By Terrie Best, San Diego Americans for Safe Access
|Gasper's supporters in court. Picture courtesy of Adela Falk|
With San Diego Americans for Safe Access (SDASA) board members and other patient advocates behind him, Benjamin Gasper was in court again on Thursday of last week, this time for a 995 motion hearing before Judge Howard Shore, a notoriously anti-medical marijuana Judge who happened to be filling in that day for another justice who typically presides over 995 hearing.
Benjamin’s struggles began in 2009 when, with two other seriously ill medical marijuana patients, he chose to collectively cultivate medicine for his personal needs, and fell victim to a questionable search and subsequent arrest.
A preliminary hearing took place some weeks ago at which time Benjamin was bound over for trial by Judge William H. Kronberger. Thursday’s 995 motion, a second bite of the apple, was filed to try to show another Judge that the original Judge’s decision to bind the case over for trial was erroneous.
At the 995 hearing defense attorney Melissa Bobrow contemplated introducing a challenge to Judge Shore and getting a different Judge assigned to the hearing in light of the fact that it was Shore who denied Jovan Jackson a medical marijuana defense ultimately leading to his conviction which is currently on appeal. While Judge Shore certainly has proven to be unfriendly to compassionate use and void of knowledge on these emerging laws, Ms. Bobrow wisely saved her one judicial challenge for a more strategic time and went ahead with the hearing.
In her arguments, Ms. Bobrow asserted that clearly the prosecution’s case, which includes possession for sale, is strictly about plant count and contains no convincing evidence to indicate sales. The 133 plants in and of themselves were not enough to charge her client with sales. She referred to testimony from the preliminary hearing in which John Joseph Tangredi, the officer who invaded Benjamin’s medical garden, admitted there were no scales, pay / owe sheets, or even a baggie to indicate intent to distribute.
Ms. Bobrow also pointed out testimony from the other patient members of Benjamin’s collective that the cannabis was intended to make medicine to be consumed in edible form, which requires more plant material. She further argued that Tangredi was not qualified to predict plant yields, evidenced by his preposterous statement that any one plant regularly yields up to two pounds. With this in mind, Ms. Bobrow argued, not enough evidence existed nor was presented to justify the preliminary hearing Judge to bind Benjamin over for trial.
Knowing how Judge Shore would rule in this matter ahead of time, DA Dumanis’ office decided not to even argue the case, their statement was short and consisted of a basic “yes there was enough evidence”, given by shaky-voiced intern Kate O’Reiley with the ever-tough Steve Walter (DA’s Chief Patient Eradicator) by her side.
Predictably, Judge Howard Shore sided with the prosecution in this case and denied Bejamin Gaper, a legal medical marijuana patient, his 995 motion hearing.
Benjamin faces a readiness conference at 8:30AM on August 18 in Department 31.
In a statement from Benjamin’s former attorney Bahar Ansari Miller, 995 hearings rarely go in favor of the defendant.
Ms. Ansari Miller was successful in getting Benjamin’s previous charges dropped last year in her own 995 argument because she was swift enough to point out a verbal error by the judge in procedure. Out of sheer bias San Diego District Attorney Bonnie Dumanis’ office re-filed charges in Benjamin's case and are prosecuting him again.
For information on SDASA court support efforts please visit our website at www.SafeAccessSD.org or contact Terrie Best, San Diego ASA Court Support Coordinator - firstname.lastname@example.org
Original Story - May 2010
Cultivation Charges Dismissed - June 2010
Charges Re-filed - May 2011