WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Tuesday, July 24, 2007

TO HELL WITH IT ALL.

2ND DCA REVERSES TRAFFICKING CONVICTION AND 25 YEAR MINIMUM MANDATORY SENTENCE FOR FAILURE TO INSTRUCT JURY ON THE PRESCRIPTION DEFENSE.

O'HARA v. STATE, 2D05-5078 (Fla.App. 2 Dist. 7-18-2007)


This why prosecutors have a bad rap. They have only themselves to blame for publicly advocating absurd positions that could devastate a person’s life.

O’Hara was convicted for trafficking in vicodin by possessing 58 tablets of the pain killer. At his trial, he presented evidence that physicians had prescribed the medication for pain he suffered from a chronic inflammatory joint disease and from injuries he had sustained in an automobile accident. Two separate Florida Statues each provide that possessing a valid prescription is an exception to the prohibition of possessing the drug. (Sections 499.03(1) and 893.13(6). However, the trafficking statute 893.135 does not explicitly contain the “prescription defense” and the trial judge refused to give the jurors a defense requested instruction.



In granting a new trial, the 2nd DCA noted that The drug trafficking statute, section
893.135 contains no express language setting forth a prescription defense. However, its proscriptions against the sale, delivery, or possession of trafficking amounts of certain drugs are prefaced by the following qualification: "Except as authorized in this chapter or in chapter 499 and notwithstanding the provisions of s. 893.13:. . ." § 893.135(1)

The court called the prosecution's position on appeal "absurd":



The State's construction is no less unreasonable in the context of the case before us, involving the drug trafficking prosecution of a man who possessed hydrocodone that he obtained by prescription. At the time of his arrest, O'Hara had 58 Vicodin tablets in his possession, but under the State's theory he would have violated the trafficking law even if he had possessed far fewer. ... The dosage recommended by Vicodin's manufacturer is one or two tablets every four to six hours, not to exceed eight per day. If we were to accept the State's assertion that there is no prescription exception to the offense of drug trafficking by possession, then we would have to conclude that any person who leaves a pharmacy with only one day's worth of properly prescribed Vicodin in hand is guilty of drug trafficking and subject to at least a three-year minimum mandatory prison term and a fine of at least $50,000.



One of the doctors who appeared at O'Hara's trial testified that in the course of his practice he had written prescriptions for up to 60 Vicodin tablets. Under the trafficking statute, that many Vicodin tablets would be deemed to contain over 30 grams of hydrocodone. According to the State's reasoning in this case, any patient who had the doctor's prescription filled was subject to a twenty-five year minimum mandatory prison term and a mandatory fine of $500,000.


What bothers us is this: what kind of human being actively works to put a fellow (ill) human being in prison for filling a validly issued prescription for a needed medication? This is the type of “see no evil” bureaucratic robotic thought that one would expect to see in communist China.

25 years is more than a quarter of a person’s life! Just how did those prosecutors feel when they went home that night knowing they put a man in prison until 2030 for possessing drugs prescrbed by his doctor?
How do these people sleep at night issuing this kind of devastating “justice’?

This kind of activity does not drive us to be a defense attorney. It drives us from the practice of law. Who would want to participate in a system of justice that produces these kinds of results, and engenders prosecutors to argue for absurd results on appeal?

It just makes us sick to think there are people like this with law degrees and entrusted by the State of Florida with enforcing our laws.

Some days, we just think “to hell with it all.”

23 comments:

Anonymous said...

Disgraceful. Why do these people still have bar licenses? I'm sure there's a bar complaint that can be filed here.

real fake doyle brunson said...

Rumpole, with your permission, can I repost this comment from last night, which I find hilarious?

Fake Doyle Brunson said...

Congratulations to our own Alex Michaels who finished 33rd in the World Series of Poker's Roumanian Stud tournament last week collecting a nice pay check of 24,500.00. In Roumanian stud, the players are each delt 4 cards face down and must bet on their hand. The players then must curse and yell at each other forcing another player to trade them a card. When each player has completed a trade, there is one more round of betting, and then the cards are layed on the table. The winner, a Bulgarian named Igor El Diablo Vonivtch, is a two time winner of the event. Alex lost on a hand where he was unable, despite calling the player next to him a sonofabitch, to obtain a 3rd 2, losing when he called an all in bet to a man who brow beat another player into giving him a ten for a straight.

Better luck next year alex!!!

Rumpole- the thought of alex sitting at a card table and yelling and cursing at other players has had my laughing all day long. You have some very imaginable readers.

fake blecher said...

I heard Phil tell Blecher that he (Blecher) was NOT johnny no slope. Now I am confused.

real fake blecher said...

Thats because you're out of the loop jackass. Leave this to the professionals.

curious law student said...

What do you all think of the policy the SAO has of allowing victims of crimes to have a say in plea offers? To other offices around the country/state have the same policy?

Anonymous said...

To curious law student:

The Florida Constitution provides for victims of crime to receive notice and have an opportunity to be heard.

The real question is why state attorneys delegate their responsibility and allow victims to actually make the plea offer. i.e. "the victim wants (jail, prison, adjudication, etc.....)

As abe said a while ago, 95% of the families of murder victims want the death penalty.

There are prosecutors that tell the victims they cannot offer such harsh pleas, but then there are some that just go into court and are mouthpieces for the victims, letting the "other" inmates run the asylum

Anonymous said...

Of course, when the victim or victim's representative wants the case dropped or pled out to a non-enhanced or below-guidelines sentence, then the prosecutor exercised his or her own discretion and refuses to honor the victim's wishes. Remember the first-degree murder case of several years ago, where the victim had been a Christian clergyman and his daughter did not want the defendant to get the death penalty? If it worked both ways, it would be a little more understandable.

Anonymous said...

It seems to me the judge in O'HARA v. STATE was worse than the A.S.A. A Judge should have the experience and common sense to do the right thing. No judge should read the law so rigidly as to send someone to jail for having a legitimately obtained prescription drug. I expect the ASA involved was young and inexperienced. If not they should go the way of Duke’s Nifong. A judge should know better.

Did O’Hare get his pain Meds in jail?

Rumpole said...

Curious- as the readers have said, the state has an obligation to allow the victim to be heard. However, as others have pointed out, the state often surrenders their responsibility as lawyers and prosecutors to seek justice and fairly evaluate a case, and hides behind the refrain "the victim wants the max" as a reason why a certain plea is offered.

When the state does this, they surrender and abandon their responsibility to seek justice, not the maximum. A victim has a very personal involvement in a case. The vengence they sometimes seek does not always equate to justice.

v for victory said...

Best up and commer trial lawyer? Hands down- the BIG V, Vic Vedmen.

Screw the Q
The heck with the E

Wanna be the V?

Anonymous said...

I miss: Judge T.L. Thomas;
Judge Pando; Judge Bach; Judge Arthur Rothenberg.

I don't miss: Judge Ferrer; Judge Leslie Rothenberg;


Once there was a Judge named Pando
Pando Pando Pando
She was better than Judge Lando
Pando better than Lando

Anonymous said...

Rumpola- what do think about a judge with a profile on My Space, Hot or Not, and You Tobe videos in a wet t-shirt and dressed in short shorts?

Inappropriate or not?

Anonymous said...

This just in- Jimbo Best not in trial.

Anonymous said...

There is a Fla case that says that as long as you have a prescription, the drugs don't have to even be in the vial.

curious law student said...

Does your average judge attempt to plea out the case himself when he realizes the state's offer is being given simply to satisfy a victim's desire for vengeance? Also, couldn't the argument be made that so long as a plea offer is within guidelines, regardless of whether the motivation behind it is vengeance, is it necessarily a "just" offer?

curious law student said...

Oops. The last few words of my last comment should read: it is necessarily a "just" offer.

Anonymous said...

60 Minutes did a story on a guy with almost the same problem afew months ago. He was a practicing lawyer from PA who had a bad accident and needed pain meds for a severe back injury. The defendant moved from PA to FLA and had a doctor in NJ. The doctor in NJ would routinely prescribe him narcotic pain killers. The defendant needed some when he was down here and forged a prescription from his doctor. He had a large amount in his possession and was arrested and charged with trafficking. Granted he did forge a prescription, but his doctor testified that he would have prescribed them anyway. The state was not concerned with the forgery, but with the amount of pills. I dont recall how many he had, but it was alot.
The prosecution's theory was that nobody could take that many pain killers, so he had to be selling them. He went to trial, lost and got sentenced to a 25 yr min man for trafficking. the judge was sympathetic, but his hands were tied at sentencing. The SAO didnt care and asked for the min man.

He checked into prison, was evaluated by prison doctors and was deemed to be in need of pain killers 24 hours per day. He now has a morphine pump courtesy of the Florida Department of Corrections.

Anonymous said...

I left the SAO before finishing my commitment because I refused to be a robot. I had no authority to nolle prosse a charge that I knew I could not prove beyond a reasonable doubt, not because of my trial skills, but because of the evidence. Towards the ends, I grew a pair and started offering pleas and entering nolle prosses without direct approval because it was the right thing to do in light of the circumstances. I quit, and now I'm trying to find my own business to defend the people I once was unfair to. If only I knew then what I know now.

Rumpole said...

4:13- the problem is that what you suggest is NOT the Judge's job. It is the job of the prosecutor. The Judge runs into a problem making a plea offer because if it is rejected, and the case goes to trial, the judge is handcuffed into imposing the same sentence after trial.

To answer the second part of your question- the answer is no. And without making fun of you, you need a sophisticated understanding of how things work to understand why.

Any third degree felony carries a 0-5 year sentence. A first offense usually carries a probation to 364 Guideline sentence. Yet, Grand theft of a car, or simple possession of cocaine rarely result in a 364 sentence, which would be within the guidelines for a first offense. Such a sentence, while legal, would be considered harsh, as literally hundreds of thousands of other defendants similarly situated have been treated less severly. Therefore, to just say a sentence is within the guidelines, without more, is not really a defense to a plea offer.

fake pat shugrue said...

now i'm confused.
if blecher isnt the real johnny "no slope", then who is? thinking about it, maybe its a confusion with other johnnys:

johnny "no deals" elso
johnny "no fear" kastrenakes
johnny "no suits" hogan

curious law student said...

Rumpole - Thank you for taking the time to answer my questions. So, if the sentences imposed rarely reach the upper end of the guidelines, are the prosecutors the problem or are the guidlines? Is a 5 year sentence for grand theft ever appropriate?

I just completed an internship at the SAO and I've learned two things:
1) Lawyers curse a lot
2) The good guys aren't always the good guys

Anonymous said...

The problem is the stupid law of trafficking by possession with its minimum mandatory sentences and the stupid prosecutors that enforce those laws in inappropriate cases where no selling is taking place and the defendant clearly needs the pills.

To 3:05:00 pm, the judge in this case did not even know how to read the statute. It's not a matter here of doing the right thing, it's a matter of having reading comprehension and understanding the qualifiers and modifiers of statutory language.

Gary Ostrow, Esq said...

I find it a bit mindblowing that there has been no discussion relative to the absurdity of the trafficking 25 year min man, without a script!! It is no less disgraceful that both broward and dade drug trafficking units are void of any sense of fair play, justice or prosecutorial discretion when, with a straight face, they can actually look us in the eye and express their belief that a 32 year old vicodin-addicted first- offender female pharmacist is FSP material, for the next 25 years of her life because she illegally possessed 35 pills! it was of no consequence that there was absolutely no evidence of anything that remotely suggested anything beyond personal consumption in accord with her addiction.It is a far more serious crime to prosecute these types of cases as 'Trafficking" counts under the 25 -year minumun mandatory statute than it is to suffer the disease of addiction and violate the law in the process of feeding that addiction.It will never cease to amaze me how ANY HUMAN BEING, never mind a prosecutor who is bound by the canons of ethics and the duty to exercise prosecutorial discretion. This continuing and systematic cycle of abuse and injustice is perpetrated by the blind, brain -dead and heartless attorney's for the state as a standard operating procedure.THESE ARE THE REAL CRIMINALS AND THOSE WHO SHOULD BE FEARED. After 26 years of of practice,I dont know how much more I have in me when this despicable and senseless practice continues unabated.