wow, drug laws are... words fail

[Heretic.Ape.]

I've Got Nothing Here
http://www.reason.com/blog/show/121630.html
Radley Balko | July 27, 2007, 10:09am
This story is so bizarre and outrageous, I can hardly believe it's true.
Tampa's Mark O'Hara was released from prison this week. He was serving a 25-year sentence for possession of 58 Vicodin tablets. Prosecutors acknowledge he wasn't selling the drug. They acknowledge that he had a prescription for it. At his trial, two doctors testified they'd been treating O'Hara since the early 1990s for pain related to gout and an automobile accident.
But prosecutors inexplicably brought drug trafficking charges anyway, because as the article explains, "Under the law, simply possessing the quantity of pills he had constitutes trafficking."
This is simply stunning. The man was sentenced to 25 years for possessing 58 pills for which he had a legal prescription.
Prosecutors then argued—and the trial court agreed—that the jury was not allowed to consider the fact that O'Hara had a prescription because Florida statutes governing painkillers don't allow for a "prescription defense," as if that rather crucial fact were some mere technicality those ACLU-types are always using to get criminals off the hook.
I suppose we should expect little from the state that put Richard Paey away for 25 years. But this is insanity. My guess is that O'Hara's prior drug conviction (in the 1980s) and the small amount of pot also found in his truck blinded the prosecutors' and judge's discretion. Gotta' get this guy for something, right?
O'Hara is free after an appellate court rightly deemed the trial "absurd" and tossed out the verdict. Prosecutors are apparently still considering what to do next.
Given the way they've wasted taxpayer money and court time and needlessly harassed Mr. O'Hara, in a just world their "next step" would be submitting their own letters of resignation.



--------------------------------
here is the article the above comment is on:

[top]Freed man still in limbo

[top]He awaits the state attorney's decision on whether he'll be tried again on drug charges.

By COLLEEN JENKINS
Published July 26, 2007
http://www.sptimes.com/2007/07/26/Hi...ll_in_li.shtml

TAMPA - Mark O'Hara left jail without handcuffs Wednesday, two years after he went to prison and one week since an appeals court ordered him a new trial.
He was serving a 25-year sentence for having 58 Vicodin pills in his bread truck. Jurors weren't told that it is legal to possess the drug with a prescription, which he had.
The Hillsborough State Attorney's Office has not decided whether it will seek a retrial in the Dunedin man's drug trafficking case.
O'Hara, 45, said he made the 168-mile trip back from a Dixie County prison without knowing exactly why. His attorneys had alerted him of their successful appeal but cautioned that it wouldn't become final for 30 days.
Still, he figured something positive was afoot.
"They been treating me like a human," he said of authorities.
Events leading up to his release also seem to point in his favor.
Col. David Parrish, who runs the county's jails, said State Attorney Mark Ober called him late Monday afternoon with an urgent request. He wanted O'Hara brought back to Hillsborough from the Cross City Correctional Institution as soon as possible.
Prison transfers usually take a week. O'Hara's took a day.
On Wednesday morning, he appeared before Circuit Judge Ronald Ficarrotta, the same jurist who heard his trial and sentenced him to the mandatory 25 years in prison on the trafficking charge.
The hearing was scheduled so quickly that O'Hara's attorneys didn't even know about it.
Prosecutor Darrell Dirks acknowledged that the state erred in leaving out a jury instruction regarding prescriptions. He suggested O'Hara be returned to the status he had before his August 2005 trial.
O'Hara piped up, saying he had been released from jail on his own recognizance after his arrest.
Court records confirmed it. Dirks didn't object, and the judge ordered O'Hara's release.
He got to ride back to jail in a van without other inmates, he said.
That isn't typical treatment for an inmate, but neither was the 2nd District Court of Appeal ruling about his case.
Claims called 'absurd'
The opinion faulted prosecutors' claims that Florida statutes do not allow a "prescription defense" in drug trafficking cases.
Using words like "absurd" and "ridiculous," three appellate judges said the state's position would make patients with valid prescriptions criminals as soon as they left the drugstore.
Tampa airport police arrested O'Hara in August 2004 after they found the hydrocodone and a small amount of marijuana in his illegally parked and unattended bread truck.
He refused plea agreements from prosecutors before trial, one for three years in prison. Instead, jurors heard from two doctors who said they had been treating O'Hara since the early 1990s for pain related to gout and auto accident injuries.
Prosecutors did not contend that O'Hara, who went to prison in the 1980s for cocaine trafficking, sold any of the 80 Vicodin pills he had been prescribed in the eight months before his arrest. Under the law, simply possessing the quantity of pills he had constitutes trafficking.
On Wednesday, members of the State Attorney's Office continued to review the case.
"The immediate concern was to get him back and get him out of jail while they look at the case law," said Assistant State Attorney Pam Bondi.
No clothes, no money
At 1:25 p.m., O'Hara walked out the front door at the Orient Road Jail, dazed and squinting in the sunlight.
He wore a sky blue paper shirt and pants outfit, provided by the jail to inmates who don't have street clothes. He called it a "clown suit." He said he threw away his personal belongings on his way out of prison.
Salt and pepper stubble blanketed his chin. He left his razor at prison, too. A guard told him he would be back for it.
"No, I won't," O'Hara recalled saying.
He had only a rolled-up stack of legal papers. No money, no ride home.
As he tried to figure out what to do next, Parrish walked up from the parking lot. The jail administrator recognized O'Hara instantly.
"I didn't know about this," Parrish said, pointing to the awkward paper outfit. "I'm sorry. You've had enough problems."
Getting home to Pinellas County was the next one. Parrish handed him a $20 bill, then disappeared inside to call a cab.
"You can't beat that," O'Hara said, smiling.
His head felt cloudy, he said. He wasn't sure what to think of his new freedom or whether it would last.
He sold two condos, his car and his bread business to pay for the appeal. But the state took the proceeds, according to family friend Eric Mastro, to pay toward the $500,000 fine that came with his conviction.
Parrish walked back out of the jail. The cab would arrive in five minutes, he said.
When O'Hara told him how far he had to go, Parrish handed him another $40 from his wallet.

[kareena]

I think your title says it all.

[Broshious]

What boggles the mind is how in hell the jury convicted him.

I wonder why Rush Limbaugh wasn't sent away for the same reasons.

[Police Officer]

Interesting article. When sentencing is deliberated are prior bad acts considered? Things such as cocaine trafficking?

Anyway, excellent pursuasive writing. Anyone wonder about the rest of the story?

[Felonious Skunk]

Hey look at the bright side, he got a couple of sets of paper clothes, but he tossed 'em away.

Can't blame the system if he's an ungrateful twat...

Originally Posted by Police Officer

...Anyone wonder about the rest of the story?

The rest of the story? You mean the part where he was selling the Vicodin to renegade Yemeni cross-dressing terrorists so they could fund the next attack on our holy land?

[Beanfondler]

Originally Posted by Police Officer

When sentencing is deliberated are prior bad acts considered? Things such as cocaine trafficking?

Are you serious?

Person A is a "bad" person so it is it is reasonable that a law prevents a jury from hearing if the possession was legal. You'll notice that a person A's history isn't on trial, but the legality of their possession is. Anyone with even the most minor sense of what rational thought entails would immediately notice the conflict.

Now consider this... Person B is a model citizen. Person B is also prevented from showing a jury that their possession was legal.

Jury > Was the possession legal?*


*Disclaimer: Jury may not know if the possession was legal.**

**The law will only be enforced upon person A it is therefore morally sound and logic has no standing... ?

Reputation Comments on this post:

Nicely put.

[Broshious]

Originally Posted by Beanfondler

Are you serious?

Person A is a "bad" person so it is it is reasonable that a law prevents a jury from hearing if the possession was legal. You'll notice that a person A's history isn't on trial, but the legality of their possession is. Anyone with even the most minor sense of what rational thought entails would immediately notice the conflict.

Now consider this... Person B is a model citizen. Person B is also prevented from showing a jury that their possession was legal.

Jury > Was the possession legal?*


*Disclaimer: Jury may not know if the possession was legal.**

**The law will only be enforced upon person A it is therefore morally sound and logic has no standing... ?

I'm almost positive that prior bad acts are considered during SENTENCING. They aren't related to the jury convicting person A or B just what happens to them if they are convicted.

[~lostgurl~]

The Lottery More Fair Than Post-Conviction Process

By: Michael Montalvo 04/15/2002
Prisonerlife.com

The lottery is fairly decided, and the rules don't change.

Do you know the difference between a prisoner's appeal or post-conviction petition and the lottery? The lottery is fairly decided, and the rules don't change.

The long awaited en banc decision in U.S. v. Buckland in the Ninth Circuit was finally issued on January 18, 2002. It was a travesty. The case had drawn huge interest from drug war prisoners when it was first issued in 2001 and held that under Apprendi v. New Jersey, 530 U.S. 466, 490 (1999), the sentencing provisions of 21 U.S.C. ß 841(b)(1)(A) and (b)(1)(B) were unconstitutional. See U.S. v. Buckland, 259 F.3d 1157 (9th Cir.), en banc granted, 265 F.3d 1085 (9th Cir. 2001).

Just about every drug war prisoner, and most every other prisoner too, knows about the impact of Apprendi on sentencing. In Apprendi, the Supreme Court held that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Since 1970 when current drug laws were first enacted, there have been tens of thousands of people given lengthy prison sentences on "facts that increased the penalty for the crime," facts found only by a judge on the declaration of the prosecutor who relied on an uncorroborated claim by an informant or cop.

Based on Apprendi, many prisoners suffering a long sentence imposed by a judge, on facts not determined by a jury, probably thought they could get the excess time taken off their sentence. After all, the ruling is fairly easy to comprehend. As readers probably know by now, very few defendants have benefited from the Apprendi decision.

Prosecutors and 'judges who think like prosecutors' have changed the ruling from "the jury must find the facts for guilt and punishment by proof beyond a reasonable doubt" to "the jury could have found the facts for guilt and punishment, and so the error was harmless." Prosecutors and their judges have bucked the Supreme Court on Apprendi by concocting legal fictions to deny direct appeals and Sec. 2255 motions.

This column could have been written again about how to determine harmless from harmful error, retroactive decision on appeal and Sec. 2255, what works on 2255s, or the narrow path of the savings clause to file a petition for habeas corpus under 28 U.S.C. Sec. 2241. But no matter how good your appeal, Sec. 2255, or savings clause Sec. 2241 issue is, or how strongly precedent (case law) supports your claim, you probably won't win.

Notice that I use the word 'probably' in the same way you 'probably' won't win the lottery either, but you 'could' win it. Judicial decisions are in theory based on precedent of prior decisions. Judges look at the prisoner's appeal or petition and apply the law as they interpret it under the influence of all their years as prosecutors or staunch pro-law enforcement members of the political party that sponsored their judicial anointing. Plain English to most of us is not the same language to many judges.
When a prisoner reads a statute or case and it seems to apply squarely to her issue, the prosecutor will surely find the prisoner read the law wrong, defaulted by not raising it before, or cannot raise it now since it was raised before. Damned if you do, and damned if you don't.

Ninety-nine out of a hundred times the judge will rule on your petition or appeal based only on what the prosecutor misrepresented. Prosecutors have been known to fabricate a ruling to conform to what they want. Sometimes the judge's final order will look like the prosecutor's opposition brief. Other times, if the defendant's argument beats the prosecutor's, or if the prosecutor's argument was completely contrary to precedent and too embarrassing for the judge to adopt, the judge will pick up the ball and write a denial with his own pro-government reasons. Quite often the judge uses the same precedent the defendant used, but with the opposite spin and interpretation.

Within the last decade of zealous "lock 'em up" drug law enforcement, there stand a few courageous judges who issued a sound opinion for a defendant, but they were quickly brought back in line by a higher or en banc court.

In 1994, a panel of judges in U.S. v. $405,089.23 U.S. Currency, 33 F.3d 1210, 1222 (9th Cir. 1994) correctly applied Supreme Court precedent to hold that a defendant's double jeopardy right was violated when the government forfeited property and criminally prosecuted a drug case defendant in two separate proceedings instead of one. The justice department was outraged because it could not punish defendants and rob them of their assets at will in piecemeal tribunals.

The nation's top prosecutors began applying political pressure as three other circuits agreed with the Ninth, and defendants filed appeals and Sec. 2255 motions for release based on double jeopardy. Many defendants won freedom or return of their assets as prosecutors re-grouped. On petition for certiorari, the prosecutors' brief cried that drug law enforcement would be crippled by the $405,089.23 ruling if it was not overruled. The Supreme Court got the message and overruled the appellate courts, holding that such double punishment in separate proceedings was not a violation of the Fifth Amendment because forfeiture was not a 'penalty' as they had previously ruled in all earlier decisions. See, U.S. v. Ursery, 518 U.S. 267 (1996).

In 1998, a panel of judges in U.S. v. Singleton, 144 F.3d 1343 (10th Cir. 1998) reversed Sonya Singleton's drug conspiracy and money laundering conviction on the ground that the prosecutor violated the plain language of 18 U.S.C. Sec. 201(c)(2). Singleton's prosecutor erroneously offered leniency to a codefendant in exchange for 'truthful' testimony (read that as testimony that would help the prosecutor). Such a ruling applied to 99% of drug case convictions since the prosecutors routinely bribe 'rats' for testimony to win the conviction.

Based on years of personal observation and case study, it's clear to this writer that prosecutors as a group are afflicted with an obsession to win at all costs. Statute 18 U.S.C. Sec. 201 (c)(2) states in very clear language that "whoever directly or indirectly gives, offers, or promises anything of value to any person - for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial before any court - shall be fined under this title or imprisoned for not more than two years or both." Is there anything unclear about these words?

The US Justice Department was even more outraged by the Singleton decision prohibiting the bribing of witnesses to win cases than it was in $405,089.23 prohibiting the multiple punishments of defendants, including theft of all the assets that prosecutors could grab. Within ten days of the Singleton ruling, the prosecutors and 'pro-prosecutor judges' of the Tenth Circuit had the decision withdrawn, a feat they could not do in $405,089.23. By withdrawing the panel's decision, defendants could not use it as precedent for release from a conviction based solely on felons who testified for the government in exchange for their freedom.

It seems prosecutors and their loyal judges uncritically assume that US citizens are stupid, because the en banc Court reversed the Singleton panel and held that it was "absurd" to try to apply Sec. 201(c)(2) to prosecutors because they are really the "alter ego of the sovereign." Just where's the stupidity here?

In 2002, we see that the Justice Department continues to be outraged that a defendant or two might vacate or reduce a lengthy imposed sentence that was based on "facts" found only by a judge, and not by jury. Although few Apprendi decisions granted relief, those that did usually held the defendant to a maximum of 20 years. That was not enough prison time for the zealous prosecutors, and so they argued to have the court 'stack' sentences at the rehearing.

The courts obeyed the prosecutors' wishes. Buckland en banc is a great example. The en banc court denied Buckland's claim, holding that the district court could have decided to stack his punishments, and so he was 'lucky' he only got the original 324 months instead of a life sentence. The Seventh Circuit Court of Appeals has had many cases remanded from the United States Supreme Court in light of Apprendi.

Basically, the Seventh Circuit has affirmed its early denials and sent the Supreme Court the signal that they are not going to give relief to Apprendi errors. The Supreme Court in this term is going to hear three appeals on the Apprendi issue, one state murder appeal, and two Fourth Circuit direct appeals. No collateral review cases on Apprendi have been granted certiorari as this article goes to press in March 2002. The bad omen is that the prosecutors asked for, and were granted, certiorari for a defense victory in U.S. v. Cotton, 261 F.3d 397 (4th Cir. 2001).

Given all the political resistance that Supreme Court justices have felt from prosecutors and pro-prosecutor judges, the High Court might be inclined to appease the prosecutors by limiting Apprendi's constitutional authority and reach. Hopefully, the great justices will muster courage to uphold a broad application of Apprendi and the constitutional right to have the jury determine the facts for guilt and punishment 'by proof beyond a reasonable doubt.' We'll see soon enough.

Drug war prisoners filing appeals and post-conviction motions cannot assume that the prosecution or the court will apply the law fairly or impartially to them. Almost every defendant who went to trial can cite a few examples of how the court or prosecutor did something in violation of the rules or law, yet that error will surely be called 'harmless' on appeal.

What can we do? Well, like in a lottery, we stay in the game by filing appeals, motions, and petitions with hope that the courts will listen, apply the law impartially, and grant relief. But we must do more. Our families need to continue concrete political action to change the laws, reduce sentences, reinstate parole, or demand amnesty and repeal of the prohibition-era drug laws. Drug war prisoners definitely need people 'on the street' demanding release of the drug war prisoners.

We must not accept the crumbs-from-the-table outlook currently seen in proposed legislative reforms and sentencing-guideline-tinkering which offers only token relief to a few. There is clear need established for drastic, penetrating, and humane changes in the criminal justice system to reduce the torturous life-long sentences which tens of thousands of drug war prisoners carry at this moment. I cannot count the numerous fathers and mothers incarcerated for decades, or life, convicted and sentenced on hearsay, drug-less conspiracy allegations based primarily on testimony from self-interested felons being rewarded with freedom.

This is an opinion piece written by BOP inmate Michael Montalvo who is is serving a life sentence at USP Pollack.
Mr. Montalvo, who gained a law degree while in prison, assisted the claimants, "who represented themselves", in the United States v. $405,089.23 case

http://www.prisonerlife.com/articles/articleID=31.cfm

[Nagognog2]

The jury convicted him because in Florida there is a law that prevents mentioning, in front of the jury, thet the defendent HAS A LEGAL PRESCRIPTION for the drugs. All the jury is allowed to know is: here is a man. Here are the narcotic drugs seized from the man. The man cant't prove they were not in his possession. And why should he try? He has a prescription so they are legal for him to have, right? Wrong. The jury will never hear he has a prescroption. The jury will never hear that they, the jury, are not allowed to hear he has a prescription.

Enter the word: ABSURD.

[Nagognog2]

They were gonna bomb Disneyland on Vicodin!? I'm calling Pat Robertson an give him Little Bobby's college-fund right away!

[Bajeda]

This thread made me die a bit inside just thinking about the whole thing..... Poor guy.

[Nagognog2]

I hope he can write. Or knows someone who can. He's got one heck of a book waiting for a publisher.

[Felonious Skunk]

^^^^ Hell, he can write his story right on his state-provided wardrobe.

I still can't get over that....why wouldn't they give him street clothes? Are they that mad that they won't be fucking him for 23 more years as planned?

"Oh warden! Could you please furnish me with a paper suit? My mother's coming for dinner and I've used me pants to heat the Spam..."

[Nagognog2]

Probably owns stock in the Hearst Paper Co. You know - the ones who got pot outlawed after they bought the forestry rights to the Pacific NorthWest.

"The Spics are coming! The Spics are coming! Sound the alarm! Call Harry J Anslinger!"

[bcubed]

MAYBE there's a back story here...like they've had a hard-on to bust this guy for a while, but never could get anything to stick...

I'm not saying that EXCUSES anything, but it'd EXPLAIN why they wanted to lock a guy up for his pain meds.

I would certainly hope that there was an uproar and the DA was called on the carpet for running with this...and hopefully censure and removal.

[Felonious Skunk]

I don't think that the prosecutors' response is anything atypical in this case. There has been a rather prolific history in this country of prosecutors insisting on the continued incarceration of someone wrongly-convicted and imprisoned despite incontrovertible DNA or other evidence to the contrary.

There seems to be a megalomaniacal perseverance on the part of these prosecutors that prevent them from admitting to mistakes on their part or those of others.

There have been cases of people who, totally frustrated at their inablility to convince the justice system of their innocence, escaped from a correctional facility. Even after being exonerated of the original crime for which they were convicted, prosecutors demanded their continued incarceration based on the escape charges.

While such a perspective is technically correct from a legal standpoint, it betrays a total lack of human decency, but then that's really not at all surprising.

[Nagognog2]

Sure they are. I was arrested for nothing illegal. But the prosecutrix tried to sway the judge because I'd kicked a brat in the balls when I was 12. She tried to make me out as a sex offender. I was then 32. It happens. The case was tossed.

[snapper]

One would think that Police officer of all posters would not take irrelevant background information into consideration in judging this guy, particularly with a valid prescription for the meds. There is really no excuse for that. Sure, jail time is legitimate for coke trafficing (in the eyes of the law) but for a legitimate prescription ? How can an officer of the law think such a thing is plausible ?

[Felonious Skunk]

If you read the online responses following the linked article, every one to a person condemns what happened to this man, and I would assume at least some of them support the drug warriors.

Between stuff like this, John Walters' verbal gaffs, and D.A.R.E., the tide will turn, albeit slowly.

No one wants to live in a society like this.

[Felonious Skunk]

Here's the appeal. After reading it, maybe some of us would like to blitz the prosecutors named in it with inquiries asking why they would do this to somebody:

Bill McCollum, Attorney General,Tallahassee

Marilyn Muir Beccue, Assistant Attorney General

Reputation Comments on this post:

nice

[Nagognog2]

Don't bomb the prosecuters. They'll use the letter to cover the asses they are trying to cover. Speak with the law firm handling the appelate case. Ask them if letters of support, shock, etc. would be of use. If yes - fire away. These would be read by the judge. Fuck the prosecution.

[Felonious Skunk]

After reading that appeal transcript, I must say that my opinion of Amerikan justice has fallen to a new low.

The reason this man received such a long sentence is:

He was charged with trafficking according to schedules determined by drug weights. In this case, the prosecution included the entire weight of a prescription Vicodin pill. One pill breaks down to 5mg hydrocodone + 500mg acetaminophen. The prosecution considered each pill as if it were 505 mg hydrocodone with the express purpose of pushing O'Hara into a trafficking offense.

Put another way, O'Hara was doing 25 years for Tylenol.

The lesson is clear. If your medical condition requires scheduled medications, make sure your doctor prescribes the strongest preparation available--whether or not it has side effects--because any adverse reaction can't be worse than the side effect of a government pitbull trying to put you away for 25 years.

It's sickening and at the same time not surprising. I've started a new thread on this for anyone who wants to thrash it out.

[snapper]

Best that those SWIMs in the US not delude themselves into thinking they have rights since they clearly do not. SWIM expects that with the evangelical and fundamentalist curtain of ignorance in this country coupled with a very fascist right wing, circumstances such as this are not far from being commonplace. It sounds absurd, but if they want to lock someone up, there is always a way to accomplish it.

[Beanfondler]

Originally Posted by snapper

It sounds absurd, but if they want to lock someone up, there is always a way to accomplish it.

Absurd to everyone that has freely thrown their duty to govern the government aside and accepted that all authority will have good intentions. This isn't anything new by any means it just has continually become easier and easier to do.

I trust a random person on the street a great deal more than anyone with "authority." What that random person is capable of doing to you is very minor compared to what authority can muster.

[El Calico Loco]

And ideology has led to greater crimes than the greed of individual criminals. It's not selfishness that leads men slaughter natives, burn heretics, gas Jews, or send bourgeoisie to the gulags; it is their unassailable belief in The Cause. All of the above have been done in the name of Law and Authority.

Like a good dog, the true believer obeys his masters without fail. No individual ethical reasoning, or even simple human decency, is necessary when one has faith.


ECL