I've Got Nothing Here

This story is so bizarre and outrageous, I can hardly believe it's true.

Tampa's Mark O'Hara was released from prison this week. He was serving a 25-year sentence for possession of 58 Vicodin tablets. Prosecutors acknowledge he wasn't selling the drug. They acknowledge that he had a prescription for it. At his trial, two doctors testified they'd been treating O'Hara since the early 1990s for pain related to gout and an automobile accident.

But prosecutors inexplicably brought drug trafficking charges anyway, because as the article explains, "Under the law, simply possessing the quantity of pills he had constitutes trafficking."

This is simply stunning. The man was sentenced to 25 years for possessing 58 pills for which he had a legal prescription.

Prosecutors then argued—and the trial court agreed—that the jury was not allowed to consider the fact that O'Hara had a prescription because Florida statutes governing painkillers don't allow for a "prescription defense," as if that rather crucial fact were some mere technicality those ACLU-types are always using to get criminals off the hook.

I suppose we should expect little from the state that put Richard Paey away for 25 years. But this is insanity. My guess is that O'Hara's prior drug conviction (in the 1980s) and the small amount of pot also found in his truck blinded the prosecutors' and judge's discretion. Gotta' get this guy for something, right?

O'Hara is free after an appellate court rightly deemed the trial "absurd" and tossed out the verdict. Prosecutors are apparently still considering what to do next.

Given the way they've wasted taxpayer money and court time and needlessly harassed Mr. O'Hara, in a just world their "next step" would be submitting their own letters of resignation.

Comments

VM | July 27, 2007, 10:15am | #

BITE IT, PROGLIB and JimmyDAGEEK!

SEE - TAMPA TAMPA TAMPA!!! NOT JUST CHICAGO!!!

humperdink.

pttttttfffffffff.....

JasonL | July 27, 2007, 10:16am | #

ARRGGHHH!

D. Greene | July 27, 2007, 10:16am | #

Those prosecutors should be charged with misconduct, and sent to fucking jail.

x,y | July 27, 2007, 10:16am | #

You nailed it Radley:

1. Unjust prosecution.
2. Unjust sentence.
3. Waste of court time.
4. Waste of taxpayer money.

Bronwyn | July 27, 2007, 10:19am | #

Why send this guy to jail? All he did was pay for the baggie handed him by the pharmacist. The pharmacist is the real evil-doer here. Somebody send the SWAT team to Walgreens, quick!

I'm just glad the apellate court did the right thing.

UCrawford | July 27, 2007, 10:20am | #

I'm pretty cynical about the government as a rule anyway, but this is just absolutely unbelieveable. Where's the state bar in all of this?

Billy Bob Smith | July 27, 2007, 10:21am | #

"Under the law, simply possessing the quantity of pills he had constitutes trafficking."

If that is waht the law says it has to be enforced.

Prosecutors then argued—and the trial court agreed—that the jury was not allowed to consider the fact that O'Hara had a prescription because Florida statutes governing painkillers don't allow for a "prescription defense," as if that rather crucial fact were some mere technicality those ACLU-types are always using to get criminals off the hook.

Agreed, it is a mere tecnicality, nobody needs that much drugs.

They need to also file charges cause they found him with the weeds. Drug addicts are not allowed painkiller prescriptions by law. I think the purpose of this is to trump up the weed charges. Because of the pot and the past conviction, he needs some good 'ole fashioned SEVERE PUNISHMENT, including prison and rape in prison, perhaps death for his crimes against society.

neidermann | July 27, 2007, 10:22am | #

While I agree that the whole thing is pretty absurd, can somebody explain why the prosecutors are guilty of misconduct and should resign?

Prosecutors don't write the laws, and their job is to represent the wishes of the people in a criminal case against an individual. Well, it seems that the people generally want really harsh drug laws, and unless some ethics rules were broken or what not it's hard to see what the prosecutors did wrong here.

P Brooks | July 27, 2007, 10:22am | #

This is the sort of situation where I would, Honest-to-You-Know-Who, like to see the prosecutor seized in his office on live television and dragged in handcuffs to the state penitentiary, and made to serve the balance of O'Hara's sentence

Reinmoose | July 27, 2007, 10:25am | #

Of course the jury would come back with a guilty verdict because they were told, almost flat out, that they could not consider all the things that a reasonable person would have to consider.

Hi, are you an obedient sheep?
Yes
Welcome to the jury!

jkp | July 27, 2007, 10:26am | #

Radley,

I think the 'just world' scenario would either involve tarring & feathering, pistols at dawn with Mr. O'Hara, or (my favorite,) firing squad.

ktc2 | July 27, 2007, 10:26am | #

So long as prosecutors have prosecutorial discretion "I was just enforcing the law." is even less an excuse than "I was just obeying orders."

UCrawford | July 27, 2007, 10:28am | #

Neidermann,

The prosecutors are guilty of misconduct because they charged a man with committing a crime (possessing 58 Vicodin) when they knew that no crime had been committed (he had a prescription). The fact that the judge was incompentent enough to exclude that fact from the jury is beside the point, they knowingly prosecuted a man for a non-criminal act. Actually, the judge's decision probably isn't beside the point. Whoever presided over that trial certainly deserves to have his job performance closely reviewed as well.

joe | July 27, 2007, 10:33am | #

The prosecutors are guilty of misconduct because they charged a man with committing a crime (possessing 58 Vicodin) when they knew that no crime had been committed (he had a prescription).

It is a crime because Florida law does not allow a 'Prescription Defense'. It may seem unfair but the fact is he had pot and this was probably a way to increse the charges.

Regardless if he was innocent, he seems like a low life dirtbag and there needs to be some way to get these types into prison.

D. Greene | July 27, 2007, 10:36am | #

Regardless if he was innocent, he seems like a low life dirtbag and there needs to be some way to get these types into prison.

LOLOLOlOLOLOL. That had me actually laughing out loud.

Reinmoose | July 27, 2007, 10:36am | #

Regardless if he was innocent, he seems like a low life dirtbag and there needs to be some way to get these types into prison.

DRINK!
(is this an appropriate time? I never knew how this game worked...)

entropy | July 27, 2007, 10:38am | #

So, will Mr. O'Hara be reimbursed by the state for the possessions he had to liquidate? What's the typical procedure/outcome for something like that?

While the prosecutors for this case are clearly asshats, so are the jurors.

neidermann | July 27, 2007, 10:38am | #

UCrawford: thanks.

What I'm still unclear about is this - when it's said that Florida does not have a "prescription defense" I took it to mean that if you have an excessive amount of the drug in question, the fact that you had a prescription does not get you off the hook. Am I wrong about that?

Also it's worth noting that O'Hara is a convicted coke dealer and frankly carrying around 58 vicodins on your person does raise the possibility that he was selling them.

JasonL | July 27, 2007, 10:41am | #

AP: Mayors from Chicago and Tampa met this week to discuss their options for dealing with the onerous "Civil Rights" defence.

jimmydageek | July 27, 2007, 10:43am | #

VM | July 27, 2007, 10:15am | #

BITE IT, PROGLIB and JimmyDAGEEK!

SEE - TAMPA TAMPA TAMPA!!! NOT JUST CHICAGO!!!

humperdink.

pttttttfffffffff.....

That's just childish and petty, VM. You better send a case of fried haggis to The Urkobold&trade immediately, lest your taint be withered by a pack of rabid squirrel minions.

SIV | July 27, 2007, 10:43am | #

Prosecutors then argued—and the trial court agreed—that the jury was not allowed to consider the fact that O'Hara had a prescription because Florida statutes governing painkillers don't allow for a "prescription defense," as if that rather crucial fact were some mere technicality those ACLU-types are always using to get criminals off the hook.

Perhaps it is in the article I'm too lazy to read but was the jury unaware he had a prescription or were they aware and told to disreard it as part of their instructions?

Theresa | July 27, 2007, 10:46am | #

"Agreed, it is a mere tecnicality, nobody needs that much drugs."

You can get a better deal on prescriptions through your insurance company if you do mail order. Many times, you will get a 90-day supply for the same co-pay one would pay at a regular pharmacy. So, your "nobody needs that much drugs" is somewhat incorrect.

UCrawford | July 27, 2007, 10:46am | #

Neidermann,

Apparently the appeals court said that this wasn't the case, since they called the prosecution's reasoning "absurd". So I take that and the overturned sentence to mean that their tactic was not in compliance with Florida drug law.

As for his past conviction, it's irrelevant. He had a prescription for the Vicodin and the prosecution had no proof that he was dealing drugs. The law is designed to prosecute people for crimes we have reasonable proof they committed, not for unsubstantiated suspicions of crimes that it's possible they committed. Hell, if the cops followed that approach they'd never have cold cases. They could just prosecute whoever they didn't like in any given week, regardless of whether they had any evidence or not or whether the person was actually guilty or not.

TrickyVic | July 27, 2007, 10:48am | #

"""Regardless if he was innocent, he seems like a low life dirtbag and there needs to be some way to get these types into prison."""

So you want to send people to prison because they seem like a dirt bag? innocent or not?

Jake Boone | July 27, 2007, 10:48am | #

You know those machines that take old cars and crush them into amusing cubes? We need one of those, but for bad judges/prosecutors/cops. We can call it "The Balkonator."

MP | July 27, 2007, 10:48am | #

DRINK!
(is this an appropriate time? I never knew how this game worked...)

Sarcasm and/or parody doesn't count.

ZappaCrappa | July 27, 2007, 10:49am | #

If that's the case...shouldn't that big hypocritical idiot blow-hard Rush Limbaugh be doing life in FL as we speak?

Taktix® | July 27, 2007, 10:52am | #

Agreed, it is a mere technicality, nobody needs that much drugs.

How helpful of the good prosecutor to tell Mr. O'Hara how much of his prescription he actually "needs," seeing as the prosecutor is apparently a qualified pharmacist.

Oh, wait a sec...

Reinmoose | July 27, 2007, 10:52am | #

DRINK!
(is this an appropriate time? I never knew how this game worked...)

Sarcasm and/or parody doesn't count.

Awwwwww :(

neidermann | July 27, 2007, 10:53am | #

Neidermann,

Apparently the appeals court said that this wasn't the case, since they called the prosecution's reasoning "absurd". So I take that and the overturned sentence to mean that their tactic was not in compliance with Florida drug law.

Sounds like that's the case, I agree.

Although I still can't help but think that I could not legally walk around with 10,000 Vicodin pills in a suitcase just because I found a doctor who would prescribe me that many.

SIV | July 27, 2007, 10:54am | #

Jurors weren't told that it is legal to possess the drug with a prescription, which he had.

Sounds like they weren't told he had a prescription. Bizarre.The State can prevent a defendant from defending himself.
That is far worse than instructing the jury to disregard facts not relevant under the law.

Pro Libertate | July 27, 2007, 10:56am | #

VM,

At least we can eat foie gras here. By the ocean. Mmmm, suffering goose with a side of fresh grouper. I understand that Chicago is banning sausage next.

If he's a criminal, then what about the doctor and the pharmacy? This goes all the way to the top of CVS!

ed | July 27, 2007, 10:56am | #

"O'Hara is free after an appellate court rightly deemed the trial "absurd" and tossed out the verdict."

VM | July 27, 2007, 10:59am | #

hrumph.

Troy | July 27, 2007, 10:59am | #

Who is it that gets to determine what sort of defense that you have?
Is there any limitation to this?
If there are no limits, why can't they take away the "I'm not guilty" defense?

Oh, and as far as how much drugs I need, I think that is between me and my doctor and the Pigs shouldn't have anything to say about it.

TrickyVic | July 27, 2007, 10:59am | #

Theresa, some people just don't do the math. If the guy got a thirty day supply of something he has to take 2x a day, that 60 tablets. Getting a 30 day supply is not uncommon.

The problem with this situation is the law. They are barred from using the truth (that it's a prescription) by law. That is unreasonable, but on the books none the less. In reality, if he was trafficking, the doctor should be arrested too. The whole thing is BS. Just another reason not to move to Florida.

UCrawford | July 27, 2007, 11:00am | #

Neidermann,

And if the prosecution had evidence that you were selling those pills illegally, or that the prescription was bogus, or that the doctor was somehow involved in trafficking with you, you'd probably be right. But in this case, the prosecution didn't have that kind of proof, they frivolously prosecuted this guy for legally having 58 Vicodin because they couldn't nail him for anything else. And that is abhorrent.

Taktix® | July 27, 2007, 11:01am | #

I still can't help but think that I could not legally walk around with 10,000 Vicodin pills in a suitcase just because I found a doctor who would prescribe me that many.

The legality of this would be something the jury should decide.

The problem arose when the prosecutor decided it was his job to decided whether or not the case was legal, then withholding evidence to support his decision.

damaged justice | July 27, 2007, 11:02am | #

"...their job is to represent the wishes of the people in a criminal case against an individual."

Which people?

Yeah, that trick always works.

jimmydageek | July 27, 2007, 11:02am | #

At least we can eat foie gras here. By the ocean. Mmmm, suffering goose with a side of fresh grouper. I understand that Chicago is banning sausage next.

And, we can also do REAL deep sea fishing, not the lake type!!

lunchstealer | July 27, 2007, 11:03am | #

joe, was somebody spoofing you in the 10:33 post?

D. Greene | July 27, 2007, 11:04am | #

Would they have been allowed to call the prescribing doctor in as a witness and let the jury use their powers of deduction to figure it out?

This was a prosecutorial hit job because he refused their generous plea bargain.

jimmydageek | July 27, 2007, 11:06am | #

lunchstealer | July 27, 2007, 11:03am | #

joe, was somebody spoofing you in the 10:33 post?

The email used above was joelboyle as opposed to joepboyle...could be a typo, but i assume it was a spoof.

BakedPenguin | July 27, 2007, 11:06am | #

Tampa was also the place where the local DA put up the names of men caught soliciting hookers on billboards. I don't remember if I saw Dondero up there or not.

Reinmoose | July 27, 2007, 11:08am | #

I also think it was a spoof, or at the very least just teasing

Anonymo the Anonymous | July 27, 2007, 11:09am | #

The next step.

Taktix® | July 27, 2007, 11:09am | #

And, we can also do REAL deep sea fishing, not the lake type!!

In addition, in South Florida, you can pretty much get away with whatever if you're not a complete idiot.

The cops here are probably on twice the drugs you are...

SIV | July 27, 2007, 11:12am | #

"...their job is to represent the wishes of the people STATE in a criminal case against an individual."


fixed

Neu Mejican | July 27, 2007, 11:12am | #

Tampa airport police arrested O'Hara in August 2004 after they found the hydrocodone and a small amount of marijuana in his illegally parked and unattended bread truck.

Why not use the mj offense as the basis of prosecution?

Odd.

Neu Mejican | July 27, 2007, 11:13am | #

SIV,

We the people....

SIV | July 27, 2007, 11:14am | #

Tampa was also the place where the local DA put up the names of men caught soliciting hookers on billboards.

Mississippi has mugshot billboards for statutory
rape offenders. The catchphrase is "15 will get you 20"

MP | July 27, 2007, 11:17am | #

Why not use the mj offense as the basis of prosecution?

Because he didn't possess enough MJ to be convicted under the distribution statute.

Neu Mejican | July 27, 2007, 11:18am | #

Tampa was also the place where the local DA put up the names of men caught soliciting hookers on billboards.

This sounds like a very libertarian thing to do.
Public shame/shunning is supposed to be the preferred tool for behavior the community doesn't sanction. If you aren't embarrassed about you solicitation, you won't care. If you are, then you shouldn't have been soliciting.

VM | July 27, 2007, 11:18am | #

I sorry Mr. DaGeek.

Have sent canned haggis fritters straight away!

SIV - so they're advocating gambling?

[ducks]

Tony Borell | July 27, 2007, 11:20am | #

Well, at least the prison administrator behaves like an actual human.

dhex | July 27, 2007, 11:20am | #

man, it's like florida's prosecution system was reading all the wacky totalitarian routines about freeland and interzone in naked lunch and said "hey, this is an awesome idea!"

the patriot act has that whiff too, not just because of the stupid name.

Taktix® | July 27, 2007, 11:22am | #

Why not use the mj offense as the basis of prosecution?

Because he didn't possess enough MJ to be convicted under the distribution statute.

Last I checked, Florida has a mandatory 1 year/$1000 fine for the 1st-Time possession. You'd think these fascists would be happy to settle for that...

Tampa City Commission | July 27, 2007, 11:22am | #

At least he was more than six feet away from any nude dancers.

MP | July 27, 2007, 11:26am | #

This sounds like a very libertarian thing to do.

Because clearly libertarians have a complete disregard for privacy rights.

Bob Smith | July 27, 2007, 11:29am | #

That "prescription defense" concept is strange. I doubt Florida's murder statute expressly permits an "I wasn't there" defense to a murder charge, yet defendants are still allowed to use that defense in a murder trial. Unless Florida's drug statutes expressly *prohibit* "I have a prescription" as a defense the prosecutor's reasoning, as the appellate court thankfully found, is absurd. Any defense should be permitted unless expressly prohibited by statute.

Reinmoose | July 27, 2007, 11:31am | #

Actually NM, the "libertarian" thing to do would be to say "who gives a s*** that he solicited a hooker" and move on with your lives.

Lamar | July 27, 2007, 11:32am | #

"Prosecutor Darrell Dirks acknowledged that the state erred in leaving out a jury instruction regarding prescriptions."

No, Darrell, "erring" is when you do it unintentionally.

Inigo Montoya | July 27, 2007, 11:34am | #

"This sounds like a very libertarian thing to do. "

You keep saying that word. It does not mean what you think it means.

Anonymo the Anonymous | July 27, 2007, 11:35am | #

Prosecutor Darrell Dirks? Wasn't he an extra in Boogie Nights?

Reinmoose | July 27, 2007, 11:36am | #

Inigo Montoya wins the thread!

Reinmoose | July 27, 2007, 11:36am | #

(except he misquoted it, but meh.. the spirit was there)

ktc2 | July 27, 2007, 11:38am | #

58 Vicodin is NOT a lot. Would be less than 30 supply at 2 a day which is not at all uncommon, in fact below the norm.

BakedPenguin | July 27, 2007, 11:38am | #

Prosecutor Darrell Dirks? Wasn't he an extra in Boogie Nights?

No, you're thinking of Logjammin'

Frank | July 27, 2007, 11:39am | #

Why not use the mj offense as the basis of prosecution?

It is a lesser charge, because of his past they want to get him away for good.

This was a prosecutorial hit job because he refused their generous plea bargain.

That is the way it is designed to work, a prosecuters job is NOT to get justice, it is to get convictions. You have the right to defend yourself, but the odds are you'll lose and you best take the plea and give the prosecutor his conviction.

Who is it that gets to determine what sort of defense that you have?

The prosecuter instructs the judge.

Is there any limitation to this?

No, if a defense is likely to get the defendant off, it can be excluded to assure a conviction. Again, yo should take the pleaa if you are innocent.

It is not about justice or fairness, it is about a game the lawyrers play to get the most convictions, your defense is to take the plea.

Frank | July 27, 2007, 11:40am | #

Any defense should be permitted unless expressly prohibited by statute.

What if the defense will prevent the prosecuter from getting a conviction in a case where the defendant is likely guilty?

Dr.GregoryHouse | July 27, 2007, 11:40am | #

58 Vicodin is NOT a lot.

I'll say. Friggin' cops.

Tommy_Grand | July 27, 2007, 11:41am | #

"Last I checked, Florida has a mandatory 1 year/$1000 fine for the 1st-Time possession. You'd think these fascists would be happy to settle for that..."

Clearly you have not been to prosecutor school. I learned from the best. To get leverage, find ways to increase the sentence range. If they call your bluff, throw the book at 'em. My instructor's motto: "probation is for the innocent."

immoral IMO

John | July 27, 2007, 11:51am | #

Unless your name is Mike Nifong, prosecutors are never held responsible for anything they do. Gee we are really sorry we ruined your life.

de stijl | July 27, 2007, 11:58am | #

Tommy_Grand,

Are you being snide or is your story true? If true, that's frickin' chilling. Authoritarians will be the death of this country.

neidermann | July 27, 2007, 12:01pm | #

Really, when you get down to it this case is the fault of the original trial judge for disallowing the prescription defense.

Which is why we have appeals.

Deuteros | July 27, 2007, 12:04pm | #

nobody needs that much drugs.

Try breaking your leg and then tell me you don't need that many pills.

Lamar | July 27, 2007, 12:06pm | #

"probation is for the innocent"

About sums up every prosecutor I've met. I put them next to John Edwards-style ambulance chasers on the list of really shitty things to do with your life.

Rex Rhino | July 27, 2007, 12:06pm | #

Regardless if he was innocent, he seems like a low life dirtbag and there needs to be some way to get these types into prison.

This kind of statement seems a little too extreme, even for joe. Is this someone imitating joe? Or is this satire that went over my head?

JSiobhan | July 27, 2007, 12:07pm | #

I have migraines and carry pain meds for emergencies. My mother is from that state but doubt I will ever vacation there again.

30 year prof | July 27, 2007, 12:18pm | #

NEVER, ever, consent to a search of your person, vehicle or property. Never. Not even if you "know" you've done nothing wrong.

Make the police work for every injustice they try. Remember Officer Friendly, isn't.

Episiarch | July 27, 2007, 12:18pm | #

"probation is for the innocent"

Chilling indeed. Every prosecutor I've ever dealt with (and it's been a few >:-0 ) has been a fucking asshole without a shred of decency or pity. I even had one bring up an erased conviction even though it was supposed to be, well, erased.

I have also noticed frequent Napolean complexes in prosecutors (male ones, anyway).

Timothy | July 27, 2007, 12:21pm | #

What if the defense will prevent the prosecuter from getting a conviction in a case where the defendant is likely guilty?

Who the fuck cares?

The $50 is the new $20 | July 27, 2007, 12:22pm | #

You can tell that the folks who wrote the law know how awesome a Vicodin buzz can be.

Chris S. | July 27, 2007, 12:23pm | #

I'm pretty sure that was a Joe imposter, but he has yet to respond. Joe?

Neu Mejican | July 27, 2007, 12:24pm | #

MP, Reinmoose, Inigo,

I am not talking about whether or not soliciting a hooker should be sanctioned by the community or not, just what kinds of sanctions the community should use.

Compare and contrast publicizing those who break community taboo, to locking them up.

Which is the more libertarian choice?

Jennifer | July 27, 2007, 12:25pm | #

Prosecutors then argued—and the trial court agreed—that the jury was not allowed to consider the fact that O'Hara had a prescription because Florida statutes governing painkillers don't allow for a "prescription defense,"

HOW is that even LEGAL? Seriously: that's like saying if I'm on trial for murder because I shot a would-be rapist who broke into my home at three a.m., state statutes don't allow for a "self-defense defense."

How is it legal to make a law stating "you can't mention TRUE FACTS in a criminal trial?" What. The. Fuck?!

de stijl | July 27, 2007, 12:33pm | #

Jennifer,

I assume it's because they want to be able to prosecute someone with an out-of-state presciption for medical MJ.

Neu Mejican | July 27, 2007, 12:37pm | #

A CATO discussion on the utility of shaming.

http://www.cato.org/dailys/02-16-00.html

joe | July 27, 2007, 12:37pm | #

That's just weird.

Is it possible, Mr. Balko, that you're leaving out part of the story?

joe | July 27, 2007, 12:39pm | #

Yes, that was a spoof joe at 10:33. It sounded like Juanita.

wayne | July 27, 2007, 12:42pm | #

Well, if O'Hara is freed that could affect the price of Vicodin in neighboring Georgia because O'Hara is likely to travel to Georgia and while he is there he won't buy any Vicodin because he already has a substantial stash. The commerce clause clearly allows the government to intervene here.

I have no idea what I just said, but the conclusion is valid; the commerce clause clearly allows the government to rule here.

Neu Mejican | July 27, 2007, 12:46pm | #

MP, Reinmoose, Inigo,

Please couch your response in terms of the non-aggression principles central to libertarian thought on justice.

Scooby | July 27, 2007, 12:48pm | #

Really, when you get down to it this case is the fault of the original trial judge for disallowing the prescription defense.

Which is why we have appeals.

All well and good, except for a mostly innocent person sitting in the clink while the slow-ass appeals process grinds.

Maybe the judges and prosecutors need some skin in the game. Judicial and Prosecutorial malfeasance that results in deprivation of liberty should be a criminal offense.

Jennifer | July 27, 2007, 12:48pm | #

Neu Mejican, there is a huge difference between individuals in a community deciding that certain behaviors are shameful, versus the government making that decision.

Embrace this difference. Learn to recognize it.

Neu Mejican | July 27, 2007, 12:50pm | #

Community law X is broken.

Choice. a) Put law breaker in prison or b) publicize that they broke the law.

Which is a greater threat to liberty? a or b?

Choice c, of course, is to repeal law X...but that just avoids the question.

Jennifer | July 27, 2007, 12:53pm | #

Which is a greater threat to liberty? a or b?

That would be "D," the Dolt who thinks that since choice B is less odious than choice A, that means choice B exemplifies the Libertarian Way.

Neu Mejican | July 27, 2007, 12:55pm | #

Jennifer,

Learn to recognize when your points are vacuous.

"...government of the people, by the people, for the people..."

Rush Limbaugh | July 27, 2007, 12:55pm | #

>

I know. For me thats just Saturday Night.

Robert | July 27, 2007, 12:56pm | #

What about the "that wasn't me" defense? Or the "those aren't Vicodin" defense?

Jennifer | July 27, 2007, 12:56pm | #

Learn to recognize when your points are vacuous. "...government of the people, by the people, for the people..."

Learn to recognize when pretty phrases don't accurately reflect reality.

MikeP | July 27, 2007, 12:58pm | #

The State, that is the coldest of all cold monsters. Coldly, also, it lies, and the lie that creeps from its mouth is this: "I, the State, am the People."

-- Friedrich Nietzsche

Neu Mejican | July 27, 2007, 12:58pm | #

Jennifer,

Ha.

Did you just claim access to an accurate view of reality?

Neu Mejican | July 27, 2007, 1:00pm | #

Nietzche's very eloquent.

The state, however, is a process of human interaction, not an anthropomorphic entity.

Neu Mejican | July 27, 2007, 1:02pm | #

By the way Jennifer,

Choices d-n are also avoiding the question.

Eryk Boston | July 27, 2007, 1:03pm | #

Actually, a prosecutor's job IS to get justice, not simply get convictions by any means. It is one of the few jobs a lawyer can do where they have to consider more than winning for their client and the basic rules of ethics.

Furthermore, all lawyers have an ethical duty to not make a claim when they know it has no basis in fact. (you can stop laughing now, I'm actually being serious) In addition matters of professional ethics and integrity, simple human decency requires that a prosecutor forgo a charge of intent to distribute when they know damn well that there was no intent to distribute.

MikeP | July 27, 2007, 1:05pm | #

The state, however, is a process of human interaction, not an anthropomorphic entity.

Then you of course realize that the word people in "...government of the people, by the people, for the people..." refers to three different and only mildly intersecting sets of people.

bigbigslacker | July 27, 2007, 1:06pm | #

I hope someone kills the prosecutor. Is it ok to say that?

Jennifer | July 27, 2007, 1:07pm | #

Neu Mejican, I am pointing out that your false dichotomy is, in fact, false. First you're saying that the government shaming people out of behaviors it doesn't like is no different from the ideal libertarian solution of the community spontaneously using shame to convince people to avoid certain behaviors; then you pretended that the lesser of two government evils must be synonymous with the libertarian ideal. No: the lesser of two evils is still evil.

John David Galt | July 27, 2007, 1:09pm | #

This case is so bogus on its face, I can't believe it could have been honestly brought. Both the DA and judge must have criminal motives that haven't come to light yet.

This illustrates why victims desperately need the power to prosecute crimes themselves. Those two scum-with-badges, and plenty more like them, will continue persecuting innocent people until somebody is allowed to prosecute them.

Another Phil | July 27, 2007, 1:14pm | #

This sounds like a very libertarian thing to do.

Not if it's done by government officials.

jimmydageek | July 27, 2007, 1:15pm | #

bigbigslacker | July 27, 2007, 1:06pm | #

I hope someone kills the prosecutor. Is it ok to say that?

I think it is. Either way, I'll be joining a group of cyclists in Tampa tonight. Maybe if we spot him we can all shove our dérailleurs up his ass...

ChicagoTom | July 27, 2007, 1:21pm | #

58 Vicodin is NOT a lot. Would be less than 30 supply at 2 a day which is not at all uncommon, in fact below the norm.

I'll second this.

Post knee surgery, I had my Hyrdocodone (which pills with me. I was taking 1-2 pills every 4-6 hours and I was explicitly instructed not to tough it out, because if the pain gets out of control it will be that much harder to get it back under control.

2 pills every 6 hours (lets assume the max) would be 8 pills a day. One week alone would be 56 pills. Even in smaller doses, 1 pill a day every 6 hours -- 58 pills would would be 15 days worth of dosage.

Granted the dosages could be different, but either way, that is still not excessive.

Joshua Cook | July 27, 2007, 1:28pm | #

I seem to remember something about ...
our system of law not utilizing cruel or
unusual punishment.. How can our famous actors, actresses, and politicians sons go free, or hit rehab, yet this man has 25 years of jail.. What about Rush Limbaugh?

Jimmy Smith | July 27, 2007, 1:44pm | #

Good thing Mr O'hara wasn't caught cuffin' his carrot, as well. Good bye, daylight.

SIV | July 27, 2007, 1:45pm | #

ITT



I agree with MikeP!

update | July 27, 2007, 1:49pm | #

http://www.sptimes.com/2007/07/26/Hillsborough/Freed_man_still_in_li.shtml

Mark A. Ober | July 27, 2007, 1:52pm | #

Mark A. Ober is the State Attorney for the Thirteenth Judicial Circuit of Florida. He was awarded a Bachelor of Arts degree in English from the University of Florida in 1973. He earned his Juris Doctor degree from the South Texas College of Law and was admitted to the Florida Bar in 1977, when he began a career as an assistant state attorney. In that capacity, he worked his way through the ranks to become Felony Bureau Chief, Chief of the Major Crimes Division, Chief of the Career Criminal Division and Chief of the Homicide Division.

Mr. Ober entered private practice in 1987 and specialized in criminal defense law until his election to the office of State Attorney in November 2000, by the largest margin seen in over a decade for that office. He is recognized in the legal community as a top criminal attorney, having personally chaired over 250 criminal jury trials, including over 40 first degree murder convictions.

Gideoon's Trumpet | July 27, 2007, 1:53pm | #

The prosecution should be allowed to spend no more on a case than the defendant spends on defense. The prosecutor should be allowed to put no more atty-hours in on a case than the defendant puts in on defense.

That would not solve just this case. Rather, this proposal would solve the rampant, systemic injustice that will just pop up in another part of the system even if they did fix the pill law.

Prosecutors will start having discretion when we incentivize them in that matter. By giving defendant's better lawyers we incentivize prosecutors to drop the stoopid cases (like this one), and to focus more on the one where defense lawyers will not help.

The problem isn't prosecutorial discretion. Rather it is imbalance in the socialized funding of legal services. Prosecutors get my tax money. Defense lawyers much less so.

Urkobold™ | July 27, 2007, 1:54pm | #

OBER. OBER. ISN'T THAT WHAT THE URKOBOLD'S GOOD FRIEND DARTH VADER IS ALWAYS SAYING?

OBER. OBER.

Robert | July 27, 2007, 2:07pm | #

The fact that the light was green is no "defense" against your ticket for not having stopped at the intersection, I guess. The fact of your having a license is no defense against the charge of your having practiced medicine. The fact that you live there is no defense against a trespassing charge.

It's easy when you have to prove only one fact. They went thru the intersection without stopping, practiced medicine, and were on the premises.

Carina | July 27, 2007, 2:19pm | #

A quote from the same prosecutor, different case (Darryl Strawberry's probation violation):

"He didn't like someone telling him what to do," Dirks told the judge. "At some point he should be punished for that."

Neu Mejican | July 27, 2007, 2:25pm | #

MikeP,

Yes. Although I would disagree with the characterization of the intersection as "only mildly."

Jennifer.
The false dichotomy you are pointing out exists only in your interpretation of what I wrote.

I never suggested the black and white reading you seem to have made of my comment.

I am not pretending anything about "ideal" or "synonymous" in my comment. Simply that publicizing rather than prison is the more libertarian choice. A libertarian minded government that chose a over b would be acting in a way closer to the libertarian ideal...not, as in all things in the world, perfectly in line with that ideal.

Neu Mejican | July 27, 2007, 2:29pm | #

Jennifer,

Here is where the conflict between what I said and what you read occurs...

First you're saying that the government shaming people out of behaviors it doesn't like is no different from the ideal libertarian solution of the community spontaneously using shame

I never said there was no difference between the two situations. My comments were restricted to characterizing the governments actions in contrast to other actions by the government.

ktc2 | July 27, 2007, 2:31pm | #

Prosecutors in this country are in need of a serious legal smack down. It needs to be made clear their job is to see that the truth comes out so that justice can be done, not to get convictions.

ktc2 | July 27, 2007, 2:33pm | #

Perhaps if a prosecutors "success", reputation and advancement were calculated by how FEW innocents they've sent to jail.

Neu Mejican | July 27, 2007, 2:36pm | #

And Jennifer,

I would like to point out the community spontaneously using shame might involve banding together to buy a billboard. One possible mechanism for this community action might be referred to as...the government.

Others exist, of course.
Government is in a very real sense just a formalized incidence of spontaneous community actions.

Neu Mejican | July 27, 2007, 2:41pm | #

Jennifer,

What does this mean?

the government shaming people out of behaviors it doesn't like

When you use the term government here, how is it distinct from "community" used later in your statement?

Governments don't "like" or "dislike" things.

The need for an anthropomorphic characterization of government seriously confuses discussions of policy.

Jennifer | July 27, 2007, 2:49pm | #

When you use the term government here, how is it distinct from "community" used later in your statement?

The government has the power to confiscate your property, put you in jail or even kill you, if it wants. The community does not.

Neu Mejican | July 27, 2007, 2:51pm | #

On to an even more obtuse tangent of the "community/government" dichotomy...

Compare and contrast--

Individuals have the right to assemble.
Members of a community have the right to assemble.
Communities have the right to assemble.
Government cannot restrict the right of assembly.

What relationship to the community does this imply for government?

At this point I am just avoiding work, of course.

Jennifer | July 27, 2007, 2:51pm | #

The need for an anthropomorphic characterization of government seriously confuses discussions of policy.

Only if you focus on semantics rather than reality. If I say "The government dislikes cocaine users so much it imprisons them," nothing is clarified or accomplished by you saying "The government doesn't 'like' or 'dislike' things." Unless you think changing the subject is an accomplishment.

Neu Mejican | July 27, 2007, 2:52pm | #

Jennifer,

The government has the power to confiscate your property, put you in jail or even kill you, if it wants. The community does not.

A long history of lynchings in the US would say that you are wrong on this point.

Neu Mejican | July 27, 2007, 2:53pm | #

semantics rather than reality

Semantics = meaning

Focusing on the meaning of propositions is essential for clear discussion of policy issues.

Neu Mejican | July 27, 2007, 2:54pm | #

I believe, Jennifer, that our main disagreement is about where the source of government power lies/ flows from.

Wesley | July 27, 2007, 2:55pm | #

I was on Vicodon when I got out of the hospital. 58 tablets is a couple of weeks' supply for a chronic pain patient on only a moderate amount, which is hardly that unreasonable of an amount to have. Hell, I had almost that many on me at one point when I left my pills at my dad's so I had to get my refill early. I guess I'm a drug dealer!

Neu Mejican | July 27, 2007, 3:02pm | #

Jennifer,

To wit:

If I say "The government dislikes cocaine users so much it imprisons them," nothing is clarified

Let me clarify... The government does not like or dislike things. Rather, the community develops a process by which members who use cocaine can be imprisoned. The community designates certain individuals to carry out that process, and others to oversee that process to assure that it is in line with the wishes of the community members. When these agents of the community (aka government officials) act in opposition to the wishes of the community, it can withdraw that agent from service and replace with another with a better understanding of the process the community has developed.

Semantics.

Neu Mejican | July 27, 2007, 3:05pm | #

It is because this process of designating agents to carry out the wishes of the community members in reality gives those agents power over other members of the community, that the government agents role needs to be specified and limited, with clear procedures for taking away that power when it is abused.

Bob Smith | July 27, 2007, 3:05pm | #

What if the defense will prevent the prosecutor from getting a conviction in a case where the defendant is likely guilty?

Why is the prosecutor bringing a case that's so weak they can't break the defense? "Likely" isn't good enough. If, for example, the defendant claims "I wasn't there and have witnesses to prove it", prove the witnesses are lying or set the defendant free. The prosecutor's "gut instincts" about the issue are irrelevant and prejudicial.

By the way, no criminal statute permits an "I wasn't there" defense. That's because it's assumed that a defendant may present any material fact in defense of the charges. Since the law can't know in advance what facts may be material, it doesn't say what facts may be presented in defense. If mere possession of a substance is a crime, a license to possess it e.g. a prescription would seem to be a material fact, would it not? That's why this prosecutor's conduct is so reprehensible; he tried to keep material facts from the jury.

Neu Mejican | July 27, 2007, 3:08pm | #

One option that a community might use to limit the power than government agents have over community members is to develop a process whereby crimes are punished not with prison, but with a public shaming... using, let's say, a billboard that simply identifies members acting in a way that goes against standards the community has agreed upon and formalized at some previous point in its history.

This mechanism will automatically adjust to community standards as behaviors that are codified, but no longer important to the community will not result in negative consequences for the individual.

I am, of course, speaking very schematically here.

Tommy_Grand | July 27, 2007, 3:13pm | #

"The state, however, is a process of human interaction, not an anthropomorphic entity."

Can you prove that?

Seriously though, in criminal law there are Statutory Defenses to many crimes (such as self-defense). Statutory Defenses have specific requirements for exculpation. I realize this is semantic, but it is not considered a Defense (big D) to say "It wasn't me." The state has the burden to prove it was you; that fact is an element of the offense. If they fail to prove it, you walk. You are not required to disprove it (often a logical impossibility). An 'Affirmative Defense' is something which (if you can prove it) exculpates you even though the state successfully proved each element of the offense as defined under the relevant penal code.

So, anyway, there is a difference in this context between what people usually mean by "defense" and statutory Defense.

df | July 27, 2007, 3:23pm | #

Except for a few comments, it doesn't seem to be recognized that it's also (1) the voting public who select legislators who (2) enact laws like this who have a significant share in the blame also. Everyone in Florida who wanted "tough on crime" legislators/governors, judges and prosecutors who won't let criminals "get off on technicalities" and voted accordingly has a share of responsibility.

Frank | July 27, 2007, 3:28pm | #

If mere possession of a substance is a crime, a license to possess it e.g. a prescription would seem to be a material fact, would it not? That's why this prosecutor's conduct is so reprehensible; he tried to keep material facts from the jury.

What do we do in cases where the material fact will prevent the government from getting the conviction. Sometimes the prosecuter may not be able to prove guilt but the 'feel' that the defendant is guilty so they need to be able to exclude facts to get the case.

Frank | July 27, 2007, 3:32pm | #

Also, what do we do in the cas of someone who isn't guilty of anything, but they are just a dirtbag who belongs in prison? The prosecutor needs some way of getting these convictions. If you are innocent, take the plea.

MikeP | July 27, 2007, 3:37pm | #

The community designates certain individuals to carry out that process, and others to oversee that process to assure that it is in line with the wishes of the community members.

All you are doing is defining "community" as "those members of the community who direct and/or support the government".

In effect, you are defining away the elements of "community" that distinguish it from "government" in the eyes of libertarians.

Semantics.

ZappaCrappa | July 27, 2007, 3:39pm | #

It's a shame that ALL lawyers (prosecuting or defense) and judges can't be held to the same accountability that we hold Doctors to. But it's not surprising since the lawyers are usually the ones who end up being elected to public office and making the laws regarding the conduct of their own profession. Maybe we should just have a "lawyer season" for 1 or 2 weeks every year to thin the herd. I'd vote for it.

Fark Me | July 27, 2007, 3:48pm | #

What do you expect for a state that decided Bush was our president??????

Pro Libertate | July 27, 2007, 3:50pm | #

Mother Farker,

Hey, now. There were other states that voted Bush. Just 'cause it was close here doesn't make Florida responsible.

Sam | July 27, 2007, 3:55pm | #

58 pills? Hell, I was prescribed 24 of vicodin then told to follow up in two days for a minor back injury, much less long term treatment.

Ted R | July 27, 2007, 3:56pm | #

I like how all the ACLU types (read communists) think laws like this are just fine and acceptable when people like Rush Limbaugh are having legal issues..

But the moment it might hurt somebody who shares their world view, it becomes "bad" and "wrong".

Geotpf | July 27, 2007, 4:01pm | #

Ted R-The ACLU filed a "friend-of-court" motion on Rush Limbaugh's behalf. You moron.

http://www.foxnews.com/story/0,2933,108140,00.html

ZappaCrappa | July 27, 2007, 4:01pm | #

"I like how all the ACLU types (read communists) think laws like this are just fine and acceptable when people like Rush Limbaugh are having legal issues.."

Not being an ACLU type (read communist) myself...I think it's ALL ridiculous. But Rush's problem is hypocrisy which I'm sure is why people (including myself) gloated over his being publicly revealed for the hypocrite he is. If he were NOT a hypocrite...he should have held up his hand with it's formerly nicotine stained fingers and demanded to be locked away for life or executed as he has publicly said on his radio show should happen to drug users and addicts. ; )

Fred | July 27, 2007, 4:01pm | #

The court's opinion is online. The real facts are even more bizarre than they first appear. Florida explicitly has a prescription defense, set forth in the possession section. The State argued that while this applied to those charged with possession, it didn't apply to possessing trafficable quantities. That is what the Court says was absurd. Because it is.

What's even worse is the way Florida defines trafficable quantities. The quantity of the controlled substance is deemed to be the total weight of the pill, so you combine the 5 mg of hydrocodone with the 500 mg of acetaminophen in the Vicodin for a total of 505 mg per pill. So O'Hara didn't need to have 58 pills to face 25 years. He only needed 8.

Arnold | July 27, 2007, 4:12pm | #

I see. I typically get a 2 month prescription for amphetamine (aka Adderall) for ADD.

Does this mean I can be arrested and convicted on drug charges in Florida for my perfectly legitimate medical prescription too.

To the morons who think the DA did an OK thing, just wait until it's *your meds*.

Further the DA has plenty of discretion on who they prosecute and what charges they file. They ARE NOT EXCUSED from responsibility simply "because the law says so". There are plenty of laws on the books that aren't routinely enforced simply because the prosecutor decides not to.

teddy | July 27, 2007, 4:15pm | #

But it wasn't just about the vicodin.

Neu Mejican | July 27, 2007, 4:16pm | #

MikeP,

All you are doing is defining "community" as "those members of the community who direct and/or support the government".

I don't think a was careful enough in my definition of community to have done this, but I believe it would be more accurate to say "those members of the community with the right to direct and/or support the government." Disengagement is always an option, of course, but disengagement does not negate your right to participate in the process when it impacts your life.

In effect, you are defining away the elements of "community" that distinguish it from "government" in the eyes of libertarians.

Could you be more specific?

I am saying that government and community are entities of a different order... communities are groups of people (defining membership is, of course the tricky part), governments are (something like) formalized interactions of community members within their realm of influence.

Neu Mejican | July 27, 2007, 4:20pm | #

A sloppy analogy:

Community = people who speak English.

Government = grammar of English.

Maybe not so sloppy, actually.

robert | July 27, 2007, 4:25pm | #

Charge him for the pot. The rest is just bullsh-t. Florida can't get wiped out by a tsunami fast enough.

David | July 27, 2007, 4:30pm | #

"Again, yo should take the pleaa if you are innocent."

Now that is downright scary. Let's say, for example, someone who I happen to hate does something stupid like sticks a fork in an electric socket and dies. I am at the time at a dinner party. My GF, several friends, the waiter, and since I happen to have paid my signature and the date and time on the bill (I paid by credit card) all prove that I was there. In fact, I am even visible on the restaurant's security video. But for some reason I end up charged with the crime. It's a murder, so the plea bargain deal is 25 years instead of life. I should spend 25 years in prison for a crime of which I am absolutely innocent? What kind of thinking is that?

cincyitguy | July 27, 2007, 4:35pm | #

if the guy did not carry all of the pills in the pill bottle but rather in a baggy they would have said that he was selling pills. If they would have taken the bottle and there were only two and the rest were at his house, they would have claimed he sold them. the fact is these prosecuters jump at any chance to flex their little muscles and are corrupt. if this guy was a wealthy person he would not have faced this rap. Our legal system is corrupt and its based on money. Two guys get a DUI. One cannot afford an attorney and he gets pegged. The other can afford the best attorney and gets wreckless driving. One is just as guilty as the other however money gets the affluent guy off. This is corruption in my opinion

MikeP | July 27, 2007, 4:40pm | #

Disengagement is always an option, of course, but disengagement does not negate your right to participate in the process when it impacts your life.

I vote in every election I can. No candidate I have ever voted for has ever won office. In what sense can you say I am part of the community that, in your words, "designates certain individuals to carry out that process, and others to oversee that process to assure that it is in line with the wishes of the community members"?

mark | July 27, 2007, 4:42pm | #

So, possession of 58 Vicodin is illegal?

Why haven't the police arrested every pharmacist and drug supplier in the state? On top of that, they can then get the prescription records, and arrest every citizen in the state who has a current prescription.

Neu Mejican | July 27, 2007, 4:43pm | #

MikeP,

You participated in the process that the community designed to make that decision, so you are part of the community. Or do you somehow think that the factions within a community that disagree cease to be members of that community?

That wouldn't make sense to me.

ChicagoTom | July 27, 2007, 4:47pm | #

That's why this prosecutor's conduct is so reprehensible; he tried to keep material facts from the jury.

I understand the prosecutors motivation, but why did a judge allow this? Prosecutors don't get to hide facts, they need the judge to agree to hide them.

What do we do in cases where the material fact will prevent the government from getting the conviction. Sometimes the prosecuter may not be able to prove guilt but the 'feel' that the defendant is guilty so they need to be able to exclude facts to get the case.

So you want a system where guilt doesn't have to be proven and people are convicted not based on facts and data but rather on the feelings of politically motivated prosecutors (like NC's Nifong)?

I would rather live in a system where it's more likely that the guilty go free rather than one where it's more likely that innocents rot in jail


Also, what do we do in the cas of someone who isn't guilty of anything, but they are just a dirtbag who belongs in prison? The prosecutor needs some way of getting these convictions. If you are innocent, take the plea.

Uhmm...we do nothing? If this "dirtbag" who "belongs in prison" did nothing, what makes him a dirt bag and why does he belong in prison?

What kind of stupid fucking questions are these?

Or is my sarcasm meter out of whack?

Neu Mejican | July 27, 2007, 4:48pm | #

MikeP,

I hear that argument frequently on these boards.

It is, in my view, an empty argument.

The question of consent of the individual regarding community level actions is more complicated than the argument implies, it seems to me. Your individual rights help to define the allowable actions the community can take interactions with you. Your membership in the community gives you additional rights beyond those that are basic to all humans. It doesn't however, give you veto rights over the results of the process that has been set up for decision making (beyond those veto rights that are basic to all humans).

Brian | July 27, 2007, 4:56pm | #

This is why I could never serve on a jury. I believe in jury nullification, and would literally never convict someone under conditions like this.

If you think that I would be going beyond what a juror is supposed to do, I recommend reading up on your civic rights. The jury members who sent this man away, in my opinion, have a non-trivial share of the blame for this needless waste of my countries resources.

James King | July 27, 2007, 4:56pm | #

Ray Nifong isn't doing anything at the moment. Maybe he can get new charges brought against this guy.

BOOMER | July 27, 2007, 4:58pm | #

CAN YOU BELIEVE THIS?? MAN, I JUST CHECKED MY KIDS LITHIUM SCRIPT' SAYS SHE GETS 120 TABS PER RE-FILL. I GUESS THAT BOTTLE SHOULD BE LOCKED AWAY FROM SITE, HUH?

MikeP | July 27, 2007, 5:01pm | #

Neu Mejican,

This all started because Jennifer -- rightfully -- distinguished the actions of individuals in a community from the actions of agents of a government. You went on to conflate community and government. You are still conflating them, citing the less interesting dichotomy of which are voters and which are agents.

Let's say that some members of the community buy a billboard and, every month, go down to the courthouse, run through the public record of convictions and find the ten they most dislike, and posts those people's names and their crimes on the billboard.

Now let's say that the city government finds this a disgusting practice and makes it illegal.

Who is community? Who is government? Why do you seem to be unable to view government and community as potentially at odds?

Pug | July 27, 2007, 5:02pm | #

nobody needs that much drugs.

Try breaking your leg and then tell me you don't need that many pills.

I have experience in this area. I broke my ankle heroically [sarcasm/] pulling a child from my swimming pool in February.

Got three prescriptions for hydrocodone, the same drug as Mr. O'Hara. That would be 90 of them. Took every one of 'em, too.

joe | July 27, 2007, 5:03pm |