Destroying Lives: LB Criminal Justice System

Part One of this column introduced 72-year-old medical marijuana (MMJ) activist David Zink, a 49 year Long Beach resident/homeowner who has fought for safe access for medical marijuana (MMJ) patients and war-damaged veterans since the passage of the Compassionate Use Act in 1996. We recounted his arrest and prosecution 14 years ago at the hands of Long Beach narcotic officers that ended with an outright dismissal in the interest of justice.

Part Two exposed the tainted – and feasibly retaliatory search warrant – served 14 years later by Long Beach narcotic officers who contrived evidence against Zink to bring charges for manufacturing cannabis oil by means of an extraction process known as butane honey oil (BHO) – and confiscated the $12,000 he had saved for home repairs and dental work.

And we reported the gross discrepancies and contradictions in the LBPD’s handling of the seized money along with the sudden appearance months later of counterfeit bills mixed into his savings during a subsequent – unexplained – LBPD audit of the seized currency. Both the LBPD and the Citizen Police Complaint Commission (CPCC) were asked – via email – to explain and/or clarify the money discrepancies.

Anitra Dempsey, the CPCC executive director, has since responded stating, “While I am familiar with Mr. Zink’s case, commenting on the specific facts revealed in the CPCC’s investigation and/or the CPCC’s findings may divulge confidential information protected by law. I can say that the commission thoroughly reviewed his allegations and, after discussion, appropriately rendered findings for those allegations.”

We received no response from the LBPD.

Zink was not arrested the day the search warrant was served and his personal property seized. He was told that the LBPD case would be presented to the district attorney and that he would be informed of a decision in a few days.

Six months later – following futile attempts to learn anything or get his money back – and faced with the cancellation of his home owner’s policy because of needed roof repairs – Zink petitioned the court to return his money.

The lead narcotic officer, Randall Beach and Deputy City Attorney Kendra L. Carney opposed the return of his money by proffering unsupported allegations that Zink operated “an illegal butane honey oil manufacturing lab and marijuana cultivation facility” and that after six months, “the office of the district attorney, and the Long Beach City Prosecutors Office have not had sufficient time to complete their investigation or review of the case.”

Judge L. Laesecke – the same judge that signed the search warrant – denied Zink’s request without comment.

On May 26, 2015 – 11 days later – a grand jury was convened at the request of Long Beach Deputy District Attorneys Amy Wilton and William Vance Davis. The highly dangerous and felonious manufacture of cannabis-based BHO would be the lynchpin of their deceitfully calculated performance before 25 citizen jurors in order to secure an indictment of Zink.

Testimony of Detective Kirk

DDA Wilton began her recital before the citizen grand jurors with LBPD narcotic Detective Jason Kirk on the stand and – as with all of those who would later testify – she established his so-called “expert” qualifications – by repeatedly eliciting from him the terms: butane honey oil and BHO.

With his “expertise” established, Kirk told the jurors that he recovered several mason jars from Zink’s home containing, “Dark viscous matter” and Wilton – pointing to photos of the mason jars containing the dark viscous matter – asked, “And what do you recognized them to be?” Kirk answered: “Those are the three jars of honey butane oil that I recovered from the east wall.”

Testimony of Detective Long

DDA Wilton then put Detective Timothy Long on the stand and – after prompting his boilerplate of expert “BHO” qualifications – Long testified to finding four metal and two glass tubes stored in the garage along with a carton of small butane canisters. DDA Wilton then steered Long to offer his “expert” conclusion that these items could be used to create a BHO laboratory.

There was no discussion about the fact that the metal tubes were in fact table legs, no questions asked as to what other purpose the glass tubes could be put to or if there was any use for small butane canisters – like fuel for a portable camping stove – other than manufacturing honey oil.

Detective Long was also never asked to render his expert opinion about the “dark viscous matter” in the mason jars.

Testimony of Detective Beach

Next up was Detective Randall Beach, the lead narcotic detective who attested to the polluted search warrant served on Zink six months earlier – and who also appeared in court 11 days earlier to oppose the return of Zink’s money.

Wilton directed Beach’s attention to a picture of a large metal pot and two rubber tubes found in the kitchen.

Beach testified that it was, “a form of THC extraction, the pressure extraction unit” with “… a vacuum pump line hooked up to the top …” Wilton asked, “Had you ever seen anything like that before in your training and experience?” Beach replied, “That was the first.”

DDA Wilton never asked if the “form of extraction” was oil extraction by butane or if the pot could have been used to produce a legal tincture – or perhaps – to can and preserve peaches. She also never asked Beach if he agreed with Detective Kirk’s expert opinion that the “Dark viscous matter” in the mason jars was butane honey oil. All of that was left to the jury’s manipulated imagination.

Testimony of Detective Greene

After taking Detective Brian Green though the litany of his BHO experience, Wilton then channeled him through what became 14 pages of transcribed questions and answers related to the packaging and booking of the so-called evidence taken from Zink’s home.

Wilton did not ask Green a single question related to identifying BHO, BHO extraction equipment or the “dark viscous matter” in the mason jars – but she did make certain that the jurors heard the terms “BHO” and “butane honey oil” multiple times during his testimony.

Testimony of Detective Thue

When Detective Thue finished describing his vast BHO experience – he too was never asked to identify any BHO manufacturing equipment or the “dark viscous matter” in the mason jars.

Thue’s testimony was directed exclusively toward Zink’s alleged confession about manufacturing BHO, which was biopsied in Part Two of this column through an examination of the officers’ reports – as well as this writers professional expectation of a recorded confession – which did not occur.

After reading the officers’ grand jury testimony Zink countered the same response as when he read their reports, stating: “The THC Oil they say I admitted to manufacturing with butane is in fact Simpson Oil (which is legal to possess) – a liquid – and I didn’t make that either. So, why would I confess to it being BHO? If they are the honey oil experts they make themselves out to be they should have known it wasn’t BHO just by looking at its color and texture. Honey oil is not dark green. It’s a golden-honey color sometimes called wax and it not a liquid form, it’s solid”

But, the “expert” testimony the grand jury was getting came only from the narcotic officers – rather than hearing from Zink himself – or more importantly – a scientist who could provide the best evidence: Scientific testing.

It was clear that laboratory testing for BHO did not fit into DDA Wilton’s indictment goal – in spite of the fact that her next witness was a LBPD criminalist.

Testimony of Gregory Gossage – LBPD Criminalist

Gregory Gossage took the stand and outlined his extensive education and expertise for the grand jurors as a forensic scientist for the LBPD. DDA Wilton then took Gossage through a line of questioning that exposed the jurors to the numerous methods that can be used to extract cannabis oil from plant material – and then with greater emphasis – primed them with a sharp focus on the manufacture of Butane Honey Oil.

She then elicited his opinion that honey oil could be manufactured using glass or metal tubes and launched the forensic scientist into regaling the jurors with a detailed primer on how to make honey oil. DDA Wilton concluded her examination of Gossage by asking: “This process you described, can that be dangerous?”

Gossage then provided abundant detail about how the butane extraction process can result in serious explosions – but in that testimony Gossage also said that, “butane primarily recovers just the THC, and your result is a butane liquid that’s colored like a honey amber color that predominantly contains THC.”

Wilton sidestepped further discussion about the color of BHO and showed Gossage photos of the cooking pot, the rubber tubing and a thermometer and then launched a speculative question and answer discussion about what could be cooked in the pot – including cannabis butter.

She then focused his testimony on a speck of dark residue found on the tip of a cooking thermometer. Gossage confirmed that gas chromatography spectrometry proved that the speck of residue contained THC. Wilton didn’t ask if the THC residue was produced by the butane method – but instead directed the scientist’s attention to the mason jars where he again testified that his tests established the jars contained “viscous oil that tested positive for THC.” And, once again, Wilton did not ask Gossage – the real expert – how the dark viscous matter in the jars was produced.

Later laboratory tests on the pot and the rubber tubing found in the kitchen and the glass tubing and the metal table legs found in the garage were negative for THC residue.

Testimony of Sheriff’s Deputy Scott Schulze

Apparently DDA Wilton felt the need to bring in an outside expert on Clandestine HBO laboratories to hammer the final nail into Zink’s clandestine BHO coffin for the jury so Sheriff Deputy Scott Schulze – an “expert’ on clandestine BHO laboratories – was recruited for the job.

Schultze’s testimony repeated the dangers of BHO manufacturing and how materials found on Zink’s property “could be used” to create what he described as, “a small BHO laboratory.” When Wilton showed Schulze photos of the dark viscous matter in the mason jars and asked if it was BHO, Schultze answered, “I wouldn’t say it’s the desired color and consistency but, yes, I have seen it this way.” She didn’t ask him if the oils he had “seen this way” had ever been tested in a laboratory.

But, one of the jurors did ask: Is BHO obtainable with a prescription? Schultz responded that doctors can, “only give a recommendation … but it is legal to possess it, it’s not legal to manufacture it.”

The Incitement

“Public safety! That’s what this case is really about is public safety!” Proclaimed Wilton’s colleague, DDA William Vance Davis, as he began the prosecution’s closing statement before the 25 grand jurors which he followed with a summary of all that DDA Wilton had selectively elicited from her witnesses.

DDA Davis ended his fevered closing statement by describing what he called the “coup de grace,” stating that the “finished product, those jars with a whole multitude of that substance that Detective (sic) Gossage talked about. Don’t get lost in whether or not target Zink had a (medical marijuana) card, whether or not he had a valid doctor’s recommendation, whether it was expired or not. None of that matters. What matters here is the public safety that Target Zink was manufacturing a controlled substance here, its concentrated cannabis. There is no excuse for it. There is no defense to it, and we ask that you return an indictment on count 1 as to target David Zink.

The Indictment

On May 27, 2015, following two days of testimony, the 25 grand jury members had heard testimony from four LBPD narcotic officers, two  LBPD criminalists and one sheriff’s deputy – without the illuminating – and penetrating – interference of a defense attorney’s cross examination.

The terms “butane honey oil” and “BHO” had been hammered into their heads a total of 80 times – and not once was scientific laboratory evidence presented to establish that the (legal-to-possess) cannabis based THC oil (Zink’s medicine) seized from Zink’s home was manufactured using the highly dangerous – and illegal – butane (BHO) extraction process.

The jurors deliberated less than one-hour and David Zink was indicted for manufacturing concentrated cannabis – BHO. DDA Davis then respectfully requested the presiding judge to issue a warrant and set bail in the amount of $75,000 for a man who had lived in Long Beach for the past 49 years – had one arrest (reported in Part One) that was thrown out of court – and owned his own home.

Unable to mortgage his home because of the repairs needed and the court’s refusal to return his savings for defense purposes, Zink borrowed $6,000 from friends and relatives to post a one-year bail bond contract.

Teetering at the edge of bankruptcy and homelessness Zink then endured the system shuffle of three different public defenders and 12 court appearances over the next 12 months in order to fight against the tyranny of the Long Beach criminal justice system.

It was at this point in time that Zink’s aged sister was able to loan him enough to engage the services of a highly accomplished Long Beach defense attorney, Matthew E. Kaestner.

Seven more months and eight court appearances would pass before Kaestner’s razor-sharp legal skills would finally expose the corrupted case brought against Zink – the horrific details of which will follow in this column’s next installment: Part Four – Destroying Lives: The Long Beach Criminal Justice System.

Stephen Downing is a Long Beach resident and retired LAPD deputy chief of police.

stephen@beachcomber.news