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.
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.