Thursday, March 25, 2010

Arrests, confusion grow from Michigan's murky law on marijuana

From today's Detroit Free Press:

Police raid highlights problems many face


Michigan's medical marijuana law has patients fearing arrest while police say they're unsure of who can legally possess or supply the drug.

In several instances, police have arrested patients, confiscated their marijuana, conducted searches that turned out to be improper and seized trailer-loads of cultivation gear because of gray areas in the state law that allows medical marijuana, Southfield attorney Michael Komorn said.

The legal problems spawned by the law are so great that defense attorneys have begun specializing in medical marijuana cases, with one top 10 Michigan law firm devoting an area of practice to it.  "Police across the state are either confused or resisting compliance with the medical marijuana law," staff attorney Dan Korobkin of the American Civil Liberties Union said.

Some medical users lack proper paperwork or have more plants than allowed, Roseville Deputy Chief James Berlin said. But mistakes are made, Berlin said.  "We may spend three weeks investigating, and then bust in and traumatize people, only to find out they're legal."

When narcotics investigators burst in last month on Richard Brace in Hazel Park, he didn't have the state card approving him to use medical marijuana that he'd applied for Jan. 9.  Brace, 66, said he was baby-sitting his 7-year-old granddaughter when he heard yelling outside.  "I was getting ready to put her to bed, and all at once, there's a bam-bam-bam, 'Police!' Just as I open the door, they shove that ram through and totally shattered my storm door, all over the living room floor -- even got some glass on my granddaughter," he said.  After being handcuffed and questioned, Brace said he finally talked police out of arresting him by bringing out the paperwork showing he'd applied for his official medical marijuana identification card. As of Wednesday, he still hadn't received it.

Across Michigan, medical marijuana patients like Brace, as well as caregivers -- those allowed to provide marijuana to patients -- are waiting months for the state to issue the registry identification cards that prove they can legally possess the drug.  The backlog in Lansing is so bad, in part because of staff cutbacks, that cards went out last week to people who applied in early December, the Michigan Department of Community Health said.

Without the cards, patients and caregivers risk arrest and confiscation of marijuana by police, who for decades declared all marijuana users to be enemies in the war on drugs.  As of last week, nearly 21,000 Michiganders had applied to be approved medical marijuana patients or caregivers, the Department of Community Health said.  As a temporary card, a copy of the application can "serve as a valid registry identification" if the actual card isn't available after 20 days, the state's Web site says. But dozens of approved patients and caregivers have had their medicine seized by police, attorney Michael Komorn said. Many police departments -- including Roseville's -- don't accept the application paperwork as proof, Komorn said.
"If they don't have a card and they're in possession of marijuana, they're coming to jail," Roseville Deputy Chief James Berlin said. "And if they applied for the card, we'll let the judge decide" if a law was broken.  According to state law, "Any registered patient who possesses a permissible quantity of marijuana -- up to 2.5 ounces -- can't be arrested and can't have their marijuana taken away," with some exceptions, such as smoking while in a public place or on school grounds, said Dan Korobkin, a lawyer with the American Civil Liberties Union.  Still, "I advise my clients, 'Don't tell anybody you're a patient or caregiver. Don't tell anybody you're growing this,' " Korobkin said. "Because the police treat this as if it's all illegal."

In the raid on Brace's house in Hazel Park, "They said they were looking for a dealer. I said you've got to be joking," the retired optical-supply salesman said. He has spinal stenosis, a painful back ailment that he said is eased by marijuana.  Police let him keep the half-ounce of marijuana he revealed in a drawer, but without explanation, they took a small amount from his basement, Brace said. He was left to repair his door and a shattered sense of security.  That raid was "a waste of police time and taxpayers' money," Hazel Park Lt. Michael Kolp said. Afterward, the police involved -- from the Hazel Park force and an Oakland County narcotics team -- "realized it was a medical marijuana case," Kolp said.  "The problem is, we have no way to know that in advance," so police must treat every raid "like it's a drug house" with armed dealers inside, he said.
A glitch in Michigan's medical marijuana statute is that legal experts generally say that it forbids dispensaries -- storefronts that sell marijuana to patients, Wayne State University law professor Robert Sedler said.  Sedler, an expert on constitutional law, returned last week from suburban Los Angeles, where "all we saw were dispensaries, practically on every corner," he said.  In Michigan, "People have to grow it themselves, so there always will be an issue: Are they growing this for medical use" or to sell on the street? he said.

Obviously, a lot of questions are yet to be answered.  I wonder what liability the Roseville Police Department may incur, instituting a policy of arresting everyone and letting a judge sort it out later, perhaps after 72 hours in jail.  Any thoughts?

Monday, March 15, 2010

Federal Sentencing after Booker on SCOTUS Blog

An interesting post today on the SCOTUSBlog form David Stras:

Ryan W. Scott (Indiana University Maurer School of Law) has posted an article on SSRN entitled “Inter-Judge Sentencing Disparity After Booker: A First Look,” see here. The piece is forthcoming in the Stanford Law Review. Professor Scott uses a unique dataset from the United States District Court for the District of Massachusetts to examine how judges have handled their new sentencing freedom as a result of cases such as Booker, Kimbrough, and Gall. Using a natural experiment method, the study finds that the “judge effect” at sentencing has more than doubled since that trio of cases was decided by the Supreme Court. Though the article examines only the data from a single district, the empirical findings are consistent with anecdotal evidence around the nation regarding inter-judge sentencing disparities as a result of the Supreme Court’s recent sentencing jurisprudence. Of particular note, the study finds that some “business as usual” judges continue to sentence below the guideline range at essentially the same rate as before Booker, while other judges now sentence below the guideline range at triple or quadruple their pre-Booker levels. This is a very interesting article and well worth a read for those who are interested in the Court’s recent Sixth Amendment jurisprudence.

Friday, March 12, 2010

COA to Cox: "You're fired!"

Last week, the Michigan Court of Appeals published its opinion in the Attorney General's case against former Wayne County Circuit Judge Mary Waterstone, and in doing so, fired the entire Attorney General's Office and discharged them from any further responsibility for the prosecution.

In the People v Mary Waterstone, presented to the Court by Paul Smith and Gerald Evelyn, the Attorney General had agreed to investigate and prosecute, if warranted, allegations that Judge Waterstone, Karen Plants and two Inkster police officers had either testified falsely or knowingly allowed perjured testimony to be presented to the jury in 2005 in the cases of the People v Alexander Aceval and Ricardo Pena.  After the Wayne County Prosecutor recused herself because of a conflict of interest, four other counties also refused the assignment.

However, it turns out, the AG had a difficult conflict of interest himself.  Following his conviction, Aceval filed a Federal Sec. 1983 civil rights case against Plants, the two officers, 13 other defendants and Judge Waterstone, claiming that the judge and the others violated his due process rights by knowingly allowing the admittedly perjured testimony to go unchallenged.  The Supreme Court, as is routine, directed the AG to represent Judge Waterstone in defending the allegations.  Steve Cabadas of the Public Employment Elections and Torts division of the office, spoke to Judge Waterstone on three separate occasions and filed an answer to the complaint, denying all the allegations.  Aceval's lawsuit was subsequently dismissed for failing to provide the court with a valid address.

After accepting the assignment to investigate and prosecute the case, the AG assigned Assitant AG's Bill Rollstin and John Dakmak to the case.  First, an investigator went to Judge Waterstone's home, had afternoon coffee with her and interviewed her, implying that the investigation was targeting APA Plants and the others, never telling her that she was a target of the investigation.  Next, the AAG's issued the judge an investigative subpoena and she appeared at the Detroit office, waived her right to counsel and answered their questions surrounding Aceval's trial. 

Because of the conflict of interest in prosecuting a former client of the AG's office under MRPC 1.7, 1.9 and 1.10, Judge Waterstone moved the 36th District Court to disqualify the Attorney General and dismiss the complaint prior to any testimony being taken.  The District Court denied the motion, Judge Kenny affirmed and the Court of Appeals denied the application for leave to appeal.  The Michigan Supreme Court, however, remanded the matter to the COA as on leave granted on the conflict of interest issue only. 

AG Cabadas, in an attempt to persuade the court that no confidential communications from Judge Waterstone were ever divulged to either Rollstin or Dakmak because she never confided anything to him, submitted an affidavit to that effect.  The Court, however, held that Cabadas' affidavit was "disingenuous" in light of Judge Waterstone's contrary affidavit and the answer he filed to Aceval's complaint.

MRPC 1.9 dictates that an attorney may not represent a new client whose interests are adverse to an old client in the same or substantially related matter, unless the client waives the conflict and consents.  MRPC 1.10 states, in addition, that no lawyer in a firm can represent a client in violation of MRPC 1.9.  Here, the Court inferred that confidential information was communicated from Cabadas to Rollstin and Dakmak, especially in light of the unusual circumstances of a judge being prosecuted.  "The Attorney General has an affirmative duty to perform a conflict check before undertaking the prosecution of a judge or other person whom the office is statutorily required to defend."

A criminal defendant bears the burden of establishing that she has been prejudiced by the dual representation and, here, the Court found that she was.  The AG's investigator's tactics in getting a statement from Judge Waterstone were, according to the Court, disturbing.  He sat down for coffee with her in her home, surreptitiously recorded the conversation, never told her that she was the subject of the investigation and implied that she was not when she asked.  The Court held, regardless of what agency would ultimately prosecute the case, the statement could not be used.

Ultimately, the Court found that the Michigan Attorney General was conflicted out and order the entire office to withdraw from the prosecution.  It will be interesting to see how this matter plays out, given that the AG is not conflicted when it comes to Plants and the two officers.  Does the prosecution continue with the AG prosecuting three of the defendants and a separate prosecutor representing the People only as to one?  What county will now take this matter when four have already declined?  We will keep you posted as to any new developments in this interesting case.