A blog by Miami Criminal Defense Lawyer Brian Tannebaum. Commenting on criminal law issues of local and national interest.

Tuesday, February 03, 2009

The Prosecution Of Michael Phelps

I knew it.

The minute I saw this picture:

I said, "when's the arrest?"

Now, I'm not advocating the arrest of Michael Phelps. In fact, I think the arrest and prosecution of Michael Phelps is a great example of what's wrong with America.

One thing first. Lawyers for Michael Phelps, what were you thinking? Sorry for assuming you were thinking, but why did you allow your client to say ANYTHING?

I trust the lawyers on board Michael's team wear white shirts and rep ties and saw a courtroom last when they were sworn in to the Bar, so allow me to offer some advice: When you are presented with a photo of your client possibly committing a crime, you and your client, say nothing.

Now I know the first thought was "how do we protect Michael's endorsements and his boy scout image?" That was stupid, but I trust you all didn't think to even speak to a yucky criminal defense lawyer.

So now we have a photo and a modified confession. "I engaged in behavior which was regrettable and demonstrated bad judgment," said Phelps. The regrettable behavior and bad judgment being opening his big mouth after opening it to cover the bong.

Cue today's story that the Sheriff is contemplating criminal charges.

"Authorities will file criminal charges if the investigation determines that they are warranted, a spokesman said Tuesday."

Well that's good to know.

Here's my favorite quote: "The Richland County Sheriff's Department is making an effort to determine if Mr. Phelps broke the law. If he did, he will be charged in the same manner as anyone else. The sheriff has a responsibility to be fair, to enforce the law and to not turn a blind eye because someone is a celebrity."

I wonder what would happen if people just started sending in photos of people smoking pot in Richland County?

No, actually, I don't.

Here's the mission of the Richland County Sheriff's Office:

"It is the mission of the Richland County Sheriff's Department to improve the quality of life of the citizens of Richland County by:

Maintaining a high standard of professional accountability, reducing the fear of crime, and reducing the fear of retaliation from those persons who constitute the criminal element within the county."

So if Michael Phelps is arrested for possession of marijuana that "reduces the fear of crime or "reduces the fear of retaliation from those persons who constitute the criminal element within the county?"

No, but what the hell. Pot is bad, illegal, and as the Sheriff said "If someone breaks the law in Richland County, we have an obligation as law enforcement to investigate and to bring charges."

I hate to use legal reasoning here, but c'mon!

Have you seen the news Sheriff? Is your department, your county, facing severe budget cuts? Are the residents crying out for pot smokers to be prosecuted? It is a college town you know.

I say so what, who cares. This is the message we send? That if a photo surfaces of misdemeanor conduct (by the way "misdemeanor" means "mistake in demeanor," not "murder") and someone apologizes, we initiate an investigation and prosecute?

Move on already. America, and especially Richland County are no safer by the arrest or prosecution of Michael Phelps.

I think he will be arrested - not for the photo, but for the photo and for opening his big mouth.

Michael asked for forgiveness from the public. Unfortunately, that public probably does not include the resourceful law enforcement in Richland County South Carolina.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com


okdork.com rules Post to Twitter


  1. I completely agree with your opinion. Youthful indescretion. Period. This says nothing about his character, and as you said, it is not murder. Law enforcement should focus on REAL problems.

  2. Any charges brought against him are going to be thrown out of court anyway. Can they prove that there was weed in the bong? No. Can they prove that he inhaled (even though we all know he did)? No.

    There's no way they can possibly prove that he's guilty. Its just the sheriff trying to get his 5 minutes of fame. Its a shame that its going to tarnish Phelps' reputation (even though this entire story is just plain stupid.)

  3. Anonymous10:39 PM

    You Americans are hilarious, you try and still bring down an american hero after all he has accomplished, one of the greatest athletes ever. So what, he hit the bong, big f;n deal, he is a young man entitled to his choices and decisions. It is almost comical that they are going to press charges, get a life America, and put your time into the root of the problem, greed!! Change you gay laws and stop putting innocent, tax paying people in jail for pot, its a goddam joke. Props to Phelps!

  4. Anonymous10:39 PM

    I agree with everything stated here. In fact, if he's been smoking pot all this time, doesn't that make it even more spectacular from an athletic perspective? Smoking marijuana can't be that good for your lungs ;).

  5. Anonymous10:45 PM

    Ok, so Michael Phelps makes an admission he was smoking marijuana... If they are going to file charges partly based on his "admission", then I want to see charges filed against Bill Clinton and Obama... ;)

  6. Legalize it already! If he had a Budwiser in his hand he could ad Budwiser to his list of companies that he could endorse.

    And the sheriff? What a joke! A very bad joke- typical fascist mentality. He must be desperate to show that he actually goes to work every day.

    This is a prime example of hypocrisy led my America. If we could shut the nincompoops up at the churches and actually have a vote on legalization, this stupid story - wouldn't be a story and Michael Phelps would continue the be the sports hero that he is.

  7. I agree with everything stated here too. It is so ridiculous that this is even a headline...who cares? There are so many issues that are much more important in this day and age. It's interesting how we put these people up on pedestals and then are so quick to push them down every chance we get. No one is perfect, and if someone wants to smoke pot, celebrity or not, go for it.

  8. Anonymous1:01 AM

    If they are going to prosecute him, then they should do the same to every person on myspace and facebook doing the same thing. It's CRAZY to just get him because he is in the public!

  9. Anonymous2:05 AM

    The headline should read "Drugs Win Drug War". The quickest financial aid I can think of would be to decriminalize marijuana and tax it like tobacco and alcohol. Also the money saved by not having to jail non-violent users would be quite a stimulus. I'm not saying all drugs should be legal but face reality America - the last 3 Presidents have smoked it, so how many other Americans do or have at one point? Well 600,000 Americans are jailed every year for simply possessing it. How much is that costing us (around $40,000 per person per year) and the average teacher makes around $47,000 - you figure it out.........

  10. Anonymous3:48 AM

    absolutely ridiculous prosecuting him on this!!! c'mon America, how many of you have at one point or quite possibly still enjoy the green now and then. i think this is a good vehicle for the people that believe that pot smoking is grounds for IMPRISONMENT, to challenge the stupidity of the law. keep in mind people, that we live in a government of the people, by the people, and for the people. Stand up people and fight for what you believe is right!!

  11. Anonymous3:50 AM

    ....ask mr. abraham lincoln about that one!

  12. Anonymous4:02 AM

    First off, I just want to say I'm all for legalizing marijuana. But, Phelps is a celebrity, a young icon who many kids look up to. His accomplishments will go into the history books. Thus, he has a far greater responsibility than us normal folks. I mean, what was he thinking? If you want to smoke pot, do it under your own roof where strangers can't photograph you. What he did is clearly based on poor judgement. Smoking pot in an open house college party, what else does he expect? He's Michael Phelps, these photos were bound to come out.

  13. Anonymous4:07 AM

    good point, but atleast he apologizes for his choice of poor judgement. everyone on here is saying that they believe marijuana should be legalized/decriminalized, but they keep blaming someone that brings this point to the forefront for lacking good judgement. c'mon, if you believe what you do, you should be lauding this man for his efforts!!!

  14. Anonymous4:10 AM

    besides that, you talk about a good defense for pot smoking. everyone growing up is taught that pot smoking will render you couch potatoes for life, that you will never accomplish anything in life. wait, never accomplish anything? 8 gold medals in one olympics- never accomplish anything ha!

  15. I don't think charges can even be brought up against him. The way I understand it, you have to be caught red handed, with marijuana on you for it to be an arrestable offense. I have never ever heard of a case with the prosecution trying to prove that at one time a person possessed an illegal substance. Even he he does get arrested, there is about a 0% chance of conviction.

  16. Anonymous5:42 AM

    We might as well investigate Barack Obama for saying "I inhaled frequently" on TV.


    -bobby from kansas

  17. Anonymous6:37 AM

    The sherrif here is just looking for free publicity. Possession can't be proven, use isn't even mentioned in the law:

    § 44-53-370. Prohibited acts A; penalties.
    (a) Except as authorized by this article it shall be unlawful for any person:
    (1) to manufacture, distribute, dispense, deliver, purchase, aid, abet, attempt, or conspire to manufacture, distribute, dispense, deliver, or purchase, or possess with the intent to manufacture, distribute, dispense, deliver, or purchase a controlled substance or a controlled substance analogue;
    (2) to create, distribute, dispense, deliver, or purchase, or aid, abet, attempt, or conspire to create, distribute, dispense, deliver, or purchase, or possess with intent to distribute, dispense, deliver, or purchase a counterfeit substance.

    Maybe they have some local ordinance against use - if so I'd love to see it prosecuted, so we could all see it get struck down. Why?

    First, there doesn't even appear to be an SC statute outlawing underage consuption of alcohol (though there is for delivery of alcohol for consumption by minors).

    Second, while in some countries (I lived in Korea for 3 years) you can get prosecuted for a picture, or even just testing positive, the U.S.fortunately has higher evidentiary standards.

    Third, so-called "status offenses" are unconstitutional - you can write "pot dealer" as your occupation on your tax forms without fear. It seems that any case they could make against Phelps would be for being a "pot user."

    I'm curious if anyone here can point to any law, anywhere in the U.S. where a person can be prosecuted for marijuana use (without possession or some other act)?

  18. Anonymous7:05 AM

    SSSTTTTOOOPPP, If he's getting high then where's the white stuff? How come we don't see any smoke inside the bong. What are we stupid 95% of us have seen someone smoke out of a bong, gimmee a break, He is not a role model. If this redneck of a sherriff bust him then he should break it off in the a$$ of the guys who had the party, I'M pretty sure that nobody just showed with a bong hanging outta their shirt. So anyone with fingerprints on this bong is open to prosecution also. He is just a kid who is parting with other kids his age. If this was me, I would dig up some past dirt on the sheriff and the prosecutor. Because they were both idiots back in the day. So no one is immune.
    Best advice I could ever give, don't get famous if you have the slightest chance of a skeleton in your closet. Just be normal like the rest of us sheep. BBBBAAAAA

  19. Anonymous7:05 AM

    unfortunately for the sheriff's office it is not illegal to smoke marijuana. it is illegal to posses it. any charges brought against him are only speculation at best. he could have been smoking tobacco from that bong. although we all know that he wasn't but they can't prove that he was smoking marijuana when that photo was taken. personally i wish NORML would wake him their spokes-person, lol. make marijuana legal. plain and simple. quit locking up americans for smoking a little pot. annual alchohol related eaths: 85,000; annual tobbaco related deaths: 435,000; annual marijuana related deaths: 0. the numbers speak for themselves.

  20. Anonymous7:10 AM

    I'm sure CNN could help.
    seriously, we should bring up the fact the United States president Barack Obama admits to smoking weed on video.

    marijuana part of our 'drug on war' could help pay little for public health care. it already pays for health care for our incarcerated!

  21. Anonymous7:10 AM

    Was going to post along the lines of T.Ballard (Prior post in this blog). Nicely said T!
    In addition: Sherriff Lott needs to find some real criminals to spend his time chasing. Arreasting Michael Phelps does nothing to manke the people of his community safer in any way, shape, or form.
    I think SHerriff Lott was once beaten up by a stoner and this is his big revenge.

  22. Anonymous7:18 AM

    opps - i ment 'war on drugs'
    tee-hee, must be my silly bong hits!

  23. Anonymous7:30 AM

    The idea of charging him with posession in this matter is ludicrous. All he has to do is plea not guilty, and let them fumble around trying to make a case. The judge will dismiss the case quickly. Good luck trying to prove that this "crime" took place in South Carolina in the first place. Sure, they could do it, but the cost would be ridiculous, particularly when considering the offense. And would you want to be one of the witnesses to testify that Phelps was smoking pot in your dorm/frat room? Gott'a think your campus popularity would plummet. Hopefully the prosecutors office will quickly find out they'd be the laughing stock of the entire country if they actually tried to make a case of this.

  24. Nicely put. Ridiculous and comical the "investigation" but how about the media in all this. Doesnt CNN have some slogan like "news that matters"? Maybe in the future wiser humans may look back and see the true absurbity and trivialness in such webpage footer links as "All About: Marijuana Michel Phelps Criminal Investigation". How about "all about: what's wrong with America...this whole silly thing".

  25. Anonymous9:20 AM

    "Michael asked for forgiveness from the public. Unfortunately, that public probably does not include the resourceful law enforcement in Richland County South Carolina."


    Perhaps the resources you speak of should be devoted to catching these guys. Last tim eI checked, possesion was 9/10's of the law. And in this case possesion can't even be proven because there is no physical evidence to present to a court. I'm glad in these hard economic times, the sherriff of Richland County is finding useful ways to exhaust his "resources".

  26. Anonymous9:35 AM

    The crime would probably be possession of drug paraphernalia, not possession of marijuana.

  27. Anonymous9:53 AM

    a bong does not constitute drug paraphanalia. it's a water pipe. for tobacco. that's the only reason they are allowed to be sold. owning one is not against the law. the only way that would hold up is if the bong was seen in his posession and taken from his hands and then tested to see if the resin that inside of it is of an illegal substance or not. like i said earlier, could have been tobacco all through we know it wasn't. but they can't prove that. not now anyways.

  28. Anonymous10:35 AM

    In South Dakota you can get charged with paraphernalia even if there is no actual marijuana involved. I don't know about South Carolina rules though...

  29. Anonymous2:10 PM

    next thing you know, Phelps will be trading in his medals for cash so can score something even more hardcore than weed -- like a pack of Marlboros!

  30. Anonymous6:25 PM

    I believe you are wrong, T. Ballard, because residue is only one factor (but only a civil fine applies, apparently):

    SECTION 44-53-391. Unlawful to advertise for sale, manufacture, possess, sell or deliver, or to possess with intent to sell or deliver, paraphernalia. [SC ST SEC 44-53-391]

    (a) It shall be unlawful for any person to advertise for sale, manufacture, possess, sell or deliver, or to possess with the intent to deliver, or sell paraphernalia.

    (b) In determining whether an object is paraphernalia, a court or other authority shall consider, in addition to all other logically relevant factors, the following:

    (1) Statements by an owner or by anyone in control of the object concerning its use;

    (2) The proximity of the object to controlled substances;

    (3) The existence of any residue of controlled substances on the object;

    (4) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of law; the innocence of an owner, or of anyone in control of the object, as to a direct violation of law shall not prevent a finding that the object is intended for use, or designed for use as drug paraphernalia;

    (5) Instructions, oral or written, provided with the object concerning its use;

    (6) Descriptive materials accompanying the object which explain or depict its use;

    (7) National and local advertising concerning it use;

    (8) The manner in which the object is displayed for sale;

    (9) Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;

    (10) Direct or circumstantial evidence of the ratio of sales of the object to the total sales of the business enterprise;

    (11) The existence and scope of legitimate uses for the object in the community;

    (12) Expert testimony concerning its use.

    (c) Any person found guilty of violating the provisions of this section shall be subject to a civil fine of not more than five hundred dollars except that a corporation shall be subject to a civil fine of not more than fifty thousand dollars. Imposition of such fine shall not give rise to any disability or legal disadvantage based on conviction for a criminal offense.

  31. Anonymous9:52 PM

    This whole situation is insane! Have any of you been to Columbia, SC? I live in a suburb of Columbia and know first hand that what Michael Phelps did is absolutely nothing in comparison to what I see on the daily local news. A day doesn't go by without a shooting/stabbing, murder, drug bust, etc. yet the most important thing Sheriff Lott has on his plate is trying to press charges against an olympic hero? Are you serious!!!?
    I'm not making light of the topic considering he was doing something illegal but it's not worth using money that the county doesn't have to investigate a misdemeanor when their focus should be elsewhere. What would the point be of trying to prosecute him in our backed up judicial system only to send him to an overcrowded prison? What the county needs to do is utilize the same funds to raise more awareness regarding gang violence as well as domestic homicide-two serious crimes that we rank high in as the United State's worst. This is what's wrong with the world. A well behaved person will get the maximum to prove a point yet repeat offenders will get off with probation. It's stories and cases such as the Phelp's saga that make me lose faith in the justice system.

  32. Anonymous3:54 AM

    I am just impressed Phelps did not try to say that it was just tobaco in that bong