Criminal Justice Forum

Time to drop weak drug case
By A TIMES EDITORIAL
Published September 17, 2007


A status hearing is scheduled for Tuesday in the case against Mark O’Hara, whose drug trafficking conviction in Hillsborough County was thrown out after an appeals court faulted the jury instruction as unfair. O’Hara maintained he had a prescription for the 58 Vicodin pills authorities found in 2004 in his van at Tampa International Airport. Hillsborough prosecutors say his story is suspicious and that the threat from trafficking and prescription drug abuse warrant a retrial. But this case is weak, and barring new evidence, the state
should drop it. It only symbolizes why Florida’s trafficking laws need to be changed.

Airport police said O’Hara caught their attention Aug. 2, 2004, after circling the drop-off area several times before parking in an unauthorized zone and entering the terminal. Officers found him, searched his van and found the 58 Vicodin, a brand name for the painkiller hydrocodone, and a misdemeanor amount of marijuana. He was charged with felony drug trafficking, convicted in a one-day trial in 2005 and sentenced to a 25-year mandatory prison term. But the 2nd District Court of Appeal overturned the conviction in July, ruling that the Hillsborough trial judge erred by not instructing the jury "that it was not illegal to possess hydrocodone if it had been prescribed."

The reversal brings the case back to square one, which is where it belongs, for there were many problems long before the judge gave a prejudicial jury instruction. O’Hara not only had a prescription; he had two, for 40 Vicodin apiece, from the same doctor in the eight-month period preceding his arrest. The state never established the 58 pills could not have been left over from his authorized 80. His physician testified he prescribed the Vicodin both times to treat O’Hara’s back pain. He challenged the state’s contention, which seems to underlie its case, that only one prescription could be valid at the time.

The state worked hard to cast a cloud over O’Hara’s behavior at the airport and suggested he kept his physicians in the dark to churn more Vicodin. Yet airport police acknowledged O’Hara cooperated. He volunteered the drugs were Vicodin and maintained he had a prescription. Neither the testimony, nor the time line, suggests he doctor-shopped (a reason, perhaps, he was not charged with the crime). One doctor said he never asked O’Hara if he was seeing another physician. Of the two physicians who testified, one last prescribed Vicodin for O’Hara in 2002, 14 months before the other doctor wrote the first of the two prescriptions in question. So much for overlap.

Prosecutors have signaled they will retry the case. They are suspicious of O’Hara, who served time in the 1980s for cocaine trafficking, and put off because he has not cooperated with them. State Attorney Mark
Ober is right that prescription drug abuse is a growing problem. The Associated Press reported last month that retail sales of five leading painkillers nearly doubled over an eight-year period ending in 2005, and a global watchdog group reported in March that abuse of prescription drugs was set to outstrip that of street narcotics.

O’Hara’s story has holes, but he has no obligation to cooperate. This case has gotten this far because the trafficking laws in Florida do a poor job of distinguishing patients from abusers and dealers, and because prosecutors over-reached and chose the wrong case to make a statement about their commitment to fighting drugs. It is a numbers game blind to the reality of legitimate pain management.

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