prisons, and houses of correction, and State reform schools show that a vast majority of their inmates used Tobacco before they committed crime. . . . 'The more Tobacco, . . . the more . . . crime.'" (1878)
"The Chaplain of the State Prison, at Auburn, for the year 1854 . . . reports. . . that five-sixths, or five hundred, out of six hundred who were convicted for crime . . . use . . . tobacco. Outside of this statistical statement, my own investigations . . . corroborate the truth of this record." (1879)
"by reason of his position . . . responsibility and authority either to prevent in the first instance, or promptly to correct, the violation" (of whatever type occurs) so "if he [the officer] does not will the violation, [he] usually is in a position to prevent it," United States v Park, 421 US 658; 95 S Ct 1903; 44 L Ed 2d 489 (1975).
|The cases of Application of Yamashita, 327 US 1; 66 S Ct 340-379; 90 L Ed 499 (1946), and Application of Honmo, 327 US 759; 66 S Ct 515-517; 90 L Ed 992 (1946), establish that 'negligence' in a government official, in failing to stop third parties from killing, can itself be deemed a crime, in these cases, warranting hanging.|
"unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line." Boyce Motor Lines, Inc v United States, 342 US 337, 340; 72 S Ct 329, 331; 96 L Ed 367 (1952).
A. Leon Higginbotham, Jr., and Greer C. Bosworth, "'Rather Than the Free': Free Blacks In Colonial and Antebellum Virginia," 26 Harvard Civ Rights-Civ Liberties Law Rev 17-66 (1991);
A. Leon Higginbotham, Jr., et al., "The Law Only As An Enemy," 70 No Carolina Law Rev 969-1023 (1992);
Paul Finkelman, "The Crime of Color," 67 Tulane Law Rev 2063-2112 (1993); and
Andrew L. Shapiro, "Challenging Criminal Disenfranchisement Under the Voting Rights Act: A New Strategy,"103 Yale Law Journal 537-566 (Nov 1993).
"'regardless of human life, although without any preconceived purpose to deprive any particular person of life." State v Massey, 20 Ala App 56, 58; 100 So 625, 627 (1924).
"If an act be committed with a premeditated design to effect death, it is murder in the first degree; but if it is merely imminently dangerous to others, evincing a depraved mind, regardless of human life and without premeditated design, it is murder in the second degree." Montgomery v State, 178 Wis 461; 190 NW 105, 107 (1922).
"Precisely what happened is what might have been expected as the result . . . and is the "natural and probable consequence . . . Malice is presumed under such conditions." Nestlerode v United States, 74 US App DC 276, 279; 122 F2d 56, 59 (1941).
"An instruction asked by defendant was to the effect that if, on the account of the diseased condition of Solberg [the dead victim like Green], a blow of less force caused his death than would have been required to take the life of a healthy man, the defendant cannot be held guilty unless he knew of the true condition of the health of the deceased. The instruction was properly refused, and the jury were informed, in substance, that the condition of Solberg's [Green's] health would not excuse defendant. Surely it cannot be claimed that a homicide may be excused on the ground that the man-slayer was ignorant of the fact that his victim's feeble condition [that he by his long refusal to enforce the preventive law, had helped cause] was not such as to enable him to resist the violence" State v Castello, 62 Iowa 408; 17 NW 605, 606-607 (1883).
"If the exposure [beating] accelerated the death, it 'caused' the death." State v Smith, 73 Iowa 35; 34 NW 597, 601 (1887).
"If it appear from the evidence that the death of deceased was accelerated by the violence of the defendant, his guilt is not extenuated, because death might have come from natural causes as a result of disease with which the deceased was afflicted at the time." Barron v State, 29 Ala App 137; 193 So 190, 191 (1939).
"Death in this case was not casually caused by misadventure and thus, in the sense that the defendant's conduct was capable of causing death in and of itself, that conduct was inherently dangerous to life. . . . The requirement that the danger posed be apparent does not require that death be certain or even probably, in the sense that it is more likely than not. . . ."
"That one may be guilty of homicide by a blow of not itself mortal, but which accelerates death, is proposition supported by the old case of State v Morea, 2 Ala 275, and many other authorities. Tidwell v State, 70 Ala 33, 45; Bowles v State, 58 Ala 335, 339, and cases there cited; and, if there be cases of death accelerated by a blow, in which the party delivering the blow is not responsible for the result, this is not one of them." Winter v State, 123 Ala 1; 26 So 949, 952 (1899).
"The danger of death . . . is not completely outside the realm of common knowledge . . . Although the death may have been an occurrence unexpected by the [specific ] defendant, that [ignorance defense] fact alone cannot diminish the danger in which the defendant by his conduct chose to place . . . life. On the basis of all the evidence it was reasonable for the jury to be convinced beyond a reasonable doubt that the [police] defendant's conduct was imminently dangerous to another."
"An important consideration here is . . . relative physical characteristics of the victim and assailant [are] factors which may be considered in determining whether conduct is imminently dangerous. Wangerin v State . . . 73 Wis 2d  at 435; 243 NW2d  at 452; Kasieta v State, 62 Wis 2d 564, 570-571; 215 NW2d 412, 415-416 (1974). It is not unreasonable to infer that the physical trauma . . . will be greater . . . more frightening . . . the probability . . . greater than in the general case." Turner v State, 76 Wis 2d 1; 250 NW2d 713, supra.
"If his [the perpetrator's activity] violence so excited the terror of the deceased that she died from the fright, and she would not have died except for the assault, then the prisoner's act was in law the cause of her death." Ex parte Heigho, 18 Idaho 566; 110 P 1029, 1031-1032 (1910).
"manslaughter where death was caused by fright, fear, or nervous shock, and where the prisoner made no assault or demonstration against the deceased, and neither offered nor threatened any physical force or violence toward the person of the deceased." Heigho, supra.
"The law clearly covers and includes any and all means and mediums by or through which a death is caused by one engaged in an unlawful act." Heigho, supra.
"defendant cannot escape responsibility . . . under the doctrine of apportionment of wrongs, which the law does not do; the law does not apportion the wrong." Barron, 20 Ala App 137; 193 So s191, supra.
"was caused . . . or hastened . . . or accelerated . . . is of no moment in this inquiry."
"Heart attack . . . failure of circulation . . . asphyxiation, the condition where the body tissues have an insufficient amount of oxygen and excess carbon dioxide." Turner, 76 Wis 2d 1; 250 NW 2d, 172, supra.
"violation of the regulations [here, the principles herein] is evidence of negligence to be considered with the other facts and circumstances," Dunn v Brimer, 537 SW2d 164, 165 (Ark, 1976).
"The requirements of foresight and vigilance imposed on responsible corporate agents are beyond question demanding, and perhaps onerous, but they are no more stringent than the public has a right to expect of those who voluntarily assume positions of authority," United States v Park, 421 US 658, 672; 95 S Ct 1903; 44 L Ed 2d 489 (1975).
"'The accused [official or officer], if he does not will then violation, usually is in a position to prevent it . . . '" Park, 421 US 658; 95 S Ct 1903; 44 L Ed 2d 489, supra.
"defendant had, by reason of his [position . . . responsibility and authority either to prevent in the first instance, or promptly to correct, the violation complained of, and . . . failed to do so. [Conviction upheld]." Park, 421 US 658; 95 S Ct 1903; 44 L Ed 2d 489, supra.
"The defendant was charged with the duty to see to it that . . . life was not endangered; and it is apparent he could have performed that duty . . . " [And] "To constitute murder, there must be means to relieve and wilfulness in withholding relief." Stehr v State, 92 Neb 755; 138 NW 676, 678 (1913).
"A tortfeasor has a duty to assist his victim. The initial injury creates a duty of aid and the breach of the duty is an independent tort. See Restatement (Second) of Torts, § 322, Comment c (1965)." Taylor v Meirick, 712 F2d 1112, 1117 (CA 7, 1983).
 take away the power of resistance [by producing and unsound mental condition . . .  make [the user] an easy prey to [the pusher and other harm]  work upon [the ] physical system [so] as to excite . . . passions beyond the control of reason, and,  in effect . . . produce, if not insanity, the most deplorable effect of insanity, which is the dethronement of reason from its governing power." People v Carmichael, 5 Mich 20-21, supra.
"The war on drugs was only an illusion. . . . drug dealers . . . had bigger and better connections in the American government than [prevention-types] did." See Michael Levine (DEA agent 1965-1989), The Big White Lie (NY: Thunder's Mouth Press, 1993), p 124.Instead of exposing the War on Drugs as an illusion, and helping win it, by enforcing the anti-gateway drug law, MCL § 750.27, MSA § 28.216, Budzyn and Nevers were part of the problem, refusing to do "the stitch in time that saves nine."
"It was the province of the jury to determine whether the wrong of defendant caused or contributed to his [the victim's] death. The fact that he was afflicted with a disease which might have proved fatal would not justify the wrongful acts of defendant, nor constitute a defense in law. State v Smith, 73 Iowa, 35; 34 NW 597. Nor would ignorance on the part of defendant of the diseased physical condition of Stocum [Green] excuse his acts. State v Castello, 62 Iowa, 408; 17 NW 605." State v O'Brien, 81 Iowa 88; 46 NW 752, 753, supra.
"As was said by Justice Denman in the Towers Case, it would be 'laying down a dangerous precedent for the future' for us [judges] to hold as a conclusion of law that manslaughter could not be committed by [mere] fright, terror, or nervous shock [much less, by cigarettes' toxic chemicals!!]." Ex parte Heigho, 18 Idaho 566; 110 P 1031-1032, supra.
|Detroit News Article||Human Rights Watch||Michigan Supreme Court Decision, 456 Mich 77; 566 NW2d 229 (1997)||Sixth Circuit Court Decision, 169 F3d 352|
|Ex Order 1992-3||Law Support Letter # 1||Anti-Cigarette Smuggling Finding||Law Support Letter # 2||Governor's Overview|
|Addiction: Known Since 1527||Cancer and Smoking: A 1925 Report||Cigarette Hazard: The 1889 Legislature's Report||Cigarettes' Illegal Toxic Chemicals|
|The Gateway Drug Delivery Agent||Tobacco Induced Lung Cancer||Medical Fact-Finding Principles||Michigan's Cigarette Control Law MCL § 750.27, MSA § 28.216|
|Murder Precedents||Need for Cigarette Billboard Control to Prevent Racial Targeting||Need for Enforcement of Current Anti-Cigarette Advertising Law||The Role of the|
Gateway Drug in Alcoholism
|The Role of the|
Gateway Drug in Crime
|The Role of the Gateway Drug in Other Drug Use||Stop Building More Prisons||Widespread Governmental Corruption and Racism Undermining Enforcement.|
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