People V Provost

[Eric L. VanDussen]

The following three posts contain; (a) the September 13 order denying Terry Provost's affirmative defense dismissal motion; (b) his attorney's motion to dismiss, and; © the prosecutor's response.

 

Circuit Judge Janet Allen ruled that Provost wasn't entitled to assert the affirmative defense because at the time of his arrest he didn't possess registration cards for himself or any other "qualified patients." A day later, the Court of Appeals released their Redden/Clark opinion, which held "that the district court did not err by permitting defendants to raise the affirmative defense even though neither satisfied the registry-identification-card requirement of § 4."

 

I'd assume Provost's attorney will be filing a motion for reconsideration shortly. Judge Allen made several similar rulings from the bench and in chambers during Archie Kiel's case See: ( http://www.upnorthmedia.org/watchupnorthtv.asp?SDBFid=2246#vid )T

 

 

 

[Eric L. VanDussen]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Eric L. VanDussen]

 

 

 

 

[+RevThad]

This is an interesting one. Thanks for sharing. Unfortunately, I would tend to agree at least with the premise of this judges ruling, that there were no qualifying patients at the time of the arrest, at least according to the documents included. That being said I would think that the attorney could argue that the named patients were diagnosed with their debilitating conditions prior to the arrests, and the date of recommendations for medical marijuana is moot.

[DLD420]

I may be wrong (often am) but seems to me the search itself where the 70 plants were found was not legal. If his paperwork was recognized as it should have been the excess plants would not have been found.

[Hempcheff]

I may be wrong (often am) but seems to me the search itself where the 70 plants were found was not legal. If his paperwork was recognized as it should have been the excess plants would not have been found.

 

and the presumption is that it is for medical use, until they produce evidence to the contrary, unless i misunderstood the law...

[+RevThad]

and the presumption is that it is for medical use, until they produce evidence to the contrary, unless i misunderstood the law...

That is where it gets tricky, remember that neither the caregiver or the patients in this case has registration cards, or doctors recommendations at the time of the arrest. Also all parts of Sec 8(a) must be satisfied for the AD to be asserted. Those are Doctor, quantity, and medical use...

[+Annnie]

Thanks for the post Eric.. It really grinds me everytime i read these and they use us the people as the ones bringing the charges on them.. Personally take my name off the list of ppl bringing charges onto terry.. And Archie and them all..

[bobandtorey]

Archie does any one know what going on with his case? i know that Eric was their and has a lot of knowledge

[peanutbutter]

Thank you Eric!

 

This is the first case, that I'm aware of, that the concept of the "unregistered caregiver" is being used.

 

Now the next problem.

 

If these are public court records, then the court did violate Michigan law.

 

Those responsible for this violation are supposed to go to jail.

 

section 6 (h) (1) Applications and supporting information submitted by qualifying patients, including information regarding their primary caregivers and physicians, are confidential.

 

(h) (4) A person, including an employee or official of the department or another state agency or local unit of government, who discloses confidential information in violation of this act is guilty of a misdemeanor, punishable by imprisonment for not more than 6 months, or a fine of not more than $1, 000.00, or both.

 

Did these court records disclose information about doctors and caregivers? Sure enough.

[westmich]

Thank you for posting this. I wish the defendant the best of luck.

 

I hope people read this and it re-enforces, as it does in me, the need to have some sort of documentation in place if you don't yet have your card. If you are going to grow for someone else, at the very least get a copy of the recommendation and a signed letter from them saying you are growing on their behalf.

[tasty]

Ok, I think this puts a target on the other patients because their names and dates and doctors are named. I'm not sure that shoulld have been posted?

[MrNorml]

It is my understanding that card registrants are entered into the LIEN system. First, that seems to violate the language above on confidentiality.

I think someone should look at whether that would also be a violation of HIPPA as well.

As for this whole "affirmative defense" thing, it is not just a thing. It doesn't seem that the law is very complicated. I am amazed that people elect judges who review and affirm such clearly erroneous interpretations of the law. It isn't rocket science - it is reading a sentence and understanding what it says. But that's why I'm not a Court of Appeals judge I reckon...

[+Silverblue]

I think I saw a thread saying Archie's case was denied, I'm sure I remember seeing it say they wouldn't let him use the AD. I hope I am wrong.

 

Sb

[lawyercaregiver]

I just spent a couple minutes on the pleadings but as I understand it he didn't have sufficient evidence that the patients he was growing for were HIS patients listing HIM as their caregiver under the MMM.

 

No ticky no playee- unless the playing you are planning on doing is in jail.

 

I wish him the best of luck but it sounds like he fracked up.

[bobandtorey]

I just spent a couple minutes on the pleadings but as I understand it he didn't have sufficient evidence that the patients he was growing for were HIS patients listing HIM as their caregiver under the MMM.

 

No ticky no playee- unless the playing you are planning on doing is in jail.

 

I wish him the best of luck but it sounds like he fracked up.

 

 

i think he had 3 cards and 2 paper works

[GanjaWarrior]

it amazes me that there could be a judge so dense as to think you needed a card to claim (ad) its my understanding (ad) was with out a card. why would anyone need to claim ad if they had their card and the leo followed the law?

[+RevThad]

i think he had 3 cards and 2 paper works

Not according to what was shown in court... the seizure took place on May 20th 2009, 3 of his patients didn't receive doctor's recommendations until Nov 10 2009 or later...

 

The one cool finding in this is that they are recognizing the 20 day rule, "The Court, therefore, concludes that since more than 20 days had elapsed before application was made for the card prior to the search, Defendant was legally entitled to grow and cultivate 12 plants for himself."

[+420Atheist]

I may be wrong (often am) but seems to me the search itself where the 70 plants were found was not legal. If his paperwork was recognized as it should have been the excess plants would not have been found.

 

He consented to the search and signed a paper saying so. People saying "NO you can not violate my 4th amendment rights and do not have my permission to search" is a perfectly acceptable thing to say. I'm guessing if they could have gotten a warrant they would have.

[Hempcheff]

once the statement is made by a patient or caregiver that the plants they are cultivating is for medical marihuana use, isnt LEO supposed to stop action and verify that the cultivation claim is true, regardless of the evidence they have produced whether rightfully so or not (unsigned warrant, etc..) before continuing. perhaps we should be issued a LEO-stop sign from the state that is bigger and more clear in addition to the cards we currently have

 

or am i mistaken?

[peanutbutter]

I just spent a couple minutes on the pleadings but as I understand it he didn't have sufficient evidence that the patients he was growing for were HIS patients listing HIM as their caregiver under the MMM.

 

No ticky no playee- unless the playing you are planning on doing is in jail.

 

I wish him the best of luck but it sounds like he fracked up.

 

The voters vested the power to determine if a doctor is qualified to issue his/her letter of recommendation to the MDCH.

 

It is in the normal course of business that they do so for every card issued.

 

The judge is correct about our law protecting our doctors. But he failed to understand the confidentiality section of the law. Once the patient files his paperwork with the MDCH additional protections apply for doctors and caregivers also.

 

It is the action of the patient that provides greater protections for these people. Their very identities are illegal to disclose at that point.

 

Once a regulatory agency certifies a fact, it is no longer an issue of fact.

 

At that point, the identity of the doctor is no longer needed in a court case. In fact it may be a criminal act.

[GregS]

It is my understanding that card registrants are entered into the LIEN system. First, that seems to violate the language above on confidentiality.

I think someone should look at whether that would also be a violation of HIPPA as well.

As for this whole "affirmative defense" thing, it is not just a thing. It doesn't seem that the law is very complicated. I am amazed that people elect judges who review and affirm such clearly erroneous interpretations of the law. It isn't rocket science - it is reading a sentence and understanding what it says. But that's why I'm not a Court of Appeals judge I reckon...

 

 

I read recently that local departments must be trained via some kind of classroom instruction to use the LEIN system and that each of those departments sign on to use it. Some have. Some have not.

 

It is notable that all of the cases but one that are cited by the prosecution are district court rulings, which have no real standing as precedent, although they can be used to advise an issue.

 

Judges frequently decide issues of laws wrongly. For instance, the Americans with Disabilities act was signed by Geo. H.W. Bush in 1990. The courts consistently ruled too narrowly regarding the rights of the injured, (e.g.) Toyota v Williams and Sutton v United Air Lines, Inc. In 1988 the federal legislature, with support from every corner, to include injured worker groups and the Chambers of Commerce (it does not get much stranger than that), unanimously amended the act to ensure that the language that was written into the law be properly used to offer a fair chance at justice for injured or diseased plaintiffs by requiring the courts to more broadly consider what makes someone diabled, and eliminating the ability of these judges and wealthy defendants to interject confusion and wrong headed arguments, and language was added to the Equal Employment Opportunity Commission texts regarding enforcement of the law spelling it out more clearly for them. Many people tried to use the act to keep their jobs, but were denied. Judges ruled out arguments prior to trial and gave jury instructions that cornered those juries where they had to decide in favor of the defendant employers, who had refused reasonable accommodation to disabled individuals. Even Supreme Court Justices Scalia, Thomas, and some of the other right wing players did their part in twisting the law.

 

That is how the game is played. For eight years there were judges with ideological agendas who perverted the law, which was pretty plainly written. Those idiot judges are out there and everywhere, to include here. The issues might be different, but the moves are the same.

 

It looks like this case will have to be appealed. Higher courts are typically populated with more intelligent judges who respect the law, but there are still enough fools to be found there. More of them have intentionalist attitudes toward the law, and rule more consistently within the purpose, and less than with the closely defined text, of the law. The intention of the law can be argued to the jury and can be effective.

 

Where the law is concerned, District Courts are pre-k sandboxes for Judges. Inasmuch as they have cocky attitudes and behave like playground bullies, they are bush league but don't seem to get it. Even if they are found to have judged wrongly there is little to no real form of punishment, except possibly in the most extreme cases.

[Hibbyhibby]

Um...I think I may be in a unique position to comment on this, as I used to be the Assistant Prosecuting Attorney for Kalkaska County, practice in front of Judge Allen professionally and am a social acquaintance of hers as well. She is extremely liberal on social issues when she's away from the bench. However, she is also a very good Judge who does what she's supposed to...apply the law as written.

[+EdwardGlen]

Thank you Eric!

 

This is the first case, that I'm aware of, that the concept of the "unregistered caregiver" is being used.

 

Now the next problem.

 

If these are public court records, then the court did violate Michigan law.

 

Those responsible for this violation are supposed to go to jail.

 

 

 

Did these court records disclose information about doctors and caregivers? Sure enough.

Is the presiding Judge responsible for the content of a ruling as in, does he proof read them before they're made public.

 

If yes then he is in violation of the law and complaints can be made to The Michigan Judicial Tenure Commission. All complaints must be in writing no emails or faxes are accepted to start a complaint process.

 

JUDICIAL TENURE COMMISSION

3034 WEST GRAND BOULEVARD

SUITE 8-450

DETROIT, MI 48202

[+Jennifer8]

Ok, I think this puts a target on the other patients because their names and dates and doctors are named. I'm not sure that shoulld have been posted?

It is my OPINION that the court did that intentionally to further intimidate future, perspective, or current people associated with obtaining, growing, or using medical marijuana. On the other hand, it's a part of the facts, but why could such records not be considered private medical records? In that respect, since this whole issue has not been completed, why not at least treat future potentially victimized innocent until proven guilty people, specifically medical patients and their doctors, the same as if it was actually medical records?

 

First, how do courts handle documenting pleadings, known to be public record, with medical patient specifics on it assuming establishing a legitimate patient/doctor is not the issue itself? Couldn't certain court pleadings be redacted for public records where innocent until proven guilty people and potentially their reputations, jobs, where they live, etc., are damaged, since named people are not the actual issue or defendant(s)?

 

Secondly, would this, and others as well as future court documents of this nature, be able to be some kind of sealed public record document to protect confidential patient/doctor information?

 

With all of the divorces, are people that file for divorce, and all of their kids placing their personal date of birth, addresses, possessions, and social security numbers on public records? Are divorce documents public record, considering identity theft issues or potential lunatic predators?

 

Thirdly, why didn't the court "X" out even so much as the last names of the innocent doctors and patients, until proven otherwise, if nothing else? If any harm comes to people as a result of incidental information made public, why would the court NOT be held responsible for such? Courts can be sued.

 

Would someone who knows be willing to share those particulars? If so, your time and effort is very much appreciated.

 

Why bother having HIPPA when courts don't even respect that information? What's the point?