Advocates fight to overturn a wrongful conviction and preserve the right to a medical marijuana defense
SAN DIEGO -- Appellate court oral arguments are set to occur Thursday in a widely watched medical marijuana dispensary case that raises the question of what defines a legitimate dispensary. Nearly a year ago, medical marijuana patient advocacy group Americans for Safe Access (ASA) appealed the September 2010 conviction of San Diego dispensary operator Jovan Jackson. The case against Jackson became a symbol of the effort by District Attorney Bonnie Dumanis and other prosecutors across the state to criminalize storefront collectives. ASA is appealing Jackson's conviction and the denial of his defense.
What: Oral arguments in People v. Jackson, a San Diego dispensary operator convicted in 2010 after being denied a defense
When: Thursday, October 11th at 1:30pm
Where: Fourth District Court of Appeal, 750 B Street, Suite 300, San Diego
"Jackson and other medical marijuana providers are entitled to a defense under the state's medical marijuana laws," said ASA Chief Counsel Joe Elford, who filed the appeal and is arguing Thursday on Jackson's behalf. "The denial of Jackson's defense was unfairly used to convict a medical marijuana provider who was in full compliance with state law." At Jackson's trial, San Diego Superior Court Judge Howard Shore referred to medical marijuana as "dope," and called California's medical marijuana laws "a scam."
Jackson operated his storefront collective for years without incident until he was raided by law enforcement in 2008. Jackson was tried for marijuana possession and sales in 2009, but was acquitted by a jury. Dissatisfied with that result, District Attorney Dumanis tried Jackson again on the same charges stemming from a September 2009 raid by a multi-agency task force made up of local and federal law enforcement. It was at his second trial that Jackson was denied a defense and ultimately convicted. Judge Shore sentenced Jackson to 180 days, but Jackson was later granted bail pending appeal.
The basis of the lower court's denial of Jackson's defense at trial was the contention by the San Diego District Attorney's Office that patients must take part in the collective cultivation of medical marijuana by essentially "tilling the soil." Attorney General Kamala Harris, whose office is now litigating the case for the state, says this interpretation goes too far. However, Harris does argue that all members of a collective must participate in some way. ASA has argued that both of these interpretations of state law are flawed and should not be used as a means to deny dispensary operators like Jackson a defense at trial.
In February, after the Jackson appeal was filed, the Second District Court of Appeal issued a ruling in People v. Colvin affirming the legality of storefront dispensaries and rejecting the Attorney General's argument that every member of a collective or cooperative must participate in the cultivation. According to the Colvin court, the Attorney General’s interpretation of state law would "impose on medical marijuana cooperatives requirements not imposed on other cooperatives. A grocery cooperative, for example, may have members who grow and sell the food and run a store out of which the cooperative’s products are sold. But not everyone who pays a fee to become a member participates in the cooperative other than to shop at it."
In an unusual twist, Deputy District Attorney Christopher Lindberg, who prosecuted Jackson in Superior Court, filed his own amicus 'friend of the court' brief arguing against Jackson's appeal, something rarely done. Further complicating matters for the state, Lindberg's brief takes a decisively different position on collectives than does the Attorney General, who is now prosecuting the case. "This confusion over what the law means cries out for the 'rule of lenity,' which should guard against the prosecution of well meaning civilians for crimes the law does not clearly spell out," continued Elford.
Jackson appeal brief filed by ASA: http://AmericansForSafeAccess.org/downloads/Jackson_Appeal.pdf
Attorney General reply brief: http://AmericansForSafeAccess.org/downloads/Jackson_Appeal_AG_Reply.pdf
ASA reply brief: http://AmericansForSafeAccess.org/downloads/Jackson_Appeal_Reply.pdf
ASA reply to District Attorney amicus curiae brief: http://AmericansForSafeAccess.org/downloads/Jackson_Appeal_Reply_DA_Amicus.pdf