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July 23, 2007 - St. Petersburg Times (FL)

Editorial: The Nonsensical Trial Over 58 Vicodin Pills

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An appellate court may finally have rescued Mark O'Hara from a life in prison, but nothing excuses the prosecutorial indulgence that put him there.

If possession of 58 doctor-prescribed Vicodin pain pills constitutes drug trafficking, then Florida might as well begin building high-rise prisons.

The trial and conviction so confounded the 2nd District Court of Appeal that Chief Judge Stevan Northcutt must have rushed to his thesaurus.

In calling for a new trial, he described the state's arguments in words like "unreasonable" and "ridiculous" and "absurd." Here's another: inexplicable.

O'Hara is no stranger to illegal drugs. He served a few years in the 1980s for trafficking in cocaine and possessing a hallucinogen, and Tampa airport police found a misdemeanor amount of marijuana when they pulled over his bread truck three years ago.

But his previous experience with the law doesn't somehow convert the 58 Vicodin pills in his truck into a cache of lethal drugs.

Still, Hillsborough State Attorney Mark Ober sought a trafficking conviction with a 25-year mandatory sentence.

Two doctors testified at the trial that they had prescribed the pills for pain from gout and an automobile accident, and no one claimed he was selling the pills.

But Ober's attorneys and Hillsborough Circuit Judge Ronald Ficarrotta stopped jurors from being told that the law specifically exempts those who have legally prescribed pills.

"If we were to accept the state's assertion that there is no prescription exception to the offense of drug trafficking by possession," Northcutt wrote, "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."

The jury foreman in the trial, upon hearing the ruling of the appeals court, told a reporter he had felt "handcuffed" by the judge's instructions.

"I'm not going to sleep tonight," he said. "That's definitely an injustice."

Ober should feel the same way. The ruling leaves him with essentially no case, and it shouldn't take him 30 days to ask that O'Hara be released from prison.

O'Hara is only the latest victim of Florida's schizophrenic drug laws.

Richard Paey, a Pasco man who suffers debilitating back pain from an auto accident and botched surgery, is also serving 25 years for possessing larger quantities of prescription pain killers. In Paey's case, Gov. Charlie Crist is being asked to consider clemency, which common decency would dictate.

What the Legislature should draw from these cases is that laws written to put away drug kingpins are being used by prosecutors to punish people in pain.

Surely that was not the intent of lawmakers, which is why they need to rewrite the law.

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