If anyone was counting, Monday, July 1st in San Diego should stand out as a day when San Diego courts delivered justice. From the yoga case, to the by-now well-known chalk case, to the medical marijuana case, in one day local courts involving two juries and two judges stood up for the rest of us, and for our rights.
Jeff Olson, the Chalk Man, Wins
Certainly, justice was delivered – a little late – in Jeff Olson’s fight against those 13 counts of vandalism for his anti-bank messages. On Monday, a jury found him not guilty on all counts. Jan Goldsmith, our city attorney, and his deputy du jour on Olson’s case, both made public statements that it was all about graffiti.
In a sense, the judge – Howard Shore – agreed. He ruled that the defense could not bring up First Amendment arguments during the trial. And then he gagged everybody. In a misdemeanor case. That’s unheard of. Nobody that was involved could talk to the media. Shore rules that it’s not about free speech and then he declares that there’s no free speech for the parties or witnesses.
The jury felt otherwise and issued a necessary victory for free speech.
Medical Marijuana Mistrial, a Dismissal and a History Lesson in Jury Nullification
On the same day, Monday, in another courtroom – more justice. Over in Judge Charles Rogers courtroom, jurors had come out of deliberations on Thursday hopelessly deadlocked in the trial of legal cannabis patient and defendant Tim O’Shea. Judge Rogers declared a mistrial, but gave prosecutors until Monday to decide whether they were going to attempt to retry him.
After deliberating for nearly 16 hours over a few days and becoming stuck legally, the jury was polled by the judge to confirm the deadlock. Nine had voted not guilty and three guilty.
Deborah La Touche, the prosecutor in this case, on Monday informed the court that after conferring with two department heads, the DA’s office would re-file the case against O’Shea due to the “strong indicia of sales” in the case.
After defense counsel submitted to the Court on a motion to dismiss, Judge Rogers spoke. According to observers, Rogers stated that he felt another trial would of course be burdensome to the defendant. He then analyzed the purposes that a new trial would serve, with one being the resulting punishment – which did not seem appropriate, and with two, the preservation of public safety – and he did not find that applicable either.
The judge publicly concluded that he could not find any valuable purpose for re-trying O’Shea and believed that he had not broken the spirit of the Compassionate Use Act or the Medical Marijuana Program Act. In addition, Rogers reminded the prosecutor that her case was not one of 78oo grams of medical cannabis, but more likely a mere couple hundred grams – the weight without the stalks.
As Terrie Best reported:
Judge Rogers pointed to the fact that three quarters of the jury had voted not guilty, and he himself did not think it was a strong case for sales, therefore he doubted a unanimous guilty verdict would ever be reached against Tim. Judge Rogers granted with prejudice [defense counsel] Mark Bluemel’s motion to dismiss in the interest of justice the people’s case against Tim O’Shea. …
The judge had earlier spoken “at length about the importance of the nine not guilty juror votes, recalling that in his lifetime bi-racial marriage was illegal but change emerged and jurors began to use their verdicts to fight the tyranny of government until the racially motivated law was nullified.” The judge had given the jury a history lesson in jury nullification.
Practicing Yoga – Not Religion
The third case where a San Diego courtroom found justice was in the Encinitas school yoga case. In yet another San Diego Superior Court room – this one belonging to Judge John Meyer – rights were protected.
A couple of parents in the Encinitas elementary school system – Stephen and Jennifer Sedlocks – who had 2 of their kids in the local school, had sued the district after yoga was being taught to their class of young students twice a week, claiming that this teaching was an improper effort at religious indoctrination.
A right-wing legal center, the National Center for Law and Policy, had taken up the claims of the parents, devout Christian, and filed a lawsuit seeking to halt the yoga program as a violation of state law that prohibits the teaching of religion in public schools.
The parties took the case to Judge Meyer and had a court trial – without a jury. Judge Meyer ruled on Monday and rejected the parents claims, which means that the Encinitas Union School District can continue its yoga teaching – which is part of a health and exercise program.
As Tony Perry of the LA Times reported:
Students attend two 30-minute yoga sessions each week. The yoga program has been supported by a $533,000 grant from a local studio that teaches Ashtanga yoga.
The studio is linked to the Jois Foundation, supported by hedge-fund billionaire Paul Tudor Jones II and his wife, Sonia, who were followers of yoga teacher Krishna Pattabhi Jois. Jois, whose devotees included Madonna and Sting, stayed briefly in Encinitas.
Encinitas Supt. Tim Baird has said that the program is worthwhile in teaching healthy exercise and eating habits. He said he hopes that teaching yoga to students will decrease instances of fighting and bullying.
“We are not instructing anyone in religious dogma,” Baird said. “Yoga is very mainstream.”
Yoga supporters noted that it is used at the Naval Medical Center in San Diego to help military personnel wounded in Iraq and Afghanistan recover from injuries and regain self-confidence.
Judge Meyer accepted the school district’s explanation that any references to Hinduism and its liturgical language, Sanskrit had been removed from the program or its exercises. The judge said yoga is “similar to other exercise programs like dodgeball.”
So, on Monday, the first day of July, San Diego courts – well, a few of them at least – established that idea that rights need to be upheld, whether on First Amendment grounds, on the health grounds of legally-mandated medicinal marijuana or on the grounds that right-wing, extremist views which challenge basic common sense do not belong in our schools or our courts.
San Diego is changing.
Latest posts by Frank Gormlie (see all)
- Mayor’s Office Confirms Sale of Liberty Station Leases by McMillin – But Questions Remain - December 5, 2018
- Why Would Anyone Want to Flee Beautiful Honduras? - November 29, 2018
- A Progressive Looks at the San Diego Mid-Terms – OB Rag Interview With Doug Porter - November 21, 2018
Great story Frank but the common man jury saved the day. In the chalk case the cops who spent time writing up the investigation, having it approved by a Sgt and bringing it to the City Attorney must have a low case load. Then a City Attorney issued a case after getting approval from another attorney to get the cops off their back. A strong judge would have disposed of the case but instead a courtroom and jury were tied up for days yet the right result was reached by the jury.
Judge Rogers saved us from a DA abusing her office and Judge Meyers from some right wing nut. It was a good day but don’t expect this to happen very often.
That’s why it was “newsworthy” haha.
Personally, this was my favorite legal week of all 43 years I’ve lived in San Diego.
Sidewalk chalking as protest and grammar school Yoga/PE vindicated! It’s enough to keep one responding to the Jury Summonses still arriving via U.S. Postal Service.
I heard the unvarnished comments of the chalker’s excellent defense attorney Tom Tosdal on KPBS radio and it’s great to see measured analysis from retired prosecutor Dave Stutz here. Then we have lawyer/editor Frank Gormlie who makes reporting in this journal possible. Thanks to you all: you make the world better place.