May 22, 2013

U.S Attorney Folds Under Pressure, Backs Away From Gag Order In Medical Marijuana Case

May 22, 2013
Gavel marijuana miami prosecutor

By Terrie Best – San Diego Americans for Safe Access Court Support Coordinator

Gavel medical marijuana case gag orderSan Diego, CA  – San Diego’s medical cannabis community saw history in the making when the city’s Mayor, Bob Filner, showed up to a federal hearing, sat with his arm around the defendant’s elderly mother and held a press conference discussing jury nullification – calling the practice of nullifying unjust laws by virtue of acquittal verdicts “the law of the land” – and discussing his own fight against similar laws during the civil rights movement.

The federal proceeding attended by Mayor Bob Filner was a gag order hearing brought on by the U.S Attorney’s office in response to criminal defense attorney Michael J. McCabe’s speaking out in a video about U.S. Attorney Laura Duffy’s vindictive prosecution of his client Ronnie Chang.  The video, filmed by San Diego Americans for Safe Access Chair, Chapter Coordinator, and former client of Mr. McCabe’s, Eugene Davidovich can be viewed here:

In the original motion to gag Mr. McCabe, the U.S Prosecutor, Paul Starita,  requested that not only the McCabe video be removed from the San Diego Americans for Safe Access website but that the San Diego ASA- run “Free Ronnie Chang” Facebook page be wiped from the Internet as well.  Mr. McCabe is a supporter of SDASA but has no jurisdiction over the Chapter’s internet activities.

The gag order motion was heard on Monday, May 20th 2013, before Judge Michael Anello in Dept. 3A of San Diego’s federal courthouse.  In beginning his argument for the gag order, Starita shied away from the term “gag” in favor of the less oppressive request to simply require that he and Mr. McCabe follow the local rules of conduct by not “trying the case in the press” – a sharp departure from Starita’s earlier demands.

In a well thought out argument, Heather Beugen, arguing on behalf of Mr. McCabe, pointed out that the rules of conduct of the American Bar Association (Rule 3.6 (a)) state counsel on either side may respond to opposing party’s prejudicial statements to the press.  Argument could be made that this is exactly what Mr. McCabe did in the San Diego ASA video as he responded to the bold-faced lies told by Duffy in her own statements to the press with regard to her brutal crack down on state-legal medical cannabis collectives.

The result of the hearing had attorneys for both sides stipulating to follow the local rules regarding pre-trail statements and no formal order was given by his honor.

Ronnie Chang, a former medical cannabis collective operator and victim of  San Diego District Attorney and failed Mayoral candidate Bonnie Dumanis’ 9/9/09 raids, sat through the hearing in prison garb next to Mr. McCabe, while his mother Carmen Chang, was seated next to Mayor Filner in the galley. Mrs. Chang could barely take her eyes from her son, so distraught was she to see her boy so long (9 months) in custody.  It was a heart-wrenching sight and not lost on our Mayor who comforted her with gentle pats and kind words throughout the hearing.

Immediately before and following the proceedings Mayor Filner, asserting the gag order did not apply to him, made himself available to speak to the press and what he had to say rocked medical cannabis activists state-wide. His actions garnered the attention of (Fully Informed Jury Association) the nation’s largest juror education project who later thanked the Mayor and local activists in a statement on their website:

Mayor Filner voiced so many brave, stirring statements, frankly it’s hard to pick a favorite.  At one point when asked whether it was the Mayor’s place to interfere in federal law, Filner replied “Making it clear to the federal government that we object to this persecution is what leaders do,” calling Ronnie Chang a fine patriotic citizen and flashing a compassionate smile at Mrs. Chang who stood with him in the interview outside the courthouse.

The public is encouraged to watch the video, filmed by SDASA Vice Chair Marcus Boyd, of just a portion of what May Filner had to say here:

Our Mayor is no stranger to activism, growing up in Pittsburgh, his parents were union organizers and once entertained the great Dr. Martin Luther King Jr. in their home.  The young Bob Filner was so taken with King’s philosophy of non-violent civil action it moved him to join the civil rights movement in Mississippi at the age of 18.

As a Freedom Rider, our Mayor was arrested in 1961 and spent two months in a secluded cell along side the likes of Stokely Carmichael and John Lewis.  The case against the Freedom Rider activists was eventually overturned by the U.S. Supreme Court.  The Court also overturned the laws for racial separation.

In Filner’s own words he says “I’ve never been a passive person. I’ve always felt that, if you think something should be changed, it’s your responsibility to actively pursue that change.”  Which is likely why he made this statement in a press announcement several days before the hearing;  “In cases like these, where Ronnie Chang will face a jury of his peers, jurors may be faced with decisions about unjust laws. There is a mechanism for the peoples’ will to prevail. It is called jury nullification and holds that jurors have a right and even a duty to vote their conscience if they feel the government is engaged in injustice. In voting to acquit victims of unjust laws, jurors cannot be punished for their verdicts.”

Now, as a teenager I don’t know where my own head was but shamefully I wasn’t fighting for the rights of downtrodden citizens.  I admire this man greatly and even more so when he took up the cause of Ronnie Chang and the implications jury nullification would have in the fight for states to implement the compassionate use of medical cannabis.

Mayor Filner knows what cannabis activist have come to realize, this battle will end when the last arrest is made because the last prosecuting body can no longer seat a jury of 12 people ignorant enough to convict a fellow citizen for their choice in medicine or their right to be sovereign over their own consciousness.

Jury nullification has a rich history in the U.S. as evidenced by this quote from Founding Father Alexander Hamilton: “That, in criminal cases, nevertheless, the court are the constitutional advisers of the jury, in matters of law who may compro¬mit their consciences by lightly or rashly disregarding that advice; but may still more compromit their consciences by follow¬ing it, if, exercising their judgments with discretion and honesty, they have a clear conviction that the charge of the court is wrong.”
Alexander Hamilton, from his argument in People v. Croswell, 3 Johns. Cas. 336 (1804).

We can expect much more from our Mayor and from the bottom of my heart, thank you Bob Filner for your lion heart and, in the words of your staff, your penchant for “Always doing what you feel is right.”

More articles on this event:

Mayor Filner to Speak at Press Conference Against Gag Order in Federal Medical Marijuana Case – Today – Monday May 20th


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