Thursday, May 23, 2013
U.S Attorney Folds Under Pressure, Backs Away from Gag Order in Medical Marijuana Case, as San Diego Mayor Bob Filner Observes and Prepares Public for Jury Nullification
San Diego, CA - San Diego’s medical cannabis community saw history in the making when the city’s Mayor, Bob Filner, showed up to a federal hearing, sat with his arm around the defendant’s elderly mother and held a press conference discussing jury nullification – calling the practice of nullifying unjust laws by virtue of acquittal verdicts “the law of the land” – and discussing his own fight against similar laws during the civil rights movement.
The federal proceeding attended by Mayor Bob Filner was a gag order hearing brought on by the U.S Attorney’s office in response to criminal defense attorney Michael J. McCabe’s speaking out in a video about U.S. Attorney Laura Duffy’s vindictive prosecution of his client Ronnie Chang. The video, filmed by San Diego Americans for Safe Access Chair, Chapter Coordinator, and former client of Mr. McCabe’s, Eugene Davidovich can be viewed here: http://www.youtube.com/watch?v=rR-dLMCqXtc&list=UUcFGz3C1GcFnp7yOIp0K8yA&index=14.
In the original motion to gag Mr. McCabe, the U.S Prosecutor, Paul Starita, requested that not only the McCabe video be removed from the San Diego Americans for Safe Access website but that the San Diego ASA- run “Free Ronnie Chang” Facebook page be wiped from the Internet as well. Mr. McCabe is a supporter of SDASA but has no jurisdiction over the Chapter’s internet activities.
The gag order motion was heard on Monday, May 20th 2013, before Judge Michael Anello in Dept. 3A of San Diego’s federal courthouse. In beginning his argument for the gag order, Starita shied away from the term “gag” in favor of the less oppressive request to simply require that he and Mr. McCabe follow the local rules of conduct by not “trying the case in the press” - a sharp departure from Starita’s earlier demands.
In a well thought out argument, Heather Beugen, arguing on behalf of Mr. McCabe, pointed out that the rules of conduct of the American Bar Association (Rule 3.6 (a)) state counsel on either side may respond to opposing party’s prejudicial statements to the press. Argument could be made that this is exactly what Mr. McCabe did in the San Diego ASA video as he responded to the bold-faced lies told by Duffy in her own statements to the press with regard to her brutal crack down on state-legal medical cannabis collectives.
The result of the hearing had attorneys for both sides stipulating to follow the local rules regarding pre-trail statements and no formal order was given by his honor.
Ronnie Chang, a former medical cannabis collective operator and victim of San Diego District Attorney and failed Mayoral candidate Bonnie Dumanis’ 9/9/09 raids, sat through the hearing in prison garb next to Mr. McCabe, while his mother Carmen Chang, was seated next to Mayor Filner in the galley. Mrs. Chang could barely take her eyes from her son, so distraught was she to see her boy so long (9 months) in custody. It was a heart-wrenching sight and not lost on our Mayor who comforted her with gentle pats and kind words throughout the hearing.
Immediately before and following the proceedings Mayor Filner, asserting the gag order did not apply to him, made himself available to speak to the press and what he had to say rocked medical cannabis activists state-wide. His actions garnered the attention of FIJA.org (Fully Informed Jury Association) the nation’s largest juror education project who later thanked the Mayor and local activists in a statement on their website: http://fija.org/2013/05/21/san-diego-mayor-filner-urges-jury-nullification/.
Mayor Filner voiced so many brave, stirring statements, frankly it’s hard to pick a favorite. At one point when asked whether it was the Mayor’s place to interfere in federal law, Filner replied “Making it clear to the federal government that we object to this persecution is what leaders do,” calling Ronnie Chang a fine patriotic citizen and flashing a compassionate smile at Mrs. Chang who stood with him in the interview outside the courthouse.
The public is encouraged to watch the video, filmed by SDASA Vice Chair Marcus Boyd, of just a portion of what May Filner had to say here: http://www.youtube.com/watch?v=uCn8M_Xz8mU&list=UUcFGz3C1GcFnp7yOIp0K8yA&index=1
Our Mayor is no stranger to activism, growing up in Pittsburgh, his parents were union organizers and once entertained the great Dr. Martin Luther King Jr. in their home. The young Bob Filner was so taken with King’s philosophy of non-violent civil action it moved him to join the civil rights movement in Mississippi at the age of 18.
As a Freedom Rider, our Mayor was arrested in 1961 and spent two months in a secluded cell along side the likes of Stokely Carmichael and John Lewis. The case against the Freedom Rider activists was eventually overturned by the U.S. Supreme Court. The Court also overturned the laws for racial separation.
In Filner's own words he says "I've never been a passive person. I've always felt that, if you think something should be changed, it's your responsibility to actively pursue that change." Which is likely why he made this statement in a press announcement several days before the hearing; “In cases like these, where Ronnie Chang will face a jury of his peers, jurors may be faced with decisions about unjust laws. There is a mechanism for the peoples’ will to prevail. It is called jury nullification and holds that jurors have a right and even a duty to vote their conscience if they feel the government is engaged in injustice. In voting to acquit victims of unjust laws, jurors cannot be punished for their verdicts.”
Now, as a teenager I don’t know where my own head was but shamefully I wasn’t fighting for the rights of downtrodden citizens. I admire this man greatly and even more so when he took up the cause of Ronnie Chang and the implications jury nullification would have in the fight for states to implement the compassionate use of medical cannabis.
Mayor Filner knows what cannabis activist have come to realize, this battle will end when the last arrest is made because the last prosecuting body can no longer seat a jury of 12 people ignorant enough to convict a fellow citizen for their choice in medicine or, in the words of Graham Hancock, their right to be sovereign over their own consciousness.
Jury nullification has a rich history in the U.S. as evidenced by this quote from Founding Father Alexander Hamilton: “That, in criminal cases, nevertheless, the court are the constitutional advisers of the jury, in matters of law who may compromit their consciences by lightly or rashly disregarding that advice; but may still more compromit their consciences by following it, if, exercising their judgments with discretion and honesty, they have a clear conviction that the charge of the court is wrong.”
Alexander Hamilton, from his argument in People v. Croswell, 3 Johns. Cas. 336 (1804).
We can expect much more from our Mayor and from the bottom of my heart, thank you Bob Filner for your lion heart and, in the words of your staff, your penchant for “Always doing what you feel is right.”
More articles on this event:
Saturday, May 18, 2013
Who: Federal defendant Ronnie Chang and his atty Michael J. McCabe Esq.
What: Gag Order Hearing in Federal Medical Marijuana Case
Press Conference with Mayor Bob FilnerWhen: 2:00PM - Monday, May 20, 2013 Mayor's Press Conference to Follow
Where: Dept. 5, on the 3rd Flr. of the San Diego Federal Courthouse,
940 Front St. at Broadway, San Diego, CA, 92101
Ronnie Chang is a state legal medical cannabis patient, an alleged former collective operator and victim of the 9/9/09 raids on cannabis collective in San Diego County. A widespread and brutal attack on legal cannabis patients, the raids were part of a joint effort by the federal Drug Enforcement Administration and San Diego District Attorney Bonnie Dumanis to senselessly destroy the public safety collectives provide the community.
Presumably in retaliation for fighting a law suit the City of San Marcos filed against Mr. Chang’s collective, the state charges in his case were dropped and he was charged federally. He now faces over 60 counts involving the operation of his state legal medical cannabis collective.
Mr. Chang had been out on Federal bond but last year his bail was revoked and he has been in custody awaiting trial ever since. His ailing mother whose care he was responsible for has been struggling to maintain her health and avoid eviction from her residence. Without Mr. Chang’s help, it has been difficult for Mrs. Chang.
Showing great leadership, San Diego Mayor Bob Filner has taken up the issue of safe access to medical cannabis in the city and since he was elected in November has vocalized his support and made himself available to advise the medical cannabis community.
Upon learning of the Chang case, Mayor Filner spoke with Terrie Best, San Diego Americans for Safe Access Court Support Coordinator and issued the following statement on Thursday, May 16, 2013. “In cases like these, where Ronnie Chang will face a jury of his peers, jurors may be faced with decisions about unjust laws. There is a mechanism for the peoples’ will to prevail. It is called jury nullification and holds that jurors have a right and even a duty to vote their conscience if they feel the government is engaged in injustice. In voting to acquit victims of unjust laws, jurors cannot be punished for their verdicts.”
Terrie Best points to a website, www.Fija.org (Fully Informed Jury Association) where the public is encouraged to read about jury nullification, its history and why our forefathers set up the jury of twelve peers trial system in order to protect against tyranny of government.
The Mayor will speak at a press conference in front of the Federal Courthouse directly following the gag order hearing on Monday at 2pm. All press and medical cannabis patients are encouraged to attend.
For more information please contact:
Terrie Best, San Diego ASA Court Support Coordinator - firstname.lastname@example.org
Articles on this case:
Thursday, May 16, 2013
By Terrie Best – San Diego Americans for Safe Access Court Support Coordinator
San Diego, CA - Robert “O.J.” Hudson is a forty-something medical cannabis patient who suffers from a host of sleep disorders leaving him debilitated and looking for non-chemical answers to his conditions. Mr. Hudson has found the limited side-effects of cannabis tolerable and the plant to be of great benefit in treating his sleep apnea, restless leg syndrome, insomnia as well as several other medical conditions. Mr. Hudson lives with two other medical marijuana patients.
On December 6, 2012, a SWAT- style raid was conducted on the Bay Park home where Mr. Hudson lives. 20 Narcotics Task Force agents infiltrated the residence, found growing cannabis, confiscated the medicine and all three patients were subjected to DEA tactics of intimidation and arrested.
It appears that a major factor in the government securing a search warrant was a DEA agent’s surveillance of a hydroponic store.
All three patients are out on bail and Monday, May 13, 2013, endured a preliminary examination of the evidence against them. Thankfully, the three victims of our federal government’s interference with state law and San Diego County District Attorney, Bonnie Dumanis’s disregard of state law are represented by an excellent legal team. Bahar Ansari is defending Mr. Hudson. Melissa Bobrow and Kimberly Simms represent the other two defendants.
The exam began at 10:00AM in Department 47 of the San Diego Superior Courthouse at 220 W. Broadway, before Judge Richard S. Whitney.
While the case will be tried in state court where defendants can avail themselves of California’s medical marijuana defense, the San Diego County Deputy District Attorney, Deborah LaTouche’s two witnesses were DEA agents attempting to testify using the federal contention that cannabis has no medicinal value.
LaTouche’s first witness, DEA Special Agent Terry Ann Discoll was sworn in and gave testimony to having a mere ten hours of marijuana training which she received during her initial DEA academy training. Of course none of this training was medical cannabis related. Agent Driscoll did admit that participating in Group Three of the San Diego Field Division to eradicate cannabis had exposed her to more cannabis grow operation eradications than in her entire 20 years of law enforcement. This testimony solidifies the belief that the federal government is dedicated to overturning the will of California’s people who voted in favor of medical cannabis use in 1996.
Driscoll’s testimony called attention to the three small grow areas in the home, which she alleged contained 74 plants in various stages of development, several bags and some jars of dried cannabis. However, in the cross examination by defense counsel, Driscoll was unable to differentiate between useable medical cannabis, clones and trim, saying “marijuana is marijuana and there is no such thing as medical marijuana.” Much of her testimony on cross consisted of statements such as “I am not an expert” and “I have no experience in medical marijuana.” Driscoll was clearly rattled at questions about the three medical cannabis doctor recommendations found at the home. She did not know whether the clones on the premises were checked for root systems to determine if they were actually viable plants or simply branches stuck in grow medium. Finally, Driscoll ended with the telling statement, “I don’t know, I only participated in the eradication.”
The three defendants are charged with cannabis cultivation and possession with intent to sell but the DDA LaTouche’s second witness, DEA Special Agent Justin Faw said nothing to prove indication of sales. Faw pointed out that a scale on the premises indicated sales and the quantity of cannabis did as well. Even though Faw professed to training in medical cannabis via the California Narcotics Officers Association, his cross examination by Ms. Ansari revealed that he was ignorant of the fact that various strains help various conditions and of the common practice of weighing dosages (which would explain the scale). Additionally, in a comical assertion Faw indentified a small grinder commonly used to cut up flowers for easier joint rolling and claimed it was used to make powdered cannabis; saying clearly that was indication the three defendants were selling cannabis.
The defense’s job was made much more difficult due to the fact the evidence was housed out-of -reach by any but two DEA approved forensic companies and could not be viewed by the defenses’ own expert witness, William Britt. The defense was forced to use Utica Toxicology to evaluate the medical cannabis evidence last week. Strangely the Utica representative did not have a scale sensitive enough to weigh anything less than a pound and there were serious questions about weight counts, how the plants and dried flowers were weighed and the accuracy of any of the plant material weight.
In the defense cross examination of Faw, the agent seemed desperate to evade questions posed to him by Bahar Ansari who did a fantastic job of pinning him down. Ms. Ansari was successful in eliciting testimony that no indications of sales were shown during months of surveillance of the premises, no pay and owe sheets were found and no practical cannabis packaging was found beyond what currently held the patients’ personal cannabis.
Agent Faw’s testimony as regards medical cannabis was so flawed that defense attorney Melissa Bobrow moved to strike his entire testimony from the record based on People V Chakos which reversed a conviction, reading “Nowhere in this record do we find any substantial evidence that the arresting officer had any expertise in differentiating citizens who possess marijuana lawfully for their own consumption, as distinct from possessing unlawfully with intent to sell.” Although Judge Whitney denied the motion for this move to strike, from what he called a probable cause hearing, the judge indicated the motion might have merit at trial.
Late in the day, defense expert witness William Britt took the stand. Mr Britt, a childhood polio survivor and Founder of The Association of Patient Advocates is a medical cannabis patient himself. He spent 20 minutes explaining his qualifications as an expert witness to medical cannabis yields, dosages and cannabis grow operations. Listing the multitude of seminars, trainings, courtroom testimony and evidence reviews totaling in the hundreds he was able to explain the indoor grow at the residence. He led the court through the vegetative and flowering process, and explained the cloning process and nursery elements of a grow operation.
Mr. Britt had viewed pictures and a video of the evidence earlier that day. Mr. Britt determined that of the 74 plants, only six were mature with buds. Mr. Britt also explained why individual patient growers might grow different strains for different ailments explaining the need to package separately, a circumstance the prosecution obsessed over as indication of sales.
Mr. Britt’s testimony lasted the rest of the afternoon and the preliminary exam had to be continued into Tuesday, May 14. Mr. Britt resumed his testimony, and was then cross examined by LaTouche.
Deborah LaTouche has a history of crushing losses in medical cannabis cases. Last year she was reprimanded by Judge Laura Parsky for refusing to look at exculpatory evidence in the Dexter Padilla case. The Padilla case resulted in a hung jury and when LaTouche expressed intent to re-file charges, Judge Parsky shot her down saying LaTouche bordered on ‘disingenuous’ in the way she presented her arguments in the case. Judge Parsky then dismissed the Padilla case in the interest of justice - a rare move for a judge and a humiliating moment for LaTouche.
Unfortunately this defeat did little to reduce LaTouche’s rabid courtroom persona. In her cross examination of Mr. Britt, she repeatedly badgered him about his qualifications and asked him if he had smoked cannabis before taking the stand. LaTouche also demanded to see Mr. Britt’s notes he had taken with him to the witness stand. In her closing argument, she repeatedly misstated the law under the Compassionate Use Act and the Medical Marijuana Program Act. Mr. Hudson’s attorney, Ms. Ansari was quick to point out LaTouche’s erroneous statements to Judge Whitney.
After both sides completed their closing arguments, Judge Whitney put off his decision until Wednesday, May 15 in order to review the evidence and read the case law the defense had presented. On Wednesday, we were all hopeful that the ordeal of these lawful citizen patients would be over, but unfortunately Judge Whitney bound the three over for trial. To his credit, his honor recognized this case as a close call and repeatedly insinuated that the prosecution would not have an easy time at trial. He recognized what we all saw, that the counsel for the three patients conducted a stellar defense and LaTouche has her work cut out for her in presenting this case before a jury of twelve. It is clear she does not have a case and Judge Whitney, though he found probable cause, did not seem at all convinced the case would result in conviction.
This case illustrates San Diego District Attorney Bonnie Dumanis’ refusal to follow state law and her penchant for making the procedure the punishment as regards medical cannabis patients.
The trial is tentatively scheduled for August 29, 2013 and all are encouraged to stand with O.J. Hudson and his co-defendants as they fight for the rights of all medical cannabis patienst. When asked how he felt, O.J. admitted it hurt to be persecuted for his choice of medicine, however he feels that seeing the case through is the right thing to do.
Tuesday, May 14, 2013
DRAFT MARIJUANA ORDINANCE SENT TO MAYOR, CITY COUNCIL
On April 23, the City Council provided direction to the Mayor and City Attorney with respect to medical marijuana regulation and enforcement. Among the directions to the City Attorney’s office was to “draft a ‘land-use’ ordinance on medical marijuana nearly identical to 0-20043 (Passed on April 27, 2011)” with certain listed changes.
The attached packet of information, including a draft ordinance per direction from the City Council, was sent to the Mayor and City Council on May 13.
Included within the attached packet is the Resolution adopted by the City Council on April 23. Exhibit “A” to that Resolution includes the specific directions to the Mayor and City Attorney. The last two pages of the packet are part of the Resolution and list those specific directions and requests.
As discussed in the last two pages of the packet, the next steps involve action by the Mayor involving a study, vetting of the draft ordinance by listed community groups, identifying the City department(s) responsible for issuing permits, developing a fee structure, analysis of potential zoning impacts and docketing the ordinance.
Our office will provide a memorandum of law on the various legal issues raised as the process moves forward.
Friday, May 10, 2013
We are pleased to announce a new location for our chapter’s May meeting. Join patients, advocates, collective operators and concerned citizens on Tuesday, May 14th from 7pm - 9pm at Giovanni's Restaurant located at
9353 Clairemont Mesa Blvd. San
Diego, CA 92123
I’m also very excited to announce that Lanny Swedlow from
will be joining us at the May
meeting. Lanny is one of the plaintiffs in the recent Riverside Riverside case and will discuss the impact of the court
ruling allowing cities to regulate dispensaries including adopting outright
At Tuesday’s meeting we will also discuss efforts for state wide legislation and recent bills introduced at the State Senate and Assembly, that if passed would establish new medical marijuana regulations including replacing the existing collective and cooperative state wide system of distribution with commercial cultivators regulated by the CA department of Alcohol Beverage Control.
Also find out the steps for the City of
and regulations that the City Council is now
working on. San
If you are interested in helping influence, craft, and be involved with safe access will look like in
WHAT: May SD ASA Chapter Meeting
WHEN: 5/14/2013 - 7:00pm-9:00pm
WHERE: Giovanni's Restaurant -
For more information visit www.SafeAccessSD.org or email email@example.com
Follow San Diego ASA on twitter: @ASASanDiego