DA will continue prosecuting Friendly Market drug paraphernalia case
NORMAN — Despite three acquittals and one hung jury, Cleveland County District Attorney Greg Mashburn says he will continue to prosecute remaining charges in The Friendly Market case.
Mashburn also vowed in an interview with The Oklahoman to prosecute to the full extent of the law any glass pipe shops that attempt to open in his jurisdiction.
"Nothing changes," Mashburn said Tuesday. "It is still against the law and I will still proceed to prosecute the other cases."
Mashburn believes state law clearly defines items police seized in two raids on The Friendly Market in 2015 as drug paraphernalia. The items included glass water pipes or bongs, commonly used to smoke marijuana. The defendants have maintained the items can be used to smoke tobacco and a variety of legal herbs.
"If anyone were to open up a shop that the statute does not allow," Mashburn said, "I wouldn't hesitate to prosecute it and we will just go forward."
On Monday after a six-day trial, a Cleveland County jury acquitted store owner Robert Cox and manager Stephen Holman of a felony charge of acquiring proceeds from drug activity and 12 counts of possession of drug paraphernalia. Holman is an elected Norman city councilman.
Juror Melissa Costello said she didn't feel the state proved its case against Cox and Holman beyond a reasonable doubt.
"I'm concerned that the way Norman is enforcing the statute right now that any material can be drug paraphernalia," Costello said.
During about five hours of deliberation on Monday, jurors discussed how drugs can be smoked out of just about anything, including a soda can, Costello said.
"I don't want to go jail because I have an empty Coke can," Costello said. "We just felt like the prosecution never proved beyond a reasonable doubt that those items were meant to be used as drug paraphernalia."
In an email to The Oklahoman, Steven Roberts, who served as jury foreman, described the deliberation process as "intense."
"While we were all able to unanimously state 'not guilty' and turn that verdict in for each of the 13 counts against the defendants, we all reached that conclusion for different reasons and at different times," Roberts said. "I sincerely hope that in that way we were able to give peace and justice to both Mr. Holman and Mr. Cox, as well as to the City of Norman, and at the same time accomplish our duty as was our oath, to be fair and impartial."
Although the store is now closed, The Friendly Market case is far from over.
Cox faces additional criminal charges stemming from a second police raid on the business in December 2015.
"To me, it's really no different than if someone was charged with DUI," Mashburn said. "If they drive drunk again, I will prosecute again. We will continue to enforce the law until it changes."
In February, another jury acquitted Cody Franklin, a former clerk at The Friendly Market, on a misdemeanor charge of possession of drug paraphernalia.
Another former clerk, James Maxwell Walters, faces a second trial on a single misdemeanor charge of possession of drug paraphernalia. His first trial ended in a hung jury in October 2016.
The remaining cases will proceed to trial if that's what the defendants want, Mashburn said.
"If they want a jury trial, we will take them to a jury trial — the ball is in their court," Mashburn said. "That's the whole deal. We've always been amenable to working this out and they haven't been willing to do that."
Defense attorney Blake Lynch, who represents Cox and Walters, said they are not open to taking a plea deal.
Whether there will be additional jury trials, "that's up to the district attorney," Lynch said. "I don't think you can tell them no. Only a judge can do that by dismissing the cases."
Cox would like to eventually reopen The Friendly Market, which is one of the reasons Cox has avoided taking a plea deal, Lynch said.
There's also a civil asset forfeiture case pending against Cox, in which the prosecution is attempting to seize more than $3,000 in cash and inventory.
The state may well still prevail in the forfeiture case, because it's a civil case with a lower burden of proof than a criminal case, Lynch said. The defense has claimed that police and prosecutors have been motivated by money seized in the forfeiture action.
"That's just silly. What is it, $3,000? I run a $6 million budget — it has nothing to do with it," Mashburn said. "They shouldn't keep the money for selling drug paraphernalia."
The American Civil Liberties Union of Oklahoma announced on Tuesday that it has made an Open Records Act request to determine how much public money has been spent on prosecuting The Friendly Market case.
“It is unconscionable that the Cleveland County district attorney would spend a single penny of taxpayer resources on such a monumental waste of time as to prosecute a business owner and manager who never broke any law," ACLU executive director Ryan Kiesel said. "The people of Oklahoma ostensibly elect their district attorneys with the expectation they will prosecute those who pose a legitimate threat to the well-being and safety of their communities. It is clear that some prosecutors simply do not understand this concept."