Medical marijuana patient in unambiguous compliance with state law, faces second prosecution attempt by San Diego District Attorney Bonnie Dumanis. Jury selection begins Feb. 14.
By Eugene Davidovich / San Diego ASA / Feb. 9, 2012
In the summer of 2009, Benjamin Gasper, along with two other seriously ill medical marijuana patients rented a warehouse space in the Sports Arena area of San Diego, a heavily commercial district far from residences and other “sensitive uses,” and began to collectively cultivate medical marijuana for personal medical needs.
All three members of the collective, as court documents have shown, signed an agreement in which they entered into a contract to “associate collectively or cooperatively to cultivate marijuana for medical purposes.”
The agreement went as far as stating that “all members of our medical marijuana collective will contribute labor, funds, or materials, and all will receive medicine.”
In later court proceedings both patient members of the collective cultivation effort testified that they did in fact contribute funds, materials, and their labor to the effort.
In November of 2009 a month after the 9/9/9 mass eradication sweep of dispensaries in San Diego championed by DA Bonnie Dumanis, her office decided to target all legal cultivation efforts in the county including Gasper’s.
Gasper’s warehouse was raided under the guise of conducting a “safety check.” According to the officers on the scene, they believed a burglary might be taking place because the front warehouse roll up gate was slightly ajar. After entering the facility without Gasper’s permission and searching the premises for more than thirty minutes, they happened on the entrance to the cultivation room which was completely isolated and sealed off from the main part of the warehouse.
Upon discovering and rummaging through the patient garden, even though the collective agreement, doctor’s statements and ID’s for all the members were present on site, the officers still arrested and charged Gasper with illegal cultivation of marijuana, an action completely legal under state law.
As with most medical marijuana cases, Dumanis hoped that Gasper would agree to a plea bargain giving her another notch in her prosecutorial belt. To her surprise Gasper refused. He demanded a fair jury trial and reached out to San Diego Americans for Safe Access (ASA), the local chapter of the nation’s largest medical marijuana patient’s rights advocacy group for assistance with the case.
Bahar Ansari, a criminal defense attorney and board member of San Diego ASA took on Gasper’s case pro-Bono. After months of arguments and motions in June of 2010, at a 995 hearing, Ms. Ansari was able to get all the charges dismissed.
This enraged Dumanis, and in line with her ‘fierce fight’ against patients and commitment to waste precious law enforcement resources on investigating and prosecuting these cases; the charges were re-filled and an entirely new case started.
For the second trial, Melissa Bobrow another criminal defense attorney and San Diego ASA board member joined the case.
Almost two years after the initial arrest, on Thursday, February 9, 2012, the second attempt to prosecute Benjamin Gasper, a legal medical marijuana patient officially entered the trial stage of the court process.
Having been assigned to Judge Michael Smyth’s courtroom in department 50 of San Diego Superior Court, Ms. Bobrow introduced and argued several motions to dismiss. The motions were based on vagueness of the law, due process, interest of justice, etc; all motions were denied.
Ms. Bobrow also argued that the prosecutor’s witness Detective Boyce was not qualified as a medical marijuana expert and should not be allowed to testify at trial. She cited that his training and experience which is primarily related to the illegal use of cannabis does not make him an medical expert. Judge Smyth denied this motion as well.
Even though an overwhelming amount of evidence was presented that Gasper was in fact collectively cultivating cannabis leaving the only point of contention, whether the amount was reasonable for the patients’ conditions, the DA still aggressively argued that he not be allowed to present to the jury the medical marijuana cultivation defense entitled to him under state law.
These clear attempts to subvert defendants’ right to a fair trial were prevalent throughout all of the prosecution’s arguments.
At one point during the hearing, Judge Smyth without making a formal ruling, foreshadowed that in light of the overwhelming evidence, Gasper would likely be allowed to present a defense as well as testimony from a cannabis cultivation expert at trial, another right the prosecution was trying to deny.
The proceedings continue tomorrow, February 10, 2012 at 9:30am in Department 50 (San Diego Superior Court 220 W. Broadway). That morning Ms. Bobrow will have an opportunity to question Detective Boyce and his medical expertise as well as present arguments against the prosecution being allowed to present him as a medical expert.
Jury selection is expected to begin on Tuesday, February 14th , with the trial expected to last for at least a week and a half.
Medical marijuana patients, supporters, and community advocates are outraged at Dumanis’ incessant efforts to subvert state law on this issue and have vowed to expose her true position on medical marijuana despite her misleading statements which she claims she supports patients and their right to safe and reasonable access to cannabis therapeutics.