Pubdate: Wed, 19 Mar 2008
Source: New Times (San Luis Obispo, CA)
Copyright: 2008 New Times
Contact:  http://www.newtimesslo.com/
Details: http://www.mapinc.org/media/1277
Author: Kai Beech
Bookmark: http://www.mapinc.org/mmj.htm (Marijuana - Medicinal)

ABRAM'S PLEA

After Abram Baxter signed a deal with prosecutors, he thought his 
legal troubles were behind him--then he was told it didn't count

On March 20, after almost a year of legal battles, Abram Baxter is 
due to head back to the San Luis Obispo County Superior Courthouse to 
face a felony marijuana charge.

Yet, as the former doorman for Morro Bay's Central Coast 
Compassionate Caregivers medical marijuana dispensary, Baxter isn't 
any run-of-the-mill defendant.

Baxter allegedly sold 12 ounces of marijuana to an undercover police 
officer on July 12, 2006, but he wasn't arrested until local 
sheriff's deputies and federal agents raided the dispensary on March 
29, 2007, nine months later. The dispensary later closed for good.

As the only person arrested on the day of the raid, Abram 
Baxter--amateur mixed martial arts fighter, musician, and father of a 
toddler--made headlines and served as the very public face of a very 
public clash between state and local laws and between differing views 
about whether medicine can be grown in a garden.

If Baxter isn't any run-of-the-mill suspect, maybe that's why his 
story doesn't follow the high school civics book model of the way the 
criminal justice system is supposed to work.

The charge that Baxter is set to face on March 20 is one that, just a 
few months prior, he was told was over and done with. He'd signed a 
plea agreement with the District Attorney's office and said he walked 
out the courthouse door that day relieved to have everything behind 
him, particularly since he'd exhausted all of his savings on 
attorney's fees to end the matter.

Then he received the notice that the plea bargain he signed along 
with his attorney Greg Jacobson and local judge Ginger Garret was 
being withdrawn, nearly three months after it was offered.

"I couldn't believe it," said Baxter, who at the time was training 
and promoting for Combat USA--a minor-league mixed martial arts 
organization based out of Green Bay, Wisc.

"It knocked me off my feet," he said.

After signing the deal, he said, he felt "very relieved to finally 
move on with my life."

Now he faces a very different prospect.

"Now, I might have to do some jail time," he said. "It would be awful 
to be away from my family and job. All I really care about is my daughter."

'A Mistake'

During a Nov. 13, 2007, pre-preliminary hearing, Baxter accepted a 
plea bargain that reduced his felony marijuana charge to a misdemeanor.

No one disputes those facts. The deal was offered, and he accepted 
it. He signed on the dotted line, as did his attorney, and the entire 
matter was handed over to the judge, who also signed the deal.

Yet the day after the 27-year-old Los Osos resident signed the 
paperwork that would have sentenced him to 30 days informal 
probation, the deputy district attorney handling the case, David 
Pomeroy, filed a written motion to retract the deal. After months of 
delays, the judge agreed with prosecutors and set aside the plea 
agreement last month, on Feb. 19.

"I made a mistake," Pomeroy said in an interview, explaining why 
Baxter was offered the misdemeanor plea bargain. "I realized the 
mistake about one minute after he accepted the plea. I then 
immediately brought it to the court's attention and filed a motion to 
set aside the plea based upon the mistake."

In his telling, Pomeroy tried to get the judge to set aside the plea 
immediately, while Baxter's attorney was still in court, although 
that was after Baxter said he walked out the doors considering his 
legal troubles to be behind him. The judge declined, however, and 
required a written motion.

According to Pomeroy, who has been working in the judicial system for 
the past 30 years, he confused Abram Baxter's case with another one 
involving a 20-year-old named Donald Mark Baxter, Jr. He also said it 
marked the first such mistake of his long career.

Although the two cases were similar on the surface (both were felony 
marijuana charges involving men named Baxter), they were 
substantially different when it came down to it. Abram was being 
charged with allegedly selling marijuana. Donald was allegedly 
involved in a small medical marijuana grow operation.

Pomeroy said that he never would have offered the deal to Abram, 
whose alleged crime he considers more serious than Donald's.

Abram, for his part, doesn't buy the idea that Pomeroy had him 
confused with someone else.

"I've been going to court for a year and there's always television 
stations and reporters waiting for me. It's such a prolific case. How 
did they mix me up with someone else?" Abram asked.

Instead, he believes: "Justice is not being served."

Donald Mark Baxter, Jr., basically declined comment, but did say that 
he was offered the same plea Pomeroy offered Abram. He said he turned 
it down because he feels he didn't do anything illegal.

But for Abram, the case started anew. And that change has come at a 
financial cost.

Abram said he used up his savings to pay his initial attorney, but at 
some time after the plea mix-up, the SLO attorney stopped representing him.

Now Abram is being represented by public defender Matthew Guerrero 
who, coincidentally, is also representing Donald.

The public defender said that Abram did not misrepresent himself to 
get the initial plea.

"I think it's disappointing for [Abram] not to get the best of his 
bargain," Guerrero said. "He relied upon the plea to start another 
life in another state. But medical marijuana is viewed unfavorably by 
the courts."

Abram's initial attorney did not respond to repeated calls and 
requests for comment.

Donald is also scheduled to be in a courtroom for a hearing on his 
case on March 20.

Double Jeopardy?

The Fifth Amendment to the U.S. Constitution puts it like this: "nor 
shall any person be subject for the same offence to be twice put in 
jeopardy of life or limb." More commonly, this particular legal 
protection is known as double jeopardy.

Black's law dictionary puts the protections offered by the concept of 
double jeopardy in simple terms: A person "shall not be twice tried 
for the same crime."

On the face of it, the act of offering a plea agreement to someone, 
then retracting it, may seem like a violation. Pomeroy, however, said 
that the constitutional protection exists only after a person has 
been sentenced.

Local criminal defense attorney Chris Casciola said that's 
technically true, but also noted that in his nearly three decades of 
experience, he's never seen a situation like this one.

"It's an extremely unusual situation in the criminal justice arena," 
he said. "I would suspect [Abram] would have [the] right to appeal the ruling. 
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MAP posted-by: Richard Lake