On October 21, 2014 Reason.com published "Sex, Spice, and Small-Town Justice: The Purple Zone Raid," my article and video that showed how "a rogue prosecutor makes the drug war personal."
The next day, Rod Ponton, the prosecutor mentioned in the video and article, sent us the letter below, which he also posted as a comment on this Facebook post.
My response:
1. Rod Ponton is incorrect in stating that Ilana Lipsen pled guilty to three felonies. She pled guilty to one felony, which received a deferred adjudication, while the other two felony charges were dropped.
The language in her plea papers stating that the plea is "free and voluntary" is boilerplate. The question of whether Lipsen felt she had any choice other than to take a plea deal is one the article leaves up to interpretation. Previous plea deals offered to Ms. Lipsen all included multiple years in jail. A deferred adjudication, where the prosecutor gets to claim a victory but the defendant avoids prison and the charges against her mother were dropped, is likely the best deal she was ever going to get without incurring more financially crippling legal fees.
2. According to documents provided to me by Ponton himself, the three substances deemed chemical analogues of controlled substances were seized from The Purple Zone in 2012. According to the reporting of Scot Briggs in the Alpine Avalanche and confirmed by Lipsen's lawyer, these only became illegal in Texas once they were banned federally by the Synthetic Drug Abuse Prevention Act, which was signed into law by President Obama in July 2012, but not in effect until January 2013.
As Briggs reported:
Reading the list of substances listed under Penalty Group 2-A of the Texas Health and Safety Code is a little like trying to decipher the ingredients in a Twinkie—ethylamine, phencyclidine, ibogaine, methylenedioxy amphetamine—but the three chemicals listed on the search warrant, MAM-2201, XLR-11, or UR-144 are not there by name. These chemicals did not become controlled substances until President Obama signed the Synthetic Drug Abuse Prevention Act (SDAPA) in July 2012. The first time the Purple Zone was searched and samples seized was on March 23, 2012, before these substances were controlled.
The only way Ponton can justify the statement "these drugs are illegal under Texas law in effect at the time of the searches" is by declaring the substances illegal per the Controlled Substance Analogue Enforcement Act of 1986. A major portion of the article described the problematic nature of this law, and how its subjectivity leads to people being prosecuted for possessing products they believe to be legal.
3. Ponton is correct to point out that he was not the district attorney in 2012, though nowhere in the article did I state that he was. It is worth noting that despite being raided and arrested in 2012, Lipsen was not indicted until Ponton took office in January 2013. Indeed, she was one of the first people indicted after he took office.
4. Ponton is correct that the May 2014 "Purple Zone raid" was a federal effort and Ponton did not file any charges against Lipsen as a result of this raid. However, members of local law enforcement, including the Alpine Police Department and Brewster County Sheriff's Office, participated in the raid.
Most crucially, the Drug Enforcement Administration (DEA) used a Brewster County search warrant, ordered by Ponton, as justification for searching The Purple Zone.
5. See my rebuttal to the second point.
6. Reason TV presented Lipsen's characterization of anti-Semitic abuse by some in the town of Alpine as her own words and cited other sources who attested to the unpopularity of Ilana Lipsen and her store among a significant portion of the town's populace.
7. Factually, Lipsen has not been found guilty. She entered a guilty plea as part of a deferred adjudication, which means that she has been convicted of no crime and will remain so provided she satisfactorily completes a probationary period.
8. Ponton is entitled to deny Lipsen's claim that they had a sexual relationship. However, Ponton's statement contradicts itself, unless he is claiming a member of his family told him that Lipsen denied having sex with him after the article in question was published. Lipsen claims the exact opposite, that she had told Ponton's sister that they had had a previous sexual relationship. Several sources in the town of Alpine told me Ponton's and Lipsen's past involvement was common knowledge.
9. This is Ponton's opinion.
10. Lipsen is not a felon, as she has not been convicted of a felony. Regarding whether Ponton was available to speak with me about the case, he initially agreed to speak with me before reneging.
Further, prosecutors are not barred from commenting on pending criminal cases, but according to Section 3.07 of the Texas Disciplinary Rules of Professional Conduct, lawyers are barred from making statements with a "substantial likelihood of materially prejudicing an adjudicatory proceeding."
Though he refused to speak with Reason TV, Ponton had already commented on the case in the form of a press release in which he declared products seized in the 2012 raid to be "Spice" and described them as "worse than meth." This press release helped Lipsen's attorney to secure change of trial venue out of Brewster County, after arguing that Ponton's inflammatory rhetoric had contributed to tainting the jury pool, which would have made a fair trial impossible.
Despite listing 10 points, the only major issues Mr. Ponton takes with my reporting are denying his alleged sexual involvement with Lipsen and arguing that the substances seized in 2012 were illegal. As previously stated, the subjective enforcement of chemical "analogues" is problematic, which was a significant issue explored in the original article.
Original video here:
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