Local

Medical-marijuana Holder Sues Over His Wrongful Conviction

Medford Mail Tribune | April 4, 2013 1:06 a.m. | Updated: April 4, 2013 8:06 a.m.

Contributed By:

Sanne Specht

By Sanne Specht

Mail Tribune

A medical-marijuana cardholder wrongfully convicted of possession and manufacture of cannabis has filed a multimillion-dollar federal lawsuit against the city of Medford, Mayor Gary Wheeler and the Medford Police Department, including its current and former chief and several officers, claiming civil rights violations and malicious prosecution.

Joshua Brewer is seeking $1 million for alleged violations of his First, Fourth and 14th amendment rights and another $1 million for alleged malicious prosecution in a suit he filed March 28 in Medford’s U.S. District Court.

Brewer also is seeking $50,000 from each named defendant for each alleged violation, said Brewer’s attorney, Foster A. Glass.

The suit alleges that police lied, falsified evidence and denied Brewer his constitutional rights. Though Brewer’s case was overturned on appeal, none of the officers involved were punished, said Glass, a former district attorney for Lane and Grant counties.

“I think (the police) were corrupt,” Glass said. “I think they knowingly misrepresented the evidence. And I think they lied in court. That’s very disturbing.”

The suit named former Medford police Chief Randy Schoen, Chief Tim George, Deputy Chief Tim Doney, Lt. Brett Johnson, Sgt. Ben Lytle and Officer Ian McDonald, along with Wheeler, according to court documents.

Medford City Attorney John Huttl and George cited the pending litigation and had no comment Tuesday when contacted by the Mail Tribune. Calls to Wheeler were not immediately returned.

A Jackson County jury convicted Brewer, then 24, of possession and manufacture of marijuana following a police raid on his home in September 2009. The Oregon Department of Justice granted Brewer’s appeal on Jan. 18, 2012, saying that Jackson County Circuit Judge Ray White erred when he denied Brewer a motion to dismiss his 2010 felony drug convictions for possession and manufacture of cannabis.

Glass said police lied, falsified information and threatened his client in their efforts to get him convicted of felony drug and weapons charges after they discovered that Brewer and his cousin, both medical-marijuana cardholders, were growing at their home on Spring Street in Medford.

“They made a lot of false statements,” Glass said.

Medford officers had entered Brewer’s house a couple of days earlier to arrest someone unrelated to the case against his client, Glass said.

Police then returned two nights later and arrested Brewer on weapons and drug charges, stating they had witnesses alleging Brewer had fired his gun out of his bedroom window.

“Plaintiff awakened to hear his name being called on a bullhorn’ ordering him to exit the house,” Glass said in his filing.

The witnesses who allegedly saw Brewer shooting were never identified and never appeared in court. Brewer’s requests to have his hands checked for gunshot residue were denied, Glass said.

“We depend upon our police officers to be truthful,” Glass said. “It’s a real shame when police betray that trust by concocting false evidence.”

Police also confiscated the marijuana, stating Brewer’s grow site contained more than the amount allowed under the Oregon Medical Marijuana Program, he said.

Glass said police had no probable cause to enter Brewer’s home, and his client had the proper number of plants allowed under Oregon law.

The Oregon Medical Marijuana Program allowed Brewer and his cousin to possess 48 ounces of usable marijuana. During the investigation, officers seized 41.9 ounces, which put the pair 6.1 ounces under the limit.

After his arrest, Brewer contacted Wheeler to complain and to explain, Glass said. But Wheeler never returned Brewer’s calls, he said. Wheeler did, however, contact the police, who then threatened Brewer with arrest if he spoke to another government official regarding his case, Glass said.

“(Lt. Johnson) called him on the phone and (Sgt. Lytle) sent a formal letter threatening him,” Glass said, adding the officers’ acts violated Brewer’s due process right to address government without threats of arrest, retaliation or reprisal, which are protected by the First, Fourth and 14th amendments to the U.S. Constitution.

“We have the right to redress our grievances,” Glass said. “This is so absurd. You don’t threaten to throw people in jail if they talk to you.”

Officers had seized nearly 43 ounces of hanging marijuana that was in the process of drying. This drying marijuana was used in the prosecution’s case against Brewer to prove he was over the legal limit.

Judge White ultimately tossed out the weapons charges against Brewer, stating there was no proof he’d fired the gun, Glass said. But the judge did not allow the jury to hear that Brewer was an OMMP cardholder or evidence about the amount of marijuana he was legally allowed to possess, he added.

The Department of Justice ruled that it was not proven whether this hanging marijuana was usable, as defined by OMMP.

During the trial, Brewer’s attorney attempted to have the case dismissed because there was no proof the hanging marijuana was usable or that it violated OMMP.

White denied the motion for dismissal, prompting Brewer to appeal.

“Without the hanging marijuana, there is no evidence that the defendant possessed more than the lawful amount of usable marijuana,’ ” reads a statement signed by Oregon Attorney General John Kroger and Solicitor General Anna Joyce. “The trial court thus erroneously denied the defendant’s motion of acquittal.”

Brewer’s trial drew the attention of medical cannabis advocates, who protested his conviction and helped raise funds for his appeal.

Brewer, who is married with three young children, spent 17 days in jail before he could make bail. He was given 60 days in jail upon conviction. Brewer and his family have suffered emotional, mental and financial hardship during the three years it took to get the case overturned, Glass said.

Glass said no one in city leadership or the police department has demanded accountability for the alleged officer misconduct.

Brewer said at the time of his acquittal that he would file a civil case.

“The money’s not the most important thing, though,” Brewer said. “I want this to be a precedent-setting case. I don’t want anyone else to go through what I went through.”

Reach reporter Sanne Specht at 541-776-4497 or sspecht@mailtribune.com.

This story originally appeared in Medford Mail Tribune.

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