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Case Dismissal Is A Win For Medical Marijuana Patients, Sort Of
May 31, 2012 1:08 p.m.
Dexter Padilla, President, Medical Marijuana co-op
Eugene Davidovich - San Diego spokesperson for the medical marijuana advocacy group - Americans for Safe Access
Related Story: Medical Marijuana Case Dismissal Is Victory For Advocates
MAUREEN CAVANAUGH: Coming up marijuana advocates are celebrating the dismissal of the case against a local co-op owner. Also ahead, the weekend preview. It's 12:20 and you are listening to KPBS Midday Edition. This is KPBS midair edition. I'm Maureen Cavanaugh. The legal issues surrounding medical marijuana in San Diego are enough to alter anyone's consciousness. The city of San Diego has no zoning ordinance and therefore a de facto ban on dispensaries while a federal crackdown has shed the Spencer is here and across the state. It's not surprising that the court case which ended in a hung jury and a dismissal is being touted as a victory for medical marijuana advocates. I'm speaking about the case against former medical marijuana co-op president Dexter Padilla here in San Diego and I'd like to welcome Dexter Padilla today to the show.
DEXTER PADILLA: Hello how are you? Thanks for having me coming in
MAUREEN CAVANAUGH: and Eugene Davidovich is here he has stated a spokesperson for the medical marijuana advocacy group Americans for safe access. Eugene, hi.
EUGENE DAVIDOVICH: Hi, thank you for the show today.
MAUREEN CAVANAUGH: Now Dexter, give us a little background if you would've this prosecution. What were you charged and what were those charges?
DEXTER PADILLA: Well the genesis of my arrest took place basically went there was a federal raid against my attorney, Mark Warfel up in Mendocino County. And that raid took place without any warrant. And they basically looted the attorney Brent cleavages in the safe you found my information on their. Six months later he was arrested & Marcus warehouse where the medicine was being grown and I was charged in with possession with intent to sell and cultivation.
MAUREEN CAVANAUGH: And by which agency were you raided, this was a city prosecution, right?
DEXTER PADILLA: Yes it was, the law enforcement involved in the radiance and Marcos was the narcotics task force or DMTF which comprises of DEA cross warrant a chance, DA sheriff in San Diego PD.
MAUREEN CAVANAUGH: I see. Okay tell us a little bit about therapeutic healing Corporation. That was the name of your co-op. Where was it located?
DEXTER PADILLA: The dispensary was located in holiday court in La Jolla and we had at the time we had 3000 active members. Although, the grant was obviously taking place in a light commercial industrial zoning in San Marcus because we wanted to have a very minimal environmental impact in a commercial area. So that's why the cultivation was taking place somewhere else.
MAUREEN CAVANAUGH: And why did you get involved in the medical marijuana co-op in the first place, Dexter?
DEXTER PADILLA: Well I'm a veteran I'm also disabled. I got into a car accident back in 95. I had a spinal injury. My wife is also a former cancer patient and she's in remission also. I got involved because you know I really wanted to make a difference. I believe the change is absolutely, and I wanted to be involved in that.
MAUREEN CAVANAUGH: Let me catch at the conversation Eugene Davidovich. What kind of the case to the County but up against Dexter Padilla?
EUGENE DAVIDOVICH: This is truly a horrendous prosecution. It is an example of this continued fierce fight against patient's right here in San Diego and the continued means that the Dist. Atty. Uses the procedure as a way to punish the folks going through the process. It was clear from the outset of the case that no jury would ever convicted Dexter Padilla. He went out of his way to be in compliance with state law. As CPA that it all the accounting, had several attorneys that helped organize the books to make sure that it was all in compliance. All the records were offered to the district attorney before the case to prove compliance and the District Attorney's Office refused to look at them so the whole entire process was designed to punish Dexter well going through and I don't think that he ever thought they would get a conviction in this case.
MAUREEN CAVANAUGH: In the article that you wrote I read it there only two witnesses for the prosecution
EUGENE DAVIDOVICH: That's correct. But on a very long to set of input on many witnesses in the witnesses that could go on the stand were some of the DEA agent surveilling the facility and really had absolutely no training or experience in medical marijuana laws are identifying what illegal collectivism versus not.
MAUREEN CAVANAUGH: What I understand this account he claimed this particular nonprofit was too big to be in compliance with state law and that members themselves were not involved in any of the actual growing of the medical marijuana. And both of those did not land on very firmly firm legal ground at least according to the judge.
EUGENE DAVIDOVICH: Well the judge made it clear that there was reasonable doubt hear of any kind of illegality. Dexter here went out of his way to comply with state law. Actually paid all the taxes that were required for the collective. There was a Board of Directors that operate the place. It was done in a not-for-profit manner in a very small location in La Jolla, and minimal impact to the neighborhood in fact the place brought benefit to the neighborhood.
MAUREEN CAVANAUGH: Dexter witnesses told the court that you are very scrupulous in complying with state law. What exactly did you do?
DEXTER PADILLA: I did more, I try to be above board in what was required. I went ahead and copy medical marijuana card from the health and County Department of Health. I went aboveboard as far as hiring a tax attorney as well as the CPA making sure that all my books were in order and absolute impeccable recordkeeping. And again, how I'm still surprised how I've been managed to be persecuted for a year and a half when I've offered everything to the district attorney regarding my legalities. So I've given them you know, tax, every legal document that they asked for I gave, but the thing was the documents that they did not ask for such as the patient records, which was the one that was looted from my attorneys safe was, they used that against me as far as a, where these records if you don't have them then you are obviously doing something illegal.
EUGENE DAVIDOVICH: The very records they looted themselves.
MAUREEN CAVANAUGH: I want to talk about this trail for just a minute and then we can talk about the broader implications of what's going on about medical marijuana in San Diego in the state of California. It was obvious from your writing Eugene, I read early on there were problems in the jury room. Give us some of the details.
EUGENE DAVIDOVICH: There were several issues that came up during the trial after jury selection and the initial jury was selected and sent back to deliberate one of the jurors refused to participate in the deliberations. We are not exactly sure what side of the issue that juror was whether he was going to vote guilty or not guilty, but for some reason Mr. simply refuse to deliberate with the other jurors in fact the jurors sent to notes to the judge asking for the juror to be dealt with and finally the judge, the agreement of both sides, dismiss this juror and replaced him with an alternate, and that decision was made to invite a jury with an alternate.
MAUREEN CAVANAUGH: I'm just wondering why all this sort of drama is going on Dexter, what are you going through?I mean, are people telling you this is a good sign for you or a bad sign for you, what was your feeling?
DEXTER PADILLA: I have front row seats to the show so I was just kind of watching in amazement and just having this thing play out. But obviously you know I was very concerned. I mean, again, I was concerned in a way.
MAUREEN CAVANAUGH: What could you have been facing in terms of sentencing if they had convicted you?
DEXTER PADILLA: Well I was facing two felony counts so I'm not sure what the sentencing was but I'm sure it was probably 5 to 10 years.
MAUREEN CAVANAUGH: In prison?
DEXTER PADILLA: Prison is correct.
MAUREEN CAVANAUGH: So you're watching these notes go back and forth and friendly judge Persky realizes that the jurors came to liberate anymore, right, Eugene?
EUGENE DAVIDOVICH: That's right and that's when the judge said I'm declaring this a mistrial, there is clearly no way the jury will reach a verdict and immediately, as soon as that statement was made, the prosecution jumped almost so high into the air to try to refile the charges they immediately set that Ms. Leticia admittedly said they would be refiling charges. The judge was surprised, George Persky was surprised to even hear that and made it very clear that she was considering dismissing this case in the interest of justice. Mr. McCabe the defense attorney in this case had an opportunity to weigh in and urged the case to dismiss this case in the interest of judges justice. Judge Persky agreed and even set up the arguments that the prosecution introduced in this case were part bordering disingenuous and that she was infected dismissing the case in the interest of justice which takes away the right of the Dist. Atty. To refile the charges ever again. The only thing we can do is try to appeal and that's when we saw the Dist. Atty. After that decision was made credit to the clerk to act ask for the trial transcript which signifies that an appeal would be made.
MAUREEN CAVANAUGH: We have confirmed that the DA does not intend to refile charges, does not intend to appeal the dismissal of this case by Judge Laura Persky. Is this whole scenario, is that rather unusual?
EUGENE DAVIDOVICH: What's unusual is that the district attorney keeps prosecuting these sorts of cases even though there is clear and unambiguous compliance with state law.
MAUREEN CAVANAUGH: Okay, so Dexter tell me what your reaction was when you finally heard, first about does this mean that you are completely off the hook?
DEXTER PADILLA: Yeah, well I believe so, will they do still have 55 days to change their minds because they have 60 days to file an appeal so I was pleasantly surprised too when they said they weren't going to do that but then again, this is the DA and she could technically change her mind and 55 days I'm going to wait on that. But absolutely, the thing was when there was a mistrial I was definitely disappointed that seven jurors thought I was guilty. With the amount of evidence that I submitted I was hoping for a 12 the acquittal.
MAUREEN CAVANAUGH: you were hoping for an acquittal.
DEXTER PADILLA: Absolutely we had a mountain of evidence to show reasonable doubt in the fact that seven people thought I was guilty kind of shows that there was still, we have a lot of work in regards to the medical marijuana about people thinking that it's illegal under federal, so therefore it is across the board of illegal.
MAUREEN CAVANAUGH: Let me tell the listeners that we did contact the district attorneys office for statement but if they do have a statement for us we will certainly bring it to you. What is the status of THC, the medical marijuana co-op.
DEXTER PADILLA: With therapeutic healing, but we did have to shut our doors as of April because not only was I dealing with a criminal case but I was also dealing with the civil case. So they were really trying to hit me from multiple sites. So, after they went ahead and phoned my landlord, my landlord went ahead and said you know what I can't keep you guys it's just too much.
MAUREEN CAVANAUGH: Is that part of the federal crackdown?
DEXTER PADILLA: Absolutely. It's part of the federal crackdown so if I wasn't budging with the criminal so they went ahead and went after me with a civil and eventually that's where we are so right now we don't have a principal place of business. Therapeutic healing cooperative is still active. We still have 3000 members that we are trying to best our best to try and service in that case that's where we're at.
MAUREEN CAVANAUGH: How are you trying to service them?
DEXTER PADILLA: Currently right now we are on a delivery service but again it's very slowly and we are just trying to deliver to provide service to those who are absolutely need it, who are like cancer patients that are in our file, so we are doing that.
MAUREEN CAVANAUGH: Eugene I think it's fair to say that with the federal crackdown on medical marijuana dispensaries, the whole issue of medical marijuana is, I mean it is really a mess. Is the state fighting the federal government on this, for the validity of its own state laws allowing use of medical marijuana?
EUGENE DAVIDOVICH: What we are seeing is rogue US attorneys executing these unlawful actions against folks that are in compliance with state law and at the same time we are finally seeing the state legislature step up and try to bring clarity to this issue once and for all. A.B. Three 2312 is an assembly bill that has been introduced by Tom (Young) at the state assembly just recently came out of the Appropriations Committee and will hopefully be a lawful force and that brings clarity statewide incubations, to dispensaries. It's really, the state is going out of their way to try to address these sorts of concerns and issues.
MAUREEN CAVANAUGH: Yeah if you come under federal law I mean if the Feds crack down on you, right, you cannot use California state law as a defense, can you?
EUGENE DAVIDOVICH: You can't and that's exactly why there's a number of lawsuits in place right now to reschedule cannabis off of schedule 1 Americans for safe facts our organization is involved in a number of those.
MAUREEN CAVANAUGH: You just oldest extant what people are doing are members of your marijuana co-op. What about people who aren't?dependent medical marijuana for their health, what are they doing now. What are you paying for this entity so to speak?
DEXTER PADILLA: Well there is certainly some great debate and a lot of them are because of the crackdown. There isn't hardly any dispensaries left. So everyone is just kind of unsure of where to get it. They're going to meetings and trying to you know, contact anyone where they can get their medicine so again, like you said it is a mess and hopefully with this bill we can get some clarity and hopefully in November we can get some ballot initiatives there that we can vote on and start regulating dispensaries.
MAUREEN CAVANAUGH: does the state legislation me mention, Eugene, where is it in terms of actually becoming law?
EUGENE DAVIDOVICH: Well it will be voted on by the assembly here of late summer. If it becomes law it will become law by next year and hopefully will bring clarity once and for all to this issue statewide.
MAUREEN CAVANAUGH: is the state of California or is your organization putting any pressure on the federal government to try to clarify the issue of its crackdown on marijuana? I know that happened last year. People are still somewhat confused about it. Do we know anything more about what might have prompted that?
EUGENE DAVIDOVICH: You know Pres. Obama during his campaign made clear promises that he would not be going after patients in very clear and unambiguous compliance with state law. We have not seen those promises kept and we are continuing to put pressure on the administration to try to have those promises To stop the fierce fight against patients and to have the states law respected as the president said they would be.
MAUREEN CAVANAUGH: Do you see any way out of the situation
EUGENE DAVIDOVICH: I think the president needs to take action and Congress needs to take action to him local government level we need clear and safe guidelines of the patients can be safe and be blessed safe local access.
MAUREEN CAVANAUGH: Where does this issue stand in state courts?
EUGENE DAVIDOVICH: In state courts issue is clear that the federal law does not trump state law on this issue. Medical marijuana
MAUREEN CAVANAUGH: In the state of California?
EUGENE DAVIDOVICH: In the state of California. Federal law will not change that.
MAUREEN CAVANAUGH: I want to thank you both it's a very, dated issue and I'm happy for the way this turned out even though you did not get your acquittal.
DEXTER PADILLA: I'm happy too, Thank you very much.
MAUREEN CAVANAUGH: I've been speaking with Dexter Padilla and Eugene Davidovich and thank you very much.
DEXTER PADILLA: Thank you for having us.