Mistrial Declared in San Diego Medical Marijuana Trial

By Terrie Best / San Diego Americans for Safe Access

On Thursday, June 27, 2013, legal cannabis patient and defendant Tim O’Shea’s jury came out of deliberations hopelessly deadlocked and Judge Charles Rogers declared a mistrial.

The jurors deliberated for approximately 16 hours over the course of the last few days and the waiting game was one of the most brutal I have ever endured.  After polling the jurors to confirm the deadlock, Judge Rogers asked for information on the split. It was nine not guilty and three guilty.

The judge had some very poignant words about their service in this difficult case of emerging law and the jury answered back with their own thanks for the obvious respect he showed to them during the trial.

Judge Rogers spoke at length about the importance of the nine not guilty juror votes, recalling that in his lifetime bi-racial marriage was illegal but change emerged and jurors began to use their verdicts to fight the tyranny of government until the racially motivated law was nullified. Throughout the trial I thought many times what a wonderful man Judge Rogers is and I loved hearing him say that juries reflect the beliefs of citizens and he believes the not guilty votes will send a message to the DA’s office about what the people really want.

After the Judge spoke and declared the mistrial, defense counsel Mark Bluemel made an oral motion called a PC1385 requesting that the judge dismiss the case in the interest of justice. His Honor declined to hear the motion until 9:00AM Monday, July 1st to give the prosecution time to decide if they would dismiss on their own. It is my opinion and that of several supporters that if the DA’s office indicates they will retry the case, the judge will grant Mr. Bluemel’s motion.

Should that happen, it will be the second time a judge has stepped in and dismissed a medical cannabis case in which La Touche was the prosecutor. Last year, in the Dexter Padilla case, Judge Laura Parsky, in a very rare move dismissed two cannabis related counts against Dexter in the interest of justice. Her Honor asserted La Touche was bordering on ‘disingenuous’ in the way she presented her arguments in this case, a humiliating moment for the Deputy DA that clearly she has not learned from. One hopes she will avoid a second shameful lesson from this judge and decline to re-file against Tim O’Shea.

A word about the abhorrent tactics of Deborah La Touche: I was invited by Mark Bluemel to sit at the defense counsel table during voir dire to help with jury selection but La Touche fought hard to have me barred from the table; lying to the judge that I am a convicted felon. I am NOT a convicted felon, I have no felony record. Now that the trial is over, I called La Touche, told her I knew of her lie and asked her to never do that again. I intend to write a letter to the Judge too. No disrespect to felons but it irks me that I sat in court with this lie to the judge hanging over me.

After the jurors filed out of Department 57 of the San Diego Superior Courthouse, I asked them if they would like to speak about the case. Most declined but one kind thoughtful woman sat down with me as well as two alternates who had not been in the deliberating room but who had strong opinions they wanted to share.

What I leaned was of the nine, most walked into deliberations already of the opinion that Tim was not guilty. The 16 hours were spent trying to get to a full acquittal. While the juror I spoke with would not name the three hold outs, she said the sticking point for the three was the amount of cannabis on-hand. She felt more education about dosages and medical need would have helped change the three guilty votes to not guilty.

Other key points were that none of the 12 believed the dice game score card La Touche tried to pass off as indication of profit were pay and owe sheets, and none believed Detective Paxton’s testimony that the cannabis on-hand had a street value of $175,000, but they did not think the film canisters Tim had in his tent helped his case either.

In speaking with the two available alternates, they said they would have voted not guilty had they been called in. Which means, of an impartial panel of 15 people, Mark Bluemel was able to convince 11 citizens of Tim’s innocence.

All who watched can agree that Mr. Bluemel’s defense of Tim was stellar and Judge Roger’s congratulated him on his work. I am very grateful that both he and co-counsel, Lisa Wong fought so hard for Tim and I hope they are basking in their victories right now.

This was an emotional trial for me. I’ve know Tim and his brother, Ted since I was a teenager and he did not deserve to face this ordeal. I’m drained but happy!  I want to thank all of the supporters and you, readers who tolerated my daily updates, especially the folks who contacted me with their appreciation. Thanks for the interest!

For more information about this case please contact me at ilegalsmile@hotmail.com.