Why is Brenice Lee Smith Still Behind Bars, Awaiting Trial?

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Nick Schou
Brenice Lee Smith at his first court hearing
A man accused of of membership in the so-called "Hippie Mafia"--and who has spent the past three decades living a peaceful, possession-free life in a Nepalese monastery--has now been languishing in jail for more than a month.

Brenice Lee Smith was arrested at San Francisco International Airport on Sept. 26 after four decades on the run. A founding member of the Orange County-based Brotherhood of Eternal Love, which formed in 1966 with the intention of promoting peaceful transformation of self and society through consciousness expanding drug experimentation, Smith now stands charged with smuggling 100 pounds of hashish from Afghanistan to California in 1968. After returning from overseas with the intention of moving his Nepalese wife and daughter to the United States, he was extradited from the Bay Area to Orange County's Main Jail.

Many observers who commented on the Weekly's initial blog post, which was picked up by the OC Register, Associated Press and UPI, have expressed shock and amazement that authorities have the time and resources to punish a man who clearly returned to US soil voluntarily and who by all accounts has dedicated himself to peace. Part of the explanation may be that the prosecutor handling the case, Jim Hicks, is the son of DA Cecil Hicks, who presided over the 1972 conspiracy case against the Brotherhood, and who is said to be retiring next March, meaning this case could be his last hurrah.

In the latest developments, Smith had an October 23 hearing in front of Orange County Superior Court Judge William Froeberg, who happens to be married to the chief of the District Attorney's sex crimes unit. Froeberg denied a request by Gerardo Gutierrez, Smith's Chicago-based attorney, to reduce Smith's bail from $1.1 million to $50,000, thus ensuring that his client will remain behind bars for the time being. The next hearings in the case are set for November 7 and December 7. The latter date, Gutierrez said, represents his "drop-dead" deadline for filing a motion to have the case dismissed in the interest of justice.

"Come hell or high water, by December 7, I am going to push this for trial," Gutierrez said. "It will become very apparent that they can't play a shell game anymore." Gutierrez added that the original conspiracy indictment against the Brotherhood was "immaturely drafted," noting that one of the counts actually charged Smith and other Brotherhood members with the supposed crime of living in Laguna Beach. Although Gutierrez has yet to file a motion to dismiss the case, his unsuccessful motion to reduce bail lays out a detailed argument for why that should happen.

First there's the question of whether Smith poses any threat to society.

Here's the answer:

"During his years in exile from these charges, Mr. Smith has lived a sedentary life in the mountainous terrain of Kathmandu, Nepal, where he was carrying on a meager existence as a practicing Buddhist monk, under the tutelage of Kalu Rinpoche, a meditation master, scholar and teacher, one of the first Tibet masters to teach in the West," the motion states. "Smith, remaining in Kathmandu for the petter part of the 80s, 90s, and the first decade of the 21st century, lived a monastic existence where he learned the teachings of Vishnu, the Buddhist practice of philosophical actualization and thee teachings of the Bodhisvatta path, became reborn as a spritual Yogi, or teacher of the path of enlightenment. For our purposes, he became a different person, making correct decisions about his life, marrying a Nepalese woman and fathering a child who is now in her 20s and more importantly, prompting him to return to his home town in California, where authorities were waiting to arrest him."

Second, there's the question of how serious Smith's alleged crimes really were.

On that note, consider the fact that, at the time, smuggling hash could actually get you a life sentence in prison. Possessing merely a joint or two could get you a year in jail. As Gutierrez argues, however, things have changed a bit since then. Nowadays, you can be busted with up to an ounce of marijuana and face no stiffer penalty than a $100 fine--and that's assuming you're one of the dwindling numbers of people who don't have a doctor's note and a state ID card telling the cops to keep their hands off your weed.

Finally there's the question of whether justice would actually be served by punishing Smith, who is now 64 years old.

"Mr. Smith has no ties to any drug activity or any former members in this case," Gutierrez wrote. "Indeed, of the 29 other defendants named in the indictment, ore more precisely the 12 or so individuals specifically alleged to have directly participated with Mr. Smith, all of [them] had their cases dismissed--with prejudice," meaning they can never be recharged.

For his part, Smith had this to say at his Oct. 23 hearing, speaking over the objections of Gutierrez, directly to the judge, apparently hoping he could somehow break the spell of inanity that has pervaded this case since it escaped from the ashbin of history a month ago. "Well," he said. "I've been living in a monastery for the past 30 years. Ten years with in the Lama's house and 20 years in the monastery...I just can't wait to get back to my family."

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