Source: San Diego Union Tribune (CA)
Author: Greg Moran, Union-Tribune Staff Writer
Published: April 23, 2004
Copyright: 2004 Union-Tribune Publishing Co.
Contact: [email protected]
A long-running case of judicial pingpong ended yesterday when the state Supreme Court ruled unanimously that drug charges against four San Diego medical marijuana activists were properly dismissed by a Superior Court judge in 2001.
While the case centered on the activities of a now-defunct Hillcrest medical marijuana clinic, the ruling by the high court actually had little to do with that controversial issue.
Instead the justices, as three San Diego Superior Court judges and three appellate court justices before them had done, wrestled with the esoteric questions of the authority judges have in reviewing decisions of other judges and the standards for dismissing charges.
The upshot of the tangled case: Drug possession and sales charges against clinic owners Carolyn Konow and her son, Steve Rohr, and workers Amy Toosley and Daniel O'Neil are quashed, said Michael McCabe, Konow's lawyer.
But the four-year odyssey has left its mark. The clinic has long been closed and Konow, once a prominent advocate for the medicinal use of marijuana, is now keeping a low profile.
"This case has made paupers of them all," McCabe said. "Unfortunately, the vindication today came at a heavy price."
The prosecutor who worked on the case was out of the office yesterday and could not be reached for comment.
The case began four years ago when San Diego police detectives conducted a sting operation on the California Alternative Medicinal Center on Fourth Avenue. The clinic had been in operation for two years, selling marijuana under the provisions of Proposition 215.
That 1996 voter-approved measure legalized the use of marijuana for medical purposes. Although a doctor can recommend marijuana and a patient can smoke it, it is illegal to buy pot or sell it.
Police had twice tried unsuccessfully to buy marijuana at the clinic, using an undercover sheriff's deputy. Those attempts were rebuffed because the agent did not have a doctor's recommendation. Later, when officers presented a recommendation from a bogus doctor, they again were refused.
Police eventually recruited a disgruntled former employee who bought $400 of marijuana.
At a September 2000 court hearing, all the charges were dismissed by Judge William Mudd. He said that Proposition 215 was so poorly written it violated the constitutional rights to due process and equal protection.
He said the clinic owners had "taken all steps necessary to comply with the statue" but the law was so hopelessly muddled it left them in an "untenable position."
Prosecutors then asked another judge to review Mudd's decision. In November 2000, Judge Howard Shore reversed Mudd, ruling he had abused his discretion.
When the case went back to Mudd, he "begrudgingly" ordered a trial, saying there was sufficient evidence under the law to support the charges.
McCabe and other lawyers requested that Mudd use his judicial discretion to dismiss the charges in the "interests of justice." Mudd declined, saying that Shore's ruling told him to look solely at the sufficiency of the evidence.
Defense lawyers then asked a third judge, Michael Wellington, to dismiss the case. Wellington ruled that Mudd was mistaken when he said – at the second hearing – that he did not have the authority to dismiss the case in the interests of justice. On Jan. 19, 2001, Wellington dismissed the charges.
The San Diego-based 4th District Court of Appeals ruled Wellington was wrong, and ordered the charges reinstated. Defense lawyers appealed to the high court.
Chief Justice Ronald George wrote that Wellington was correct to conclude that Mudd denied the defendants a key legal right by erroneously saying he could not dismiss the charges on his own.
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