Medical Marijuana Activists Fight for New Trial in Case of Dispensary Owner

California anti-prohibition activists say a prosecutor with an ax to grind has convicted a man for illegally selling medical marijuana in a state where its legal to sell medical marijuana. They say it is the second time that San Diego District Attorney Bonnie Dumanis has tried Jovan Jackson on similar charges, and in order to make this one stick, she made sure his best defense was hidden from the jury: that selling pot to card-carrying medical marijuana patients in a storefront dispensary is perfectly legal under California's medical marijuana statutes.

"Embarrassed by her earlier loss and desperate for a conviction, District Attorney Dumanis manipulated the criminal justice system to unfairly try Jackson a second time," said Joe Elford, chief counsel for Americans for Safe Access (ASA) and the attorney who will argue that Jackson deserves a new trial. "To make matters worse, the court deprived Jackson of the defense that was used to gain an acquittal in his first trial, and a defense to which he's entitled."

ASA, which calls itself the country's largest medical marijuana advocacy group with 50,000 active members in 50 states, has filed a motion in Jackson's case for a new trial and sentencing, and will argue its case in San Diego Superior Court today. Critics say San Diego has been trying to dismantle the medical marijuana industry there, partly by engaging in a series of raids over the last few years on dispensary storefronts, such as Jackson's Answerdam Alternative Care Collective. According to reports, Answerdam had been raided twice since 2008, resulting in the arrest of dozens of people. In December 2009, Jackson was acquitted on charges of marijuana possession. Jurors in that trial told reporters that the laws governing medical marijuana sales from collectives were vague, prompting them to find the defendant not guilty.

The prosecutor from the District Attorney's Office in that case, Chris Lindburg, tried to convince the jury that Answerdam had been breaking the law and that Jackson's activities were not about helping sick people, but "about making money, plain and simple."

Jackson's current conviction stems from another raid in 2009. The collective was raided by a multi-agency task force under the name "Operation: Green Rx." For this case, the jury had been instructed that it could not consider the California medical marijuana laws when making its decision. Jackson was convicted on Sept. 28.

"Jackson should not have been denied a defense and should not be used as a scapegoat for the District Attorney's misguided position that medical marijuana sales are illegal," said Eugene Davidovich, who also heads the San Diego chapter of ASA.

New action on the part of the San Diego City Council may make it hard for such prosecutions in the future. According to the ASA, the council has "been working for more than a year" on a new distribution law that would regulate the dispensaries and distribution of medical marijuana in the city, clarifying all of the muddiness that has allowed for the raids and the arrests in the first place.

Meanwhile, supporters are pushing for Congress to enact H.R 3939, the Truth in Trials Act, sponsored by Rep. Sam Farr (D-CA), which would "allow any person on trial for a federal marijuana-related offense to introduce evidence that the alleged marijuana-related activities were performed in compliance with state law regarding the medical use of marijuana," and "allow an affirmative defense to a marijuana prosecution that the alleged marijuana-related activities complied with state law regarding the medical use of marijuana."

Jackson's case recalls another one in San Diego, in which dispensary owner James Dean Stacy is facing federal drug charges after his shop was raided in late 2009, just weeks after the Obama Justice Department released a celebrated memo directing federal agents not to raid nor arrest individuals who were operating legally under the current California medical marijuana laws. Stacy told Change.org he opened his dispensary in light of the memo, but the judge doesn't care: he has ordered this defense inadmissible in his case.

“Regardless of how scrupulous their compliance with state law and/or local ordinances, medical marijuana patients and their providers remain vulnerable to federal enforcement raids, arrest, and prosecution by U.S. Attorneys," wrote Farr and Rep. Dana Rohrabacher (R-CA), one of the few Republican supporters of medical marijuana laws, in a recent letter supporting to Rep. John Conyers (D-CA), chairman of the House Judiciary Committee, asking him to hold a hearing on Truth in Trials Act.

"Worse still, these persons are barred from introducing evidence that demonstrates that he or she was acting in accordance with state law."

Photo Credit: Neeta Lind