Judge Say What ?

[trichcycler]

 

U.P. prosecutor’s ‘diatribe’ about marijuana ruins case

 

 

Associated Press 1:21 p.m. EST November 23, 2014

 

 

MUNISING, Mich. – A prosecutor’s inflammatory remarks about medical marijuana have cost her a conviction in the Upper Peninsula.

 

The Michigan appeals court says Paul Heminger apparently was growing more marijuana than allowed under law, but the verdict last year was spoiled by the closing argument of the Alger County prosecutor.

 

The court says Karen Bahrman embarked on a “personal diatribe” to discredit the medical marijuana law. She told jurors that a local pro-marijuana group wants a “country where everybody can walk around stoned.”

 

In a 3-0 decision Friday, the appeals court cited many other comments and said the prosecutor’s argument was “thoroughly improper.”

 

Bahrman didn’t return a message seeking comment. Heminger was sentenced to six months in jail.

[cristinew]

DETROIT (AP) — The evidence seemed solid in a marijuana case, but a "personal diatribe" against Michigan's medical marijuana law by an Upper Peninsula prosecutor spoiled the conviction, the state appeals court said.

In a 3-0 decision, the court granted a new trial to Paul Heminger, who was convicted of growing nearly two dozen pot plants in Alger County.

During her closing argument, Alger County prosecutor Karen Bahrman criticized the medical marijuana law and attacked the credibility of a local group, the Alger Hemp Coalition, which she said has a "vision for the country where everybody can walk around stoned."

"They do nothing to support the government services they want, and have nothing but criticism for the government services they don't want," Bahrman told the jury. "We're trespassers and tramplers of their rights right up until they need us to protect them from the violence that they attract to the community."

Heminger had a medical marijuana card, but there was evidence that he was growing an excessive amount, possibly to sell or use, the appeals court said.

Nonetheless, his right to a fair trial last year was violated by the prosecutor's "unfounded, irrelevant and inflammatory statements," the court said in an opinion released Friday.

"The prosecutor's closing argument was clearly and thoroughly improper," the court said. "The prosecutor embarks on a political commentary, and a personal diatribe discrediting the (law) as a whole. ... She calls the act 'meaningless,' and suggests that those suffering from chronic pain are simply cheating the system."

Bahrman defended her remarks when reached for comment Sunday. She said she was surprised by the decision and might ask the Michigan Supreme Court to look at the case.

"It's the first time I've been reversed in 30 years," Bahrman said.

Heminger was sentenced to six months in jail.

[cristinew]

"They do nothing to support the government services they want, and have nothing but criticism for the government   Ahhhhh 

[t-pain]

hah i'd like to see this clown take it to the supreme court.

 

i'd actually rather have the door swing both ways. let the prosecutor have his little prohibition meltdown and let the defendant have his jury nullification and MMMA speech to the jury.

 

free speech for all. anything else is a travesty.

[cristinew]

http://publicdocs.courts.mi.gov:81/opinions/final/coa/20141120_c316959_35_316959.opn.pdf 

[knucklehead bob]

http://publicdocs.courts.mi.gov:81/opinions/final/coa/20141120_c316959_35_316959.opn.pdf 

 

 

Server Error

404 - File or directory not found. The resource you are looking for might have been removed, had its name changed, or is temporarily unavailable.

[cristinew]

http://publicdocs.courts.mi.gov:81/opinions/final/coa/20141120_c316959_35_316959.opn.pdf   dont know why the link does not work,,

 

RT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

 Plaintiff-Appellee,

UNPUBLISHED

November 20, 2014

v No. 316959

Alger Circuit Court

PAUL RICHARD HEMINGER, LC No. 2011-001973-FH

 Defendant-Appellant.

Before: OWENS, P.J., and MARKEY and SERVITTO, JJ.

PER CURIAM.

Defendant appeals as of right his conviction following a jury trial of

manufacturing/delivery of marijuana, second offense, MCL 333.7401(2)(d)(ii). He was

sentenced to six months in jail and 12 months of probation, with the first 25 days in jail to be

served within 90 days’ of the date of sentencing and the balance held to the end of defendant’s

probationary period unless otherwise ordered by the court. We reverse and remand.

 Defendant admittedly grew 22 marijuana plants on his property in the Upper Peninsula.

Prior to trial, defendant moved for dismissal of the charge pursuant to Section 8 of the Medical

Marihuana Act (MMA), MCL 333.26421 et seq. The lower court denied defendant’s motion to

dismiss, finding that factual questions regarding the defense should be left to the jury.

We first consider defendant’s assertion that the court erred in not instructing the jury on

the Section 8 defense. The court appears not to have given the jury verbal instructions on the

defense. However, the prosecutor asserts that the jury was provided written instructions

concerning the affirmative defense. These written instructions are not in the record, but a close

reading of the trial transcript shows that the jury was indeed given written instructions on the

Section 8 defense. A good portion of the closing arguments of both parties focused on the

Section 8 defense. And, in arguing that the defense does not apply, the prosecutor stated the

following: “And the issue for you is whether the defendant has established this affirmative

defense by a preponderance of the evidence . . . . So we need to turn to what you’ve been given.

I assume you’ve studied it. We first of all question whether the defendant has established the

first element.” The prosecutor then references specific paragraphs and subparagraphs (“That’s

third paragraph, subparagraph A.”; “it’s in your second paragraph”; “and that takes us back to

third paragraph listed B underneath”; “Note that in order to obtain a card, and it’s up in your

second paragraph there . . . .”). These statements make clear that the jury was given written 

 

instructions addressing the Section 8 defense. Accordingly, defendant’s argument is without

merit. And, having failed to establish error in the jury instructions, counsel cannot be faulted for

failing to challenge them. People v Fike, 228 Mich App 178, 182; 577 NW2d 903 (1998).

 Defendant also argues that his conviction cannot stand because the evidence clearly

established the Section 8 defense. “An affirmative defense is one that admits the doing of the act

charged, but seeks to justify, excuse or mitigate it.” People v Mette, 243 Mich App 318, 328-29;

621 NW2d 713 (2000). “[it] does not negate selected elements or facts of the crime.” Id. Thus,

“[t]he prosecution is not shouldered with the burden of proving the failure of an affirmative

defense.” Id. at 330. Here, it is undisputed that the prosecution established the elements of the

charged offense.

 To successfully raise a Section 8 defense, a defendant must establish the following by a

preponderance of the evidence:

 (1) A physician has stated that, in the physician’s professional opinion,

after having completed a full assessment of the patient’s medical history and

current medical condition made in the course of a bona fide physician-patient

relationship, the patient is likely to receive therapeutic or palliative benefit from

the medical use of marihuana to treat or alleviate the patient’s serious or

debilitating medical condition or symptoms of the patient’s serious or debilitating

medical condition;

 (2) The patient and the patient’s primary caregiver, if any, were

collectively in possession of a quantity of marihuana that was not more than was

reasonably necessary to ensure the uninterrupted availability of marihuana for the

purpose of treating or alleviating the patient’s serious or debilitating medical

condition or symptoms of the patient’s serious or debilitating medical condition;

and

 (3) The patient and the patient’s primary caregiver, if any, were engaged

in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or

transportation of marihuana or paraphernalia relating to the use of marihuana to

treat or alleviate the patient’s serious or debilitating medical condition or

symptoms of the patient’s serious or debilitating medical condition. [MCL

333.26428(a)].

 Here, defendant clearly established the first element of the defense. An orthopedic

surgeon provided uncontroverted evidence that he had a long-existing doctor-patient relationship

with defendant, that x-rays confirmed that defendant had stage-four degenerative arthritis in his

shoulders, and that in 2009 the doctor indicated that defendant’s treating the pain caused by his

arthritis by using marijuana was appropriate. As to the second and third elements, however, a

reasonable jury could have concluded that defendant was in possession of an amount of

marijuana in excess of that needed to treat his pain.

 Defendant responded in the affirmative when asked if would describe himself as

experiencing “chronic pain.” Defendant testified that the hydrocodone he was prescribed “helps 

 

my lumbar and my shoulder somewhat, but it doesn’t help my neck.” He stated that he was

growing the marijuana “[t]o help with my pain so I could be functional.” He explained that

“ut like right now it doesn’t matter what I take; it doesn’t manage it.” When asked “how

often would you need to use marijuana for pain relief?” he responded, “in the morning a joint for

to get going, and probably four, five joints a day.” He explained he would need “[a]t least a half

ounce” per week for pain relief. This means he would need roughly 104 ounces, or 6.5 pounds,

of marijuana per harvest to achieve an uninterrupted supply throughout the year. However,

because there was testimony that 22 marijuana plants (the number found on defendant’s

property) typically yield around 12 pounds of useable marijuana, the evidence reasonably shows

that defendant was in possession of more marijuana than was required for pain management.

While defendant and another witness both testified that defendant’s outdoor growing conditions

were suboptimal and unlikely to produce an average yield, we leave issues of conflicting

testimony and witness credibility to the jury. People v Lemmon, 456 Mich 625, 642-643; 576

NW2d 129 (1998). Given the possible yield, the jury could have reasonably concluded that

defendant was in possession of the marijuana to either use and sell, or just to sell.

Defendant also challenges his trial counsel’s effectiveness with respect to a comment

made by a juror during voir dire. To preserve a claim of ineffective assistance of counsel, a

defendant should move for a new trial or an evidentiary hearing in the lower court. People v

Sabin, 242 Mich App 656, 658; 620 NW2d 19 (2000). Because defendant failed to move for an

evidentiary hearing or a new trial, the issue is not preserved for appeal. An unpreserved claim of

ineffective assistance of counsel is reviewed for errors apparent on the record. People v

Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004).

This state has long recognized the importance of a criminal defendant’s right to

representation at trial. People v Pickens, 446 Mich 298, 311; 521 NW2d 797 (1994). The right

to effective assistance of counsel is grounded in the United States and Michigan Constitutions.1

 

US Const, Am VI; Const 1963, art 1, § 20. However, courts generally presume that counsel has

afforded effective assistance, and it is the defendant who must overcome this burden. People v

Davis, 250 Mich App 357, 368-369; 649 NW2d 94 (2002). To establish an ineffective assistance

of counsel claim, the defendant “must show that (1) counsel’s performance was below an

objective standard of reasonableness under prevailing professional norms[,] . . . (2) there is a

reasonable probability that, but for counsel’s error, the result of the proceedings would have been

different,” and (3) the result was fundamentally unfair or unreliable. People v Lockett, 295 Mich

App 165, 187; 814 NW2d 295 (2012).

 Counsel generally has a duty to advocate the defendant’s cause and “bring to bear such

skill and knowledge as will render the trial a reliable adversarial testing process.” Strickland v

Washington, 466 US 668, 688; 104 S Ct 2052; 80 L Ed 2d 674 (1984). But “this Court will not

substitute its judgment for that of counsel regarding matters of trial strategy.” Davis, 250 Mich 

 

 

 The “intention underlying the Michigan Constitution does not afford greater protection than

federal precedent with regard to a defendant’s right to counsel when it involves a claim of

ineffective assistance of counsel.” Pickens, 446 Mich at 302. 

App at 368. Nor will it assess counsel’s competence with the benefit of hindsight. Matuszak,

263 Mich App at 58. Moreover, “[a] particular strategy does not constitute ineffective assistance

of counsel simply because it does not work.” Id. at 61.

 During voir dire, the prosecution asked juror 13 whether he was acquainted with any

witnesses or parties in the case. The following exchanged occurred in response:

A. I – I know Paul [defendant]. That’s –

Q. Okay. How do you know him?

A. I logged for – on his property for him a few years ago.

Q. Okay. How would you describe your relationship with him? Friend?

Acquaintance?

A. Acquaintance.

Q. Okay. Had you heard about this case? Or was it a surprise to learn he

was the defendant when you walked in here?

A. A surprise.

Q. Okay. Did you have any knowledge that he used medical marijuana or

– or grew it on his property?

A. When I logged for him, that’s why I was logging because he was – he

was in jail for the same – the same crime. And I was logging to help him keep his

bills paid and whatnot while he was in jail.

Q. Okay, but did he have a – a grow operation on his property at the time?

A. No.

Q. Okay. Have you kept in touch with him since? Did you know

anything about his circumstances since?

A. No, I didn’t. [Emphasis added.]

 Defendant was not denied the effective assistance of counsel because defense counsel did

not object to the highlighted comment. First, because the juror’s statement was somewhat

unprompted, it is not certain that a defense objection would have gained anything more than a

curative instruction. Even if the lower court gave a particularized curative instruction, it would

have likely drawn more attention to the issue. Therefore, by not objecting, defense counsel

minimized the error as much as possible.

 Second, the jury was instructed that defendant was presumed innocent and that its verdict

should be based on the evidence, which the court instructed “includes only the testimony of the

witnesses that you’ve heard over the last two days and anything else that I might tell you to 

 

consider as evidence,” including admitted trial exhibits. “It is well established that jurors are

presumed to follow their instructions.” People v Graves, 458 Mich 476, 486; 581 NW2d 229

(1998).

 Because defense counsel followed a reasonable trial strategy in electing not to call further

attention to the juror’s unsolicited comment, his performance did not fall below an objective

standard of reasonableness. Therefore, defendant was not denied the effective assistance of

counsel.

 Defendant lastly contends that the prosecutor committed misconduct, thus denying him

his right of due process. To preserve a claim of prosecutorial misconduct, “a defendant must

have timely and specifically objected below, unless objection could not have cured the error.”

People v Brown, 294 Mich App 377, 382; 811 NW2d 531 (2011). Defendant’s failure to object

in this instance means that our review is limited to identifying plain error affecting his substantial

rights. People v Aldrich, 246 Mich App 101, 110; 631 NW2d 67 (2001).

Generally, the prosecution may utilize emotional language and is not limited to bland

argument when presenting its case to the jury. People v Ullah, 216 Mich App 669, 678-679; 550

NW2d 568 (1996). But, counsel must limit itself to “relevant and material matters,” and must

argue only those facts in evidence. Id.; People v McCain, 84 Mich App 210, 215; 269 NW2d

528 (1978). Similarly, the prosecution cannot invoke the jury’s sense of civic duty by unfairly

placing “issues into the trial that are more comprehensive than [the] defendant’s guilt or

innocence.” People v Abraham, 256 Mich App 265, 273; 662 NW2d 836 (2003).

Defendant objects to several comments made by the prosecution during closing

arguments. We consider the comments in context.

First, the prosecution attacked the credibility of the Medical Marijuana Act itself stating:

 Now, because it – it’s got to be obvious to you how we – we meaning law

enforcement – feel about the Medical Marijuana Act, I want to start by saying that

we don’t object to the idea of giving desperately ill people an escape from their

suffering, not at all. We object to the – the act as drafted. And it – it really

epitomizes the problem with legislation being drafted by a special interest group,

as opposed to duly elected legislatures, as much as we all love to hate them.

 Clearly, [the MMA] is being abused principally by a lot of recreational

users and a few physicians just exploiting that catch-all condition of – of chronic

pain. And, you know, whether it’s appellate courts or the legislature, a few

bandaids have been applied, such as the relatively new definition of what a bona

fide physician/patient relationship is. And that has hopefully stopped the signing

of these certificates en masse at seminars like the one attended by Mr. Heminger

at the Landmark Inn. What really needs to happen is for the ultimate certification

decision to either be taken out of the hands of private physicians, or for there to be

a legal source of marijuana. And that – that just seems like it has insurmountable

obstacles

 

And that’s the most important point I can make here. You know, he – he

wants you to believe this is all tied to yield. It’s really tied – the math all depends

on his own estimate of how much he needs. And to allow users to – to do that

renders this entire act much more meaningless than it is to start with.

The prosecution also attacked the credibility of the Alger Hemp Coalition, the organization to

which a defense witness belonged:

 We’ll also say that the – the attitude of, say, the Alger Hemp Coalition is

just a – a study in mixed messages. You know, they do nothing to support the

government services they want, and have nothing but criticism for the government

services they don’t want. We’re trespassers and tramplers of their rights right up

until they need us to protect them from the violence that they attract to the

community. And their hostility towards anyone who disagrees with their vision

for the country where everybody can walk around stoned is also kind of

remarkable.

 But all that said, you are unfortunately not here to judge the Medical

Marijuana Act or the Alger Hemp Coalition. You are just here to judge this

particular defendant on these particular facts. And in deed [sic] all of us – all any

of us can do is just handle one case at a time until something changes.

Here, the prosecutor’s closing argument was clearly and thoroughly improper. The

prosecutor embarks on a political commentary, and a personal diatribe discrediting the MMA as

a whole, claiming (without supporting evidence) that its protections are being abused by

recreational users and exploitative physicians. She calls the act “meaningless,” and suggests that

those suffering from chronic pain are simply cheating the system. She also denigrates the

general population of lawful medical marijuana users, claiming that they attract violence to the

community and advocate that everyone be allowed to “walk around stoned.” Finally, she states

that it is unfortunate that the jury cannot judge the MMA, explaining that they can only consider

defendant’s case “until something changes.” By making these unfounded, irrelevant and

inflammatory statements, the prosecutor essentially argues that defendant’s affirmative defense

is nothing more than a drain on the community, and that even if he is innocent under the MMA

he is simply exploiting the system. As a result, the prosecutor encouraged the jury to convict

defendant despite the protections of the Section 8 defense. This affected defendant’s substantial

rights.

 Under the plain error rule, “[r]eversal is warranted only when plain error resulted in the

conviction of an actually innocent defendant or seriously affected the fairness, integrity, or

public reputation of judicial proceedings.” People v Callon, 256 Mich App 312, 329; 662 NW2d

501 (2003). Although defendant cannot establish his actual innocence, the fairness of the trial is

called into doubt by the prosecutor arguing that a statutory affirmative defense should not be

relied upon because the policy underlying it is, according to the prosecutor, highly questionable,

if not outright meaningless. Given the prosecutor’s role in the system, People v Jones, 468 Mich

345, 354; 662 NW2d 376 (2003) (“A prosecutor has the responsibility of a minister of justice,

not simply that of an advocate.”), such misconduct calls into doubt the integrity of the process. 

 

We reverse and remand for a new trial. We do not retain jurisdiction.

/s/ Donald S. Owens

/s/ Jane E. Markey

/s/ Deborah A. Servitto 

 

Edited November 25, 2014 by cristinew

[trichcycler]

so, we can be prosecuted for an amount of marijuana that could possibly be produced by the twigs in the garden if all was perfect and going well at time of future harvest? like a thought crime.

a tray full of clones could have produced a hundred pounds......? I must be mistaken?

[cristinew]

I know   guessing on plant weights,???  what could be ,,,roughly,,, that is crazy,This means he would need roughly 104 ounces, or 6.5 pounds,

of marijuana per harvest to achieve an uninterrupted supply throughout the year. However,

because there was testimony that 22 marijuana plants (the number found on defendant’s

property) typically yield around 12 pounds of useable marijuana, the evidence reasonably shows

that defendant was in possession of more marijuana

[t-pain]

so his claim that his lawyer was ineffective was true. his lawyer didnt challenge the 22 plants = 12 pounds theory.

[Norby]

Can't you destroy some? What happens if you get mold?

Edited November 25, 2014 by Norby

[t-pain]

This means he would need roughly 104 ounces, or 6.5 pounds,

of marijuana per harvest to achieve an uninterrupted supply throughout the year. However,

because there was testimony that 22 marijuana plants (the number found on defendant’s

property) typically yield around 12 pounds of useable marijuana, the evidence reasonably shows

that defendant was in possession of more marijuana than was required for pain management.

 

i'm glad that his condition will be gone in a year.

or that section 8 of the MMMA , instead of containing this paragraph

 

 

(2) The patient and the patient's primary caregiver, if any, were collectively in possession of a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition; and

 

the court of appeals just read it like this:

 

 

(2) The patient and the patient's primary caregiver, if any, were collectively in possession of a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition IN ONE YEAR ONLY; and

 

can you tell where the court of appeals went wrong?

 

oh man this opinion is just so baloney...

 

 

While defendant and another witness both testified that defendant’s outdoor growing conditions

were suboptimal and unlikely to produce an average yield, we leave issues of conflicting

testimony and witness credibility to the jury. People v Lemmon, 456 Mich 625, 642-643; 576

NW2d 129 (1998). Given the possible yield, the jury could have reasonably concluded that

defendant was in possession of the marijuana to either use and sell, or just to sell.

 

the Mich supreme court has ruled that questions of FACT go to a jury.

the prosecutor making up a "possible yield" is not a fact.

there is no fact that says a plant makes a pound of usable marihuana.

Edited November 25, 2014 by t-pain

[t-pain]

to put it another way, you could have one plant , a seedling, 8 inches tall.

 

this prosecutor would say 'the plant could produce 1 pound' thus you being over your weight and over your sec4 and sec8 limit.

the Court of Appeals must be stopped. this is outrageous

[bobandtorey]

 

DETROIT (AP) — The evidence seemed solid in a marijuana case, but a "personal diatribe" against Michigan's medical marijuana law by an Upper Peninsula prosecutor spoiled the conviction, the state appeals court said.

In a 3-0 decision, the court granted a new trial to Paul Heminger, who was convicted of growing nearly two dozen pot plants in Alger County.

During her closing argument, Alger County prosecutor Karen Bahrman criticized the medical marijuana law and attacked the credibility of a local group, the Alger Hemp Coalition, which she said has a "vision for the country where everybody can walk around stoned."

"They do nothing to support the government services they want, and have nothing but criticism for the government services they don't want," Bahrman told the jury. "We're trespassers and tramplers of their rights right up until they need us to protect them from the violence that they attract to the community."

Heminger had a medical marijuana card, but there was evidence that he was growing an excessive amount, possibly to sell or use, the appeals court said.

Nonetheless, his right to a fair trial last year was violated by the prosecutor's "unfounded, irrelevant and inflammatory statements," the court said in an opinion released Friday.

"The prosecutor's closing argument was clearly and thoroughly improper," the court said. "The prosecutor embarks on a political commentary, and a personal diatribe discrediting the (law) as a whole. ... She calls the act 'meaningless,' and suggests that those suffering from chronic pain are simply cheating the system."

Bahrman defended her remarks when reached for comment Sunday. She said she was surprised by the decision and might ask the Michigan Supreme Court to look at the case.

"It's the first time I've been reversed in 30 years," Bahrman said.

Heminger was sentenced to six months in jail.

 

his right to a fair trial last year was violated by the prosecutor's  ? along with sooooo many others

[bobandtorey]

to put it another way, you could have one plant , a seedling, 8 inches tall.

 

this prosecutor would say 'the plant could produce 1 pound' thus you being over your weight and over your sec4 and sec8 limit.

the Court of Appeals must be stopped. this is outrageous

Thanks

 

the C.O.A in our case said IF our plants where to continue to grow we would have pounds 

 

I guess they know how things grow  NOT

[trichcycler]

what? you had cuttings of the famed GiantBudz genetics you say? those can produce 20 pounds each....Off with their heads!!!

 

kill it before it grows.......BM

[t-pain]

link for the opinion:

http://lawprofessors.typepad.com/files/state-v-heminger.pdf

[Norby]

How the hell can they say it's more than needed?  If you have any lying around, it's more than what you need momentarily.  If you have plants that produce 2oz. each that would never add up to more than what was needed.  There are things that can make it that you not harvest some of those plants.  Hermaphroditism, mold, there's tons of reasons it wouldn't all turn out.  They are making a joke of the law!!!

[trichcycler]

I'm going to begin photo documenting harvested plants and their final weights. I've never been interested in plants producing more than a couple few ounces each, since 2008.

[Restorium2]

It needs to be said that a lot of the plant could be seen as possibly usable but may not be to a particular patient. Some patients want just the tops and toss the rest as not needed/usable for their particular medical use. So usable final harvest amounts vary greatly. Some would say they can get a pound off one plant when I only see an ounce (or less) that I can really use.  So there's really no universal measuring stick to be had. It's always going to depend on patient preference. 

[Wild Bill]

You know those sh*theels are going to count every scrap they can dig out of the garbage can as usable, and then say they found it hidden there.

Edited November 28, 2014 by Wild Bill