By: Eugene Davidovich
SAN DIEGO – Wednesday of this week marked the third day of arguments in the second medical marijuana trial of Jovan Jackson a founding members of the Answerdam collective, patient, and US Navy Veteran.
The second trial, just as the first is being held in state court. Both have drawn lots of local media attention, outrage and questions from patients, and have stirred up controversy and concern in the medical marijuana community across the state.
Some not familiar with the case, seem to assume Jackson violated the law. There are theories circling the community that he is charged with selling medicine to someone without a valid recommendation or that a patient with an expired recommendation got into the facility and bought medicine making that sale illegal. The second trial has baffled many, and as a result people are simply assuming the worse, that there has to be something that justifies two raids and two trials.
The maddening reality is that both arrests and trials of Jovan Jackson have yet to be justified.
In both the first and second trial Jackson has not been charged, accused nor has there been any evidence brought forth that he violated Prop 215, SB420, or any other state or local law with regards to medical marijuana.
Jackson helped form the Answerdam Alternative Care Collective formerly located in Kearney Mesa, a commercial area of San Diego. This facility as all others in the state, helped facilitate transactions between members and qualified medical marijuana patients. This means, it was a dispensing collective, commonly referred to as a “dispensary”.
In a commercial office park, in a very clean and inviting setting, patients who grew their own medicine and had extra, could bring it in and be reimbursed for their expenses and cost of the cultivation. Other members, who could not grow their own, bought the marijuana grown by other members.
Every single member of Answerdam was a qualified patient. All 1600 were screened, verified, and required to fill out the proper paperwork prior to joining.
Does that process sound familiar? It is to every medical marijuana patient in the state.
This is the same manner in which just about every dispensary in California operates. Some may have different forms, a nicer TV in the reception area, but overall the idea, theory, operation, business practice, interpretation of the law, or whatever you want to call it, is the same.
So how are they able to prosecute Jackson?
Well, in Jackson’s first trial, an undercover officer went to a local doctor, lied about his symptoms and condition, obtained a legitimate medical marijuana card and joined Answerdam. The undercover bought a small amount of medicine, paid in cash, and left.
A few months later in August of 2008, Jackson was raided, arrested and charged with sales and possession of marijuana for sale in connection with the Answerdam dispensary. Jackson refused to take a plea deal and as a result, his case dragged on for months, while Answerdam remained open to its membership.
A year after the arrest, on September 8, 2009 while out on bail and in court for yet another hearing on charges related to the first raid, Jackson was suddenly taken into custody. Judge Laceter ordered the incarceration, claiming that Jackson needed to go through a psychiatric evaluation after he insisted on dismissing his public defender and representing himself. The next day, on September 9, 2009 Answerdam was raided for a second time by the same detectives that raided the place a year prior.
Jackson passed his psychiatric evaluation, was held for an additional two weeks and then finally released, at which point he brought onboard Lance Rogers, a private criminal defense attorney, to represent him.
The DA filed the second raid under a new case, set it aside, and focused on prosecuting Jackson for the first raid.
In December of 2009, the jury for Jackson’s first trial was selected, evidence presented on both sides, and testimony heard from witnesses including the undercover detective who made the buy.
Less than four hours after beginning deliberations, the jury returned a unanimous not guilty verdict on all marijuana related counts including sales, possession for sales, etc.
This loss caused serious damage to the DA;s reputation and putt a kink in her plans to raid the rest of the facilities. San Diego District Attorney Bonnie Dumanis vowed not to give up the persecution and went after Jackson again. Hoping to find through this case, a means she could use to shut every dispensary in San Diego down.
In the second case, it must be that that the DA finally found something on Jackson, evidence of sales to non patients, lots of cash, or something else along those lines, right?
Wrong again. No evidence of the sort has been presented to date. No evidence of profit, no evidence of sales outside the closed circuit, and no evidence of cash or large sums of money. The prosecution keeps singing their same song, that “all dispensaries are illegal”.
Their theory in both cases has been that sales of marijuana in any way shape or form are criminal. Unless all patients actually participate in growing the marijuana, the operators, employees as well as members of the facility, are criminally liable and are aiding and abetting criminal activity.
In the first Jackson trial, Judge Bashant allowed the jury instruction that discusses collective/cooperative cultivation to be read to the jurors. As a result, Jackson was acquitted. When the jury saw the actual law in its entirety, they found Jackson to be in compliance and not guilty of the crimes charged.
A similar situation occurred in the Davidovich case in the same courthouse a few months after Jackson’s first trial. In his case, jurors also saw the law in its entirety. The collective/cooperative jury instruction was read and Davidovich was found not guilty of the crimes charged just as Jackson was a few months prior.
Jurors in both cases stated after the trials that the current state of the law in California is such that as long as the patient is valid and is a bona-fide member of the dispensary, the transactions between those patients are legal.
Even after having their ‘group farm’ theory debunked twice by jurors in the San Diego courts, the DA’s stance and policy still continues unchanged.
So without changing the actual law itself, how could Dumanis win?
They can’t. This is why the DA decided to take a different approach. In Jackson’s second trial, they simply manipulated the law that the jury gets to see and base their decisions on. Judge Shore in Jackson’s second trial, decided to outright exclude the collective/cooperative cultivation portion of the law from being read to the jurors.
In the second trial of Jovan Jackson the portion of the law under which he was acquitted in the first trial, was simply deleted.
The Judge’s reasoning for this modification of the law was driven by the prosecution’s theory that all 1600 members of the dispensary, wheelchair bound or otherwise, did not roll their sleeves up and plow the same field together.
Even though evidence was presented before the trial through Jovan’s own testimony, that he along with other members of the collective grew cannabis, according to Judge Shore, because all 1600 members did not participate in that effort together, the collective/cooperative defense did not apply, and had to be removed from the jury instructions.
Aside from successfully eliminating the defense at Jackson’s second trial, the prosecutor also attempted to physically have Jackson’s supporters removed from the courtroom.
On Monday of this week, the first day of opening statements, Chris Linbergh the prosecutor, had the Judge order a large metal detector and sign be erected in the hallway outside of the courtroom and all supporters wearing an Americans for Safe Access (ASA) shirt or displaying any political messages, to stay at least 25 feet away from the Jurors.
That day, all the supporters sitting in the courtroom were handed a sheet of paper warning them that the penalties for jury tampering could be severe. The bailiffs that day also forced the supporters to remove any articles of clothing including purses that displayed the ASA logo.
Following the intimidation tactics employed by the district attorney’s office on the first day of arguments, on the second day, the numbers of people sitting behind the defense side continued to increase, and it appeared that no one was scared away.
The proceedings on the second day began with chief investigator Detective Mark Andrew Carlson taking the stand and testifying about the second raid he led on Answerdam. Prior to Carlson taking the stand, the fact that the first raid occurred and that Jackson was acquitted in the first trial, was ruled irrelevant by the Judge and ordered not be mentioned in front of the Jurors.
Carlson while on the stand, described in nauseating detail the nine jars seized from the dispensary, the steps he took the day of the raid, the surveillance he conducted, etc. He was on the stand for hours and seemed to simply be placed there to waste the courts, jurors, and the defendant’s time, shockingly the Judge allowed this to go on with no interruption.
The circus continued, with the DA calling to the stand a detective who simply at one point in the case was asked to transport the marijuana seized from Answerdam to another location. The purpose of his testimony was to supposedly show that the marijuana was properly handled when moved from one place to another, and that it was in fact him that moved the evidence.
This colossal waste of time was followed by the testimony of a Drug Enforcement Agency (DEA) chemist, who testified that the marijuana seized from Answerdam was scientifically tested using gas chromatography and was found to actually be marijuana. What a surprise!
The only worthy and relevant part of that day, was when the security guard who was hired by Answerdam to watch over the facility and deter burglaries, got on the stand.
His testimony was shocking.
He revealed that when the undercover officer arrived at Answerdam during one of the buys, he recognized him. Not only did he know that this man was an undercover narcotics officer, but he also turned out to be a long time friend of the security guard.
The security guard went on to say that he did not stop the undercover or say anything to anyone at the facility until the undercover left. After the detective was nowhere to be seen, he told the other members inside of the police visit, called Jackson, asked to urgently meet him, and quit on the spot.
Aside from telling this shocking story of a personal connection with the undercover officer who legally bought medicine at Answerdam, the security guard also testified that only qualified patients and members were allowed into the collective and that his job specifically was to act as an additional layer of security and to check members paperwork outside the facility before even letting them into the dispensary.
The next day on Wednesday, the undercover officer that made the buy at Answerdam took the stand and with his testimony confirmed for the jurors and everyone in the courtroom that his recommendation was in fact valid when he visited Answerdam. The detective even described how he obtained the recommendation. He said he lied about a serious back injury and as a result, the CA licensed physician he went to see issued him a recommendation to use marijuana in treating the back pain.
When describing his encounter with Answerdam, he talked about completing all the paperwork along with providing his medical marijuana recommendation to the members there before making the purchase.
Towards the end of his testimony, he was asked about his relationship with the security guard and whether he recognized him upon entering Answerdam. The detective hesitantly admitted that he did.
Realizing that his testimony was only helping Jackson, the detective stated that his interpretation of the law was that all dispensaries are illegal and that the three that he had visited as an undercover, were all the same, illegal. The detective wanted to make sure everyone understood his stance on the issue.
Following the detective’s testimony, the jury was excused and a discussion about the portions of the jury instructions not gutted by the Judge took place in the courtroom.
The prosecution, defense, and Judge agreed to continue the proceeding on Monday, September 27, 2010 in Department 15, when Lance Rogers, the defense attorney will begin his opening statements and case in chief. The case is expected to be wrapped up that day, and the jury could be in deliberations as soon as Tuesday.
Many people following this trial believe that future raids and prosecutions of medical marijuana dispensaries and patients in San Diego could very well rest on the decisions jurors make in this case.
