Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Balko has the story at the Reason blog:
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."
It gets worse:
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.
This is absolutely stunning. How in the world could a judge - any judge - possibly make such a ruling? If it's legal to prescribe that many pills and he has a prescription for that many pills, by no possible stretch of even the most authoritarian imagination could that not matter in a drug trafficking case. And on top of that, 25 freaking years! Unbelievable.
My brother, who is in constant pain after 12 major operations (8 on his knees, 3 on his back), has a prescription for 90 vicodin sitting in his medicine cabinet right now. Under this tortured reasoning, he's a drug trafficker. The appellate court threw out this verdict, as they should, but apparently the prosecutors are actually thinking about trying him again. Just stunning.
Comments
I'm rather surprised the jury didn't acquit him anyway. Imagine having that on your conscience.
Posted by: Ginger Yellow | July 31, 2007 9:07 AM
The jury didn't know about the prescription - that's what it means to keep it out of evidence.
This is just another example of how prosecutors have basically unchecked power in our system. It disgusts me. The FIRST line of defense against such nonsense SHOULD be a sensible prosecutor. But of course, they all have just about absolute power when it comes to charging people (helped out by the fact that there are enough criminal laws on the books that everyone in the country is probably violating a dozen of them every time they get out of bed in the morning). Utterly ridiculous.
Posted by: Disgusted Beyond Belief | July 31, 2007 9:15 AM
While Rush Limbaugh roams free.....
Posted by: Coragyps | July 31, 2007 9:15 AM
Overzealous prosecution seems to be the norm these days. Two middle school boys in Oregon are being charged as sex offenders for slapping the bottoms of girls in their school. They were wrong, but the charges they are facing are a bit extreme.
Posted by: Brian | July 31, 2007 9:18 AM
The jury wasn't allowed to consider or never heard about the prescription. Mark O'Hara was characterized as a drug dealer--something that justifies the guilty verdict and the long prison time to most people who serve on a jury.
I swear--Radley's stuff on Hit & Run just makes you think that we are already living in a police state that would be the envy of the Soviet Union or Ceausescu's Romania.
Posted by: Shawn Smith | July 31, 2007 9:19 AM
For many people, particularly those living in the crosshairs of the "War on Drugs," including Mr. O'Hara, that wouldn't be an unfair assessment.
Posted by: MAJeff | July 31, 2007 9:40 AM
This is an outrageous miscarriage of justice. Having a disabled older brother with prescriptions living in that area, I wondered, had the police wrongly arrested O'Hara in the first place.
From the original newspaper article (linked on the Reason blog):
"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."
"O'Hara, who went to prison in the 1980s for cocaine trafficking"
So at least it wasn't a wrongful arrest, the guy is obviously not too smart.
Posted by: Paul Hutchinson | July 31, 2007 10:06 AM
Let me preface this by saying I don't know too much about drug law, and how much is at the federal vs. the state level. But as someone who's very opposed to the war on drugs, I would prefer, if possible, to live in a state that's not as bad as Florida.... NARAL Pro-Choice America (and others) provides scorecards on its website of congressmen but also of individual states and their policies on reproductive freedom - is there an organization that provides a similar scorecard of state drug laws?
Posted by: nicole | July 31, 2007 10:20 AM
I can't imagine that this is true, because it if were, then they should be out arresting every last person with a prescription for any drug that would be otherwise illegal. And wouldn't that be all of them? Isn't that, err....what prescriptions are for?
Each time I think I might just be too jaded, something like this comes along and makes me think I'm not jaded enough...
Posted by: Gretchen | July 31, 2007 11:22 AM
How could a judge make this ruling? A one-word answer: Fun.
It's fun judging people, sending them to prison, or setting them free. It's a real power trip. And who dares to criticize you or ridicule you when you have the arbitrary and capricious power to have anyone arrested and imprisoned for pissing you off ('contempt of court' in legalese).
To get an idea of how much fun the reckless exercise of power can be, for what it feels like to be a judge, join in on a few lynch mobs.
Posted by: Curmudgeon | July 31, 2007 11:30 AM
To be caught with a drug that is illegal to own without a prescription, and to be denied the ability to bring up the prescription you have as evidence, is an obvious abuse of justice, as many here have pointed out. It makes me nervous that I'll get strung up for grand theft auto because I can't enter my title as evidence.
Posted by: Glenn | July 31, 2007 11:52 AM
Perhaps the judge was just trying to demonstrate a reductio ad absurdum of the rulings in the Ed Rosenthal case.
Posted by: Coises | July 31, 2007 12:08 PM
The war on drugs is a useless drain of resources that only serves to distract the populace from some of the other crap that's going on, and it's not even doing a good job of that!
Don't we have enough European examples of how decriminalizing drugs doesn't correlate to increased use?
Posted by: twincats | July 31, 2007 12:19 PM
I would say we have an example in the 18th and 21st Amendments that demonstrates decriminalizing drugs doesn't correlate to increased drug abuse. But then again, I haven't actually checked the numbers, and I'm not even sure those numbers exist. Chalk it up to laziness on my part.
As I understand it, NASCAR was born out of the smuggling operations necessary to get around the restrictions the 18th Amendment imposed. I wonder, if a century from now, there will be a sport for seeing how much crap you can put in your body in balloons and get across a barren wasteland in the shortest amount of time?
Posted by: Shawn Smith | July 31, 2007 12:36 PM
So, if it's illegal to possess a certain quantity of prescription drugs, where does that leave the pharmacies and clinics that distribute them?
Posted by: slavdude | July 31, 2007 3:16 PM
Here's the citation for the case: O'Hara v. State
After reading the opinion, I can unerstand how the judge sided with the prosecutors. The 'plain language' of the drug trafficking statute makes it clear that a prescription is no defense.
But that result is prima facie absurd.
The appellate court makes it clear that the trial court should have ignored the plain language of the statute because, to give it its plain meaning is not only facially absurd but leads to several other absurd results.
The "plain language" argument can be very persuasive because it is so easy. The judge doesn't have to think--the judge applies the law like an automaton and goes home at the end of the day. To wade through several complicated statutes, legislative history and briefs takes a lot of time and effort.
But fercrissakes, this defendant was going away for 25 years (!) for a valid prescription--this judge should be impeached or a the very least, censured, for failure to do his job. And what about the defense attorney--I'd ask for my money back if I were Mr. O'Hara.
slavdude--the statute in question makes it clear that it is a-ok for pharmacists to possess controlled substances (uh, duh).
Posted by: David C. Brayton | July 31, 2007 6:28 PM
I have a question for you lawyerly types out there... Was the judge and the prosecution bound by the strict letter of the law to not allow the so-called "prescription defense" in the court case?
If so, then I don't think I would blame the judge for following the law. The law itself is what's terrible, that's for sure... but I don't like the idea of judges using their own personal biases to determine when to enforce the rules whenever they see fit. There's too much room for abuse.
Unfortunately, bad laws sometimes get put on the books and it's a very terrible fact that this took 2 years for the judicial system to catch up with this mistake and finally call it unconstitutional.
But then again... IANAL... so I might be completely off my rocker on this analysis here........
Posted by: doctorgoo | July 31, 2007 6:48 PM
Heck, I would say that if the defendant had no prescription whatsoever. We're talking about Vicodin-- a drug that relieves pain and makes you sleepy (and in my case can make you throw up, but that's for those of us who have problems with codeine). It's bizarre that someone can be sent to prison for possessing large quantities of such a boringly benign substance. Might as well lock people up for possession of Sleepytime tea.
Posted by: Gretchen | July 31, 2007 6:50 PM
And, for another rage-inducing post from Radley Balko, There's this story about how the FBI would rather protect murderers if they're confidential informants in drug cases than let them be prosecuted by state or local courts.
Posted by: Shawn Smith | July 31, 2007 8:59 PM
Doctorgoo--the opinion from the appellate court summarizes the law nicely. I suggest you take a look.
Trial judges (as well as appellate judges) are bound to follow the intent of the legislature. Usually, the 'plain language' of the statute reveals the intent of the legislature. However, if the results of following the 'plain language' are absurd, the court will look to other sources and materials to ascertain the intent of the legislature because, as we all know, the legislature doesn't intend absurd results.
Posted by: David C. Brayton | July 31, 2007 9:13 PM
Some of the legislators who passed this need to pay for this (with their political careers at least, who would vote for these morons?).
When writing law the old phrase "act in haste, repent at leisure" holds frighteningly true.
Posted by: James | August 1, 2007 2:37 AM
Let's not forget to consider this :
Not only did the poor guy spend much too many years in prison... but I bet that, during that time, he wasn't given painkillers and had a really miserable time.
Posted by: Christophe Thill | August 1, 2007 9:01 AM
I was thinking about this as I was talking to my husband about it yesterday. If it had been me, I believe I would've contacted the company that manufactured the medication in question tout suite and apprised them of the situation and how it could impact future sales of their product. As in "Uh, no thanks, doc; I think I can make do with Motrin..." It might have triggered a phone call or two from the pharmaceutical company's legal department...
This could also possibly be a way to make a lobbyist or two work for the consumer for a change.
Posted by: twincats | August 1, 2007 1:53 PM