AFTER 2 YEARS IN PRISON, A MAN IS FREE - MAYBE

Prosecutors May Retry Him For Having 58 Pills

TAMPA - Prosecutor Darrell Dirks couldn't help but be suspicious.

He had offered Mark O'Hara an out on a 25-year prison sentence. All
O'Hara had to do was tell prosecutors the truth about why he had 58
Vicodin pills in his possession.

But O'Hara, a bread business owner from Dunedin, wouldn't cooperate.
Three years in prison didn't sound like a deal, given that a doctor
had prescribed the pills.

He took his chances at trial and lost.

An appellate court overturned the drug trafficking conviction last
month, two years after O'Hara went to prison. The court said the
trial judge should have let O'Hara's lawyer tell jurors that it's
legal to possess Vicodin with a prescription.

Now, O'Hara waits for prosecutors to decide whether they will retry his case.

In their minds, O'Hara's stubbornness sent him to prison.

O'Hara's attorneys say he had no other choice.

Last year, the Hillsborough State Attorney's Office filed drug
trafficking charges against 626 people. Prosecutors say an increasing
number of trafficking cases involve painkillers.

"It's a big problem," said Dirks, who supervises drug prosecutions.
"People are dying from these overdoses at an alarming rate in Florida."

Vicodin, the brand name for the painkiller hydrocodone, is widely
prescribed and abused. Prosecutors say a single pill can sell for $40
on the street. When mixed with other drugs, it makes for a dangerous cocktail.

Part of a prosecutor's job is to distinguish between drug abusers and
drug peddlers. Abusers are more likely to be shown leniency,
especially if they expose their dealers.

Dirks said he still doesn't know which category O'Hara, 45, belongs in.

O'Hara drew the notice of Tampa airport police on Aug. 2, 2004, after
he circled the departure area three times and then abandoned his
bread truck in a no-parking zone.

O'Hara said he had dropped off a friend but didn't know her last
name. Authorities never found her.

They did find partially smoked marijuana cigarettes and unmarked pill
bottles in the truck. One bottle contained 58 hydrocodone pills, a
trafficking amount under state law.

In the 1980s, O'Hara had served time in Florida prisons for
trafficking in cocaine, possessing a hallucinogen and tampering with
a prosecution witness.

This time, police had no evidence that O'Hara sold or delivered any
of the pills. But drug trafficking laws require only possession for an arrest.

Two months before trial, O'Hara's attorney, Christie Pardo, alerted
prosecutors that she would call his two doctors and pharmacist as witnesses.

No one ever took depositions of the medical professionals.

Prosecutors didn't expect, or want, to take O'Hara's case to trial,
Dirks said. If O'Hara truly had pain management issues, a plea
agreement seemed in order.

They offered O'Hara three years in prison if he would explain his
prescription drug problem.

O'Hara turned them down.

Right before trial, Dirks said, he tried again. This time, he offered
to reduce the charge to one count of drug possession and leave
sentencing up to the judge. O'Hara could have received as little as
probation, Dirks said.

Again, O'Hara refused. Dirks grew more skeptical.

"Under the circumstances, I presume there is a reason he doesn't want
to talk to us," Dirks said. "If you're not going to help us, we
cannot help you."

The case went to trial on Aug. 3, 2005.

O'Hara's doctors, Joseph Sena and Mitchell Checkver, testified that
they had treated him since the early 1990s for pain resulting from
gout and injuries he sustained in an auto accident. They had
prescribed him hundreds of Vicodin pills over time.

Checkver said that he prescribed O'Hara 40 hydrocodone in December
2003 and 40 more in May 2004, when O'Hara complained of anxiety and
lower back pain.

The trial took less than six hours. Jurors convicted O'Hara of
trafficking and marijuana possession.

But why was it illegal for O'Hara to have 58 pills if 80 had been
prescribed to him in the eight months before his arrest?

On appeal, the Attorney General's Office argued that Florida has no
"prescription defense" for defendants who have a trafficking amount
of a controlled substance.

The 2nd District Court of Appeal disagreed.

State Attorney Mark Ober said his prosecutors acknowledged that
O'Hara had a valid prescription at one time. His actions became
criminal, Ober and Dirks said, when O'Hara didn't tell one doctor
about the other and sought more pills than he reasonably needed.

O'Hara called Ira Berman from jail. Berman, a veteran trial lawyer
based in St. Petersburg, had represented him on past legal matters,
and now O'Hara wanted him for the appeal.

When O'Hara explained that he had been convicted despite the
prescriptions, Berman thought it wasn't possible.

"He did something stupid, but it's still his own pills," Berman said.

This was serious stuff. In Florida, convictions for trafficking in
certain pain medications carry minimum-mandatory sentences. The
greater the quantity of drugs a person has, the longer the required
prison term.

He knew that O'Hara faced 25 years.

Berman fired off a letter to Dirks and asked to meet before sentencing.

The two attorneys' opinions differ on what happened next.

Dirks, tough but rational, is the go-to guy for defendants seeking a
waiver of the minimum-mandatory sentence. To get one, trafficking
laws require them to provide prosecutors with "substantial assistance."

After O'Hara's conviction, records show that Dirks offered O'Hara
immunity if he sat with authorities and provided information about
where he got the pills and what he used them for.

Dirks said O'Hara backed out, claiming he would waste law
enforcement's time because he had no knowledge of drug traffickers.

Berman said he and his client became uncomfortable with plans for the
meeting because Dirks was trying to make his client snitch.

"You don't have someone do substantial assistance who is not
criminally responsible," Berman said.

On Oct. 5, 2005, Berman argued for a new trial. He said Circuit Judge
Ronald Ficarrotta erred in refusing Pardo's request for jurors to be
instructed that it is legal to possess Vicodin with a prescription.
He predicted the appellate court would overturn the conviction.

He also tried to convince the judge that the case never should have
gone to trial.

Motion denied.

Berman's partner, W. Thomas Wadley, filed an appeal. In it, he
complained that O'Hara had suffered a "monumental injustice" at the
hands of "deceitful" prosecutors and a "somnambulate" trial judge.

During the next year, Berman tried twice more in letters to Ober to
get a reprieve for his client. He called the State Attorney's Office
three times. He didn't get a response, he said.

Dirks said there wasn't any point.

"If you're not willing to sit down with us and give us the scoop,
that's a deal breaker," he said.

The 2nd District Court of Appeal heard oral arguments in August 2006.

Appellate judges took 11 months to overturn the conviction.

By July 25, a week later, prosecutors had retrieved O'Hara from his
Dixie County prison and gotten him released from jail.

Berman calls the state's recent efforts disingenuous. O'Hara, who is
not married and has no children, could not be reached for comment
last week. He is "angry, very angry," his attorney said. He's also
"relieved and thankful."

"My question is: Why now?" Berman asked. "No one cared about him."

Dirks acknowledges that leaving out the jury instruction was a
mistake but says Pardo did not put her request in writing and sprang
it on prosecutors late in the trial. Pardo could not be reached for comment.

A status hearing on the case is set for Wednesday.

Dirks bristles at the suggestion that O'Hara was treated unfairly.

"The door was open before, during and after the trial," he said.
"Mark O'Hara wanted a free pass. We don't give free passes."