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Attorney Mark Geragos on Robert Downey and defending drug offenses
(CNN) -- Actor Robert Downey Jr. pleaded not guilty Wednesday, December 27, to drug charges stemming from his November 25 arrest at a luxury hotel in Palm Springs, California. The actor, who has appeared in films such as "Chaplin" for which he received an Oscar nomination, and on "Ally McBeal" in a recurring guest role is charged with possession of cocaine, felony possession of diazepam -- more commonly known as Valium -- and being under the influence of a controlled substance. If convicted on all three counts, he faces a maximum sentence of four years and eight months in state prison.
Mark Geragos is a criminal defense attorney. He is perhaps most well known for representing Susan McDougal. Geragos has a long history in defending drug cases. He is a partner in the well-known Geragos and Geragos Law Firm.
Chat Moderator: Thank you for joining us today, Mark Geragos, and welcome.
Mark Geragos: Hello and thank you for having me today. It's a pleasure to be here.
Chat Moderator: How do you defend a client that has a drug problem?
Mark Geragos: Generally, like any other client. You examine whether or not the prosecution can make their case. In drug cases, one essential defense is the legality of the search or seizure. So inevitably, nine times out of ten, there will be a motion to suppress the evidence based upon illegal search or seizure. There also will be, because of the numerous scandals with police in narcotics enforcement, a need to investigate who made the arrest and to determine if they have a history that's either good or bad in terms of their enforcement of the law.
Question from SCRandy: Was this a legal seizure?
Mark Geragos: The Downey case appears to be fraught with problems. First, you have an anonymous tip. Under California law, these tips are suspect. When you combine this with the tip containing misinformation, there appears to be a challenge to the legality of the search.
Question from CharliGirl-CNN: Will Downey be treated differently because he is a public figure, or will they try to make an example of him so to speak? How would anyone else's case be handled?
Mark Geragos: I think you've seen today at the arraignment that he was treated differently. His lawyers asked for a continuance of the arraignment, which is standard operating procedure and routinely granted by most judges in the state. Because of his notoriety, he is being treated harshly. You can see that in that the motion to continue was denied.
Chat Moderator: What happens on January 29?
Mark Geragos: Between now and January 29, a probation officer will evaluate his eligibility and suitability for various programs, as well as a counselor evaluating his suitability. While that is happening, the defense talks with the prosecutor and will undoubtedly raise issues of the legality of the search to determine whether they can agree on a disposition of the case, which could range from a drug treatment program to a term of jail, all the way up to, say, prison.
Question from Haley-CNN: Does he deny using drugs this time or is he denying those in the room were his?
Mark Geragos: This time, according to published reports -- police reports are sealed -- he has denied the drugs were his, which parenthetically would appear to fit in with the anonymous tip that gave misinformation and supports that the drugs were not his.
Question from JLCB: Was he tested for drugs in his blood?
Question from Haley-CNN: Was there a toxicology drug screen done at the time of his arrest?
Mark Geragos: There was not, or it has not been released. It would not be unusual for there to be no tests, because they were originally called out to the scene for a charge of possession, and not for a charge of under the influence. Generally, the testing or the offering of the test is in conjunction with the charge of being under the influence. If he was in a hotel room, the prosecution would be hard pressed to make a case of being criminally under the influence, since he was not in a public place.
Question from Haley-CNN: Is he subjected to random drug screens since his release from prison?
Mark Geragos: Yes. Initially, when released, he was subject to drug screening. That ends as soon as any term of parole ends.
Chat Moderator: Should there be special programs for people who commit crimes due to addictions?
Mark Geragos: If you had special programs for people who commit crimes due to addiction, you would eliminate 85 percent of the criminal justice system. Eight to nine cases in the criminal justice system now are involving drugs. This would be a very enlightening idea.
Question from ShayAnderson: Mark, is it possible that Mr. Downey could get treatment instead of jail?
Mark Geragos: Absolutely. I think it is not only possible. I think it's likely. Under California law, as recently enacted under Proposition 36, that's exactly what should happen to him.
Question from Jam: This is not Mr. Downey's first offense, why should he get another chance?
Mark Geragos: Under the new Proposition 36, the voters of this state have determined that even after a first offense -- or one break, so to speak -- we recognize this is a disease that should not be treated as a crime.
Chat Moderator: How might the case be different in another state? How do California drug laws compare to the rest of the nation?
Mark Geragos: California has now joined Arizona with some of the most progressive drug laws. If this was being tried in a southern state, Robert Downey Jr. would be looking at prison time. In fact, in Texas it's likely that he might never see the light of day again.
Chat Moderator: Drug charges are now being treated differently from other criminal charges. Are we moving to the point where drug use will not be a crime?
Mark Geragos: Yes, we started moving to that point in the early 80s when we decriminalized small amounts of marijuana and allowed diversion programs for people on a first offense of under the influence of cocaine, or with possession of what are criminally called "harder drugs."
Question from CharliGirl-CNN: You mentioned that misinformation was given during the anonymous call. Given that, how hard will it be to prove the case, since he has pleaded not guilty?
Mark Geragos: The judge could make a preliminary determination that the prosecution can't use the evidence. That's done in the context of a motion to suppress, and then if not granted, the prosecution will not be able to prosecute the case.
Question from SCRandy: What do you know about Mr. Downey's attorney?
Mark Geragos: He's a well thought of lawyer in that county, and is assisted by the appellate lawyer who won his last case.
Chat Moderator: Do you have any final thoughts to share with us?
Mark Geragos: Thank you for having me.
Chat Moderator: Thank you for joining us today.
Mark Geragos joined the chat via telephone from Los Angeles. CNN provided a typist for Mark Geragos. The above is an edited transcript of the chat, which took place on Wednesday, December 27, 2000.
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Robert Downey Jr. free after pleading not guilty in drug case
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