Defense to Drug Prosecutions

The Chemistry Defense against Controlled Substance Charges

James Shellow invented the “chemistry defense:” the “species defense” to marijuana prosecutions; the “isomer defense” to cocaine and heroin charges. For thirty years he believed and taught that a chemistry defense was a last resort. It should only be attempted when the search was constitutional, the defendant was not entrapped, no traditional defense was available; and the defendant could not plead guilty. Sometimes it was successful and a jury acquitted. More frequently, prosecutors were unwilling to learn the chemistry they had avoided in college and agreed to reasonable plea bargains. Occasionally, but rarely, prosecutions were dismissed, or pretrial diversions implemented.

The chemistry defense was tried on cross-examination without a defense expert but usually failed. A competent defense expert witness improved the odds of acquittal. The defense was written about and occasionally other defense lawyers were successful. The defense was described as follows:

By insisting that forensic chemists conduct accurate and comprehensive analyses, Messrs. Shapiro and Shellow have wrought a revolution in forensic chemistry. The federal government and the states have had to free people on the basis of evidence that just a few years ago would have been sufficient grounds for conviction. Drug enforcement laboratories have had to purchase new equipment. Forensic chemists have had to go back to school to study chemistry. Defense lawyers have had to learn what the "chemical defense" is and how to use it. In short, every courthouse in America, advertently or inadvertently, has been affected by the "chemical defense."

Judge Wisdom wrote for the United States Court of Appeals,

The day before trial, the prosecution learned that James Shellow, well known as an expert in defending cocaine charges, would join Bockius's two attorneys who had already filed notices of appearance. Shellow had originated a sophisticated scientific defense grounded in the chemistry of cocaine. In the trial he conducted what may properly be described as an extraordinarily able examination of the witnesses, based on his knowledge of the chemistry of cocaine.

Ten years ago James Shellow concluded that computers small enough to be taken into courtrooms were now powerful enough to challenge the conclusions of prosecution analysts. He now calls a computer expert as a defense witness. The expert testifies that the very data upon which the prosecution relies creates a reasonable doubt. The probability of a not guilty verdict has substantial increased and he no longer limits the use of the chemistry defenses to cases in which no other defense is available.

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