Oakland County’S Prosecuting Team Takes It On The Chin

[bobandtorey]

LANSING- At the outset of the session of the Michigan Supreme Court held on Thursday, January 15, Justice Robert P. Young commented that the team of prosecutors from Oakland County seemed to be “frequent flyers” in the courtroom when issues of medical marijuana law were being decided.

It was not a compliment.

 

During Thursday’s session arguments were heard by the Justices in three different cases of licensed and registered medical marijuana patients and caregivers being charged with crimes. All three cases featured Oakland County prosecutors and their novel interpretations of the Michigan Medical Marihuana Act (MMA)- including one case where a common, everyday Post-It Note is considered marijuana paraphernalia.

 

Oakland County is notorious as the state’s strictest territory in regards to prosecution of medical marijuana providers and patients. The Carruthers case, in which a single Court of Appeals ruling changed the legal classification of most medicated foodstuffs and concentrated forms of marijuana, originated in Oakland County. The Redden/Clark case, regarding a small amount of growing plants, was an Oakland County prosecution which was dragged out for four years; the charges were eventually reduced to a misdemeanor offense.

 

Thursday’s proceedings featured something no attorney wants to hear: Justices of the Supreme Court laughing at the arguments made in their Court. It happened twice to Appellee lawyers representing Oakland County during the session.

 

The first two cases heard on the 15th were People v Hartwickand People v Tuttle. These cases are similar in that they advance similar notions of responsibility on the part of one for the acts of another. In Hartwick, the COA placed burdens on the physician to treat a recommendation for medical marijuana as if it was a prescription for an opoid pharmaceutical product. Those burdens include establishing dosage requirements and appearance in court for the purpose of testifying as to the bona fide nature of the relationship between health care provider and patient.

 

Although several of the Justices posed difficult questions for the Appellee counsel from Oakland County, none was more blunt than Justice Young. Justice Young has presided over several controversial cases of medical marijuana law during his tenure in the MSC and has a reputation for tough interrogation of attorneys representing both sides of the argument. He drew the comparison between a doctor’s recommendation for aspirin and the recommendation required to allow a patient to consume cannabis.

 

“This is not a prescription standard,” he told the Court during testimony. He properly pointed out that “doctors are not trained on dosage,” and added later that doctors could not legally prescribe marijuana or they “risk their license to practice medicine.”

 

On the subject of compelling physicians to testify regarding the nature of the bona fide doctor-patient relationship, Young and other Justices challenged the prosecutors to defend their contention that a patient could be denied their legal protections if they are not meeting an ill-defined schedule of follow-up visits. In Hartwick the contention by Appellant defense counsel is that the medical marijuana card issued by the state offers some evidence that the relationship meets this standard. Oakland County seemed to fail to develop the argument to the Justices’ satisfaction.

 

In the Tuttle case there are similar issues of validity regarding the state-issued medical marijuana card. Debate in the Court frequently touched on the proofs a card offers the Court and to officers at the roadside, as well as issues regarding the caregiver’s responsibilities are to ensure the patient they are providing for maintains that bona fide relationship.

 

The facts of the case include a caregiver transferring cannabis to an undercover officer who pretended to be a medical marijuana patient, and that the caregiver’s entire growing operation was then determined by Oakland County to be illegal- even though the transfer happened in a location distant from the garden. The caregiver Tuttle legally grew marijuana for his patients to whom he was connected through the registry identification process. Instead of charging Tuttle for the illegal transfer of marijuana the Oakland County prosecuting team pursued the case to the extreme, determining that any and all activity related to marijuana was then tainted, including the legal garden.

 

The issue of physician involvement arose during this case’s hearing as well. The defense attorney contends that the MMA establishes two different criteria for recommendations- a standard for children that is very strict and a lesser standard for adults. In light of the lesser standard a medical marijuana card establishes several facts- including the bona fide doctor-patient relationship and that any marijuana possessed by the patient or caregiver is assumed to be for the alleviation of the illnesses suffered by themselves or the patients they serve. Those are two of the prongs necessary for the establishment of a section 8 affirmative defense; attorneys arguing that the card establishes those two facts are often met with a differing interpretation by judges in lower courts.

 

In the third case heard by the MSC on the 15th, People v Mazur, Oakland County presents an argument that a wife’s participation in the management of the organizational aspects of maintaining a marijuana garden makes her just as guilty of a crime as the husband who created and physically interacted with the plants. To be exact: Oakland County charged Mrs. Mazur with a felony because she created Post-It Notes containing information about the usable date for drying marijuana.

 

The notion seemed to be equally disturbing and amusing to the Justices, several of whom brought their own yellow pads of sticky paper to seemingly use as ‘props’ during their examination of Oakland County’s testimony. Defense attorney David Rudoi established talking points with the Justices regarding the nature of a device created for normal purpose that was uniquely used to aid in the production of marijuana. Justice Young made comparisons to a watering hose, and if that could be considered paraphernalia. Justice Mary Beth Kelly asked if Oakland County was engaging in an “overzealous prosecution” and others challenged the notion that scribbling down words dictated by another constituted the wife’s material contribution to the success of the medical marijuana garden.

 

http://thecompassionchronicles.com/2015/01/18/supremely-embarrassing/

Defense attorneys were encouraged by the nature of the questioning that took place in the Supreme Court. Later that evening during the broadcast of the Planet Green Trees Radio Show appellant attorney Rudoi, this author, industry leader Jamie Lowell and attorneys Michael Komorn and Jeff Frazier relived the highlights and engaged in frank discussions regarding the effectiveness of argument and the need for clarification from the Supremes.

A decision in these cases is expected within three to six months, and the rulings may come as three individual announcements instead of one.

[t-pain]

tuttle transferred to another carded patient, who was working as a confidential informant to the police. not a police officer.

[bobandtorey]

Thanks i sent him a message telling him 

[AmishRnot4ganja]

Wow. Looks like Oakland County might get slapped here? One can only hope.

 

If they do get slapped, I hope that any cease and desist order that they receive comes with some teeth.

 

Can the Supreme court make them stop doing frivolous prosecutions?

Edited January 19, 2015 by amish4ganja

[bobandtorey]

If and when i get one of those letters i will cease and desist for sure but no mail today

[GregS]

I fully expect that the prosecutors and courts in these cases are about to get a stern talking to. Again.

 

Thompson's piece is a pretty good summation of the events. I think, to this point, the SC has been even handed in its considerations. I remember one of the Justices alluding to unregistered patient and caregiver protection. The ruling should clarify and vociferously support our clearly spelled out options found in both registered and unregistered provisions. There will be some serious commentary speaking to evidence, and pointedly toward the silly prosecution arguments that insist that factual evidence should be the providence of the courts, and rather ensuring that juries remain the finders of fact, leaving findings of law to judges, as has already been clearly ruled by the Court. Cases that go to juries are a prosecutor's worst nightmare. They do not want these cases to go to juries. Period.

 

Cards are prima facie proof of a bona fide relationship, and not only under sec. 4, much like drivers' licenses, which are issued to grant driving privileges, but which also are accepted as prima facie proof of identity always and everywhere, precisely because identity must be established to get one. I still believe it in any caregivers' best interest to obtain clearly stated consent from any patient that they have been specifically appointed as caregiver to said patient in any and all transactions, to include those that are unregistered , along with proof of the bona fide physican/patient relationship. Having that agreement and proof memorialized in print can only help. CIs and undercover officers are a real problem that this would go a long way to fix.

 

Regarding possession amounts permitted under sec.8, like I've said before, our smoke and mirrors are better than theirs, and our smoke is much, much better.

 

I really think the Court will firmly insist on evidentiary standards that will fuk up these prosecutors' whole day. All in all anti mj court and police officers will be reined in. I thought I was wrong once, but I was mistaken.

Edited January 19, 2015 by GregS

[YesMichigan]

I fully expect that the prosecutors and courts in these cases are about to get a stern talking to. Again.

 

Thompson's piece is a pretty good summation of the events. I think, to this point, the SC has been even handed in its considerations. I remember one of the Justices alluding to unregistered patient and caregiver protection. The ruling should clarify and vociferously support our clearly spelled out options found in both registered and unregistered provisions. There will be some serious commentary speaking to evidence, and pointedly toward the silly prosecution arguments that insist that factual evidence should be the providence of the courts, and rather ensuring that juries remain the finders of fact, leaving findings of law to judges, as has already been clearly ruled by the Court. Cases that go to juries are a prosecutor's worst nightmare. They do not want these cases to go to juries. Period.

 

Cards are prima facie proof of a bona fide relationship, and not only under sec. 4, much like drivers' licenses, which are issued to grant driving privileges, but which also are accepted as prima facie proof of identity always and everywhere, precisely because identity must be established to get one. I still believe it in any caregivers' best interest to obtain clearly stated consent from any patient that they have been specifically appointed as caregiver to said patient in any and all transactions, to include those that are unregistered , along with proof of the bona fide physican/patient relationship. Having that agreement and proof memorialized in print can only help. CIs and undercover officers are a real problem that this would go a long way to fix.

 

Regarding possession amounts permitted under sec.8, like I've said before, our smoke and mirrors are better than theirs, and our smoke is much, much better.

 

I really think the Court will firmly insist on evidentiary standards that will fuk up these prosecutors' whole day. All in all anti mj court and police officers will be reined in. I thought I was wrong once, but I was mistaken.

 

My feeling is that Bouchard doesn't care if these cases win or lose. He is gunning for a position elsewhere and building up a resume' in the Republican party with every headline he makes. Sure the Prosecutor will twist some but they are racking up the hours and no one has asked them to fiscally justify the witch hunt yet.

 

"reined in" - That is a nebulous term but I'm willing to bet a 6 pc. Buffalo Wild Wing of your choice that Bouchard doesn't alter a single thing in his "policing" approach regardless the outcome. Oakland County funds this State and they know it. Listen to Patterson for two minutes - He is President of Michigan in his mind.

Edited January 19, 2015 by YesMichigan

[Kingdiamond]

Wow. Looks like Oakland County might get slapped here? One can only hope.

 

If they do get slapped, I hope that any cease and desist order that they receive comes with some teeth.

 

Can the Supreme court make them stop doing frivolous prosecutions?

No way Cooper and Bouchard will continue to arrest and prosecute each and every person unlucky to cross their officers paths tread lightly north of 8 mile.

[bobandtorey]

I fully expect that the prosecutors and courts in these cases are about to get a stern talking to. Again.

 

Thompson's piece is a pretty good summation of the events. I think, to this point, the SC has been even handed in its considerations. I remember one of the Justices alluding to unregistered patient and caregiver protection. The ruling should clarify and vociferously support our clearly spelled out options found in both registered and unregistered provisions. There will be some serious commentary speaking to evidence, and pointedly toward the silly prosecution arguments that insist that factual evidence should be the providence of the courts, and rather ensuring that juries remain the finders of fact, leaving findings of law to judges, as has already been clearly ruled by the Court. Cases that go to juries are a prosecutor's worst nightmare. They do not want these cases to go to juries. Period.

 

Cards are prima facie proof of a bona fide relationship, and not only under sec. 4, much like drivers' licenses, which are issued to grant driving privileges, but which also are accepted as prima facie proof of identity always and everywhere, precisely because identity must be established to get one. I still believe it in any caregivers' best interest to obtain clearly stated consent from any patient that they have been specifically appointed as caregiver to said patient in any and all transactions, to include those that are unregistered , along with proof of the bona fide physican/patient relationship. Having that agreement and proof memorialized in print can only help. CIs and undercover officers are a real problem that this would go a long way to fix.

 

Regarding possession amounts permitted under sec.8, like I've said before, our smoke and mirrors are better than theirs, and our smoke is much, much better.

 

I really think the Court will firmly insist on evidentiary standards that will fuk up these prosecutors' whole day. All in all anti mj court and police officers will be reined in. I thought I was wrong once, but I was mistaken.

 

 

Most that have been here from day one have talked about the Card and the  bona fide thing many times and as you pointed out if someone has a card then they must have the Bona Fide Doctor thing  the Sec 4 people shouldn't have to bring in a Doctor that is Sec 8  the Redden/Clark  and the King case spelled it out their are two parts of Law 1 of 2008 why are the Judges still deciding that ?

[Chauncy Gardner]

Medical Marijuana, actually all marijuana, seems to be ground zero in the fight against the government's attack on privacy and personal freedom.

 

It is so obvious that "The Man" wants to keep us under his thumb - more like a boot on the neck actually. In reality though, they are only doing what the voters want. If people were really concerned about these issues, a lot of the perpetrators would have been voted out of office by now.

[bobandtorey]

Medical Marijuana, actually all marijuana, seems to be ground zero in the fight against the government's attack on privacy and personal freedom.

 

It is so obvious that "The Man" wants to keep us under his thumb - more like a boot on the neck actually. In reality though, they are only doing what the voters want. If people were really concerned about these issues, a lot of the perpetrators would have been voted out of office by now.

True 

[GregS]

My feeling is that Bouchard doesn't care if these cases win or lose. He is gunning for a position elsewhere and building up a resume' in the Republican party with every headline he makes. Sure the Prosecutor will twist some but they are racking up the hours and no one has asked them to fiscally justify the witch hunt yet.

 

"reined in" - That is a nebulous term but I'm willing to bet a 6 pc. Buffalo Wild Wing of your choice that Bouchard doesn't alter a single thing in his "policing" approach regardless the outcome. Oakland County funds this State and they know it. Listen to Patterson for two minutes - He is President of Michigan in his mind.

I'll take that bet, albeit with conditions. Boutard might well bring these cases to the courts, but prosecutors and judges will be embarrassed by this coming ruling, I hope and believe to the point that they will resolve those cases in our favor, as they will be strictly and clearly told to toe the line. We can imagine that the courts will tell him to knock it the hell off because they refuse to expend the cost of chasing prosecutions that simply cannot be convicted, amounting to a total waste of court time.

 

Seeya at Hooters.

Edited January 20, 2015 by GregS

[GregS]

Most that have been here from day one have talked about the Card and the  bona fide thing many times and as you pointed out if someone has a card then they must have the Bona Fide Doctor thing  the Sec 4 people shouldn't have to bring in a Doctor that is Sec 8  the Redden/Clark  and the King case spelled it out their are two parts of Law 1 of 2008 why are the Judges still deciding that ?

Umm, because the troglodytes in the prosecution are simply unable to comprehend?

[YesMichigan]

I'll take that bet, albeit with conditions. Boutard might well bring these cases to the courts, but prosecutors and judges will be embarrassed by this coming ruling, I hope and believe to the point that they will resolve those cases in our favor, as they will be strictly and clearly told to toe the line.

 

I need help finding up to date information on arrests in the Tri-Counties. Is there a database that is recommended to search this? Might be a PM thing.

 

The "bet" is that Oakland County arrests will not decrease in 2015 in situations where the Supreme Court ruling may apply. The assumption being that they will go for more pleas instead of letting it get this far in the future.

 

I am betting on the tool of the machine continuing to be a vinegar and water solution in a plastic receptacle. You can still back out.

Edited January 20, 2015 by YesMichigan

[GregS]

I need help finding up to date information on arrests in the Tri-Counties. Is there a database that is recommended to search this? Might be a PM thing.

 

The "bet" is that Oakland County arrests will not decrease in 2015 in situations where the Supreme Court ruling may apply. The assumption being that they will go for more pleas instead of letting it get this far in the future.

 

I am betting on the tools of the machine continuing to be a vinegar and water solution in a plastic receptacle. You can still back out.

Exactly what I am betting on. Maybe this won't work betwixt us. Maybe it won't happen on Boutard's watch, but it will happen. Oakland County courts would do well to be reasonable with their decisions, but they have shown their azxes and demonstrated that reasonableness is far beyond their comprehension.

 

I kinda apologize about the edits that occurred before you responded. I am bad with that. Once, however, there is a response to my remarks, I do stop it.

 

Seeya at Hooters anyhow.

Edited January 20, 2015 by GregS

[YesMichigan]

Exactly what I am betting on. Maybe this won't work betwixt us. Maybe it won't happen on Boutard's watch, but it will happen. Oakland County courts would do well to be reasonable with their decisions, but they have shown their azxes and demonstrated that reasonableness is far beyond their comprehension.

 

I kinda apologize about the edits that occurred before you responded. I am bad with that. Once, however, there is a response to my remarks, I do stop it.

 

I don't think Law Enforcement from the Prosecutor down wants to implement the will of the voters.

 

It reminds me of high school. The class voted for "Joe Walsh: Life's been good to me so far." as the class song. Popular vote won. But the teachers thought we wouldn't like that in 20 years so they chose Bon Jovi something or another just like every other high school in the country that year.

 

Bouchard and Cooper feel they know what the citizens of Oakland County want and they will defend their pristine community from this scourge that they has been beset upon them.

 

Edit on. I edit every post I make because I'm not always so bright the first time around.

[GregS]

Hell. I'm not as bright sometimes the second and third time around. Whaddaya want? I SMOKE DOPE!