Michigan House votes to study marijuana limit for drivers

LANSING – A bill advancing in Michigan’s Legislature may set the stage for setting a legal limit for driving under the influence of marijuana.

The House voted 107-1 Tuesday to create a commission to research and recommend a threshold of THC bodily content that would constitute evidence of impaired driving. THC is the component of marijuana responsible for the drug’s effects.

Unlike other Schedule 1 drugs, THC can be detected in the body long after it no longer affects someone’s driving ability.

Michigan’s law legalizing marijuana use for medical purposes shields patients from prosecution for drugged driving as long as they aren’t “under the influence” of marijuana. Legislators hope to define a limit similarly to how there’s a bodily alcohol content of 0.08.

via Lansing State Journal

Bashara attorney files motion for Gentz to testify in hopes of getting new trial

DETROIT – The Bob Bashara epic continues.

Bashara’s attorney filed a motion for a writ requesting to have convicted murderer Joe Gentz brought from prison to testify before the court in the hope that Gentz’s new testimony would lead to a new trial for Bashara.

Gentz’s originally story was that Bashara hired him to kill his wife Jane Bashara. While serving time in prison for the murder, he refuted his testimony.

In a sworn affidavit, Gentz said the former police chief of Grosse Pointe Park, David Hiller, and the detective who investigated the slaying when it happened in January of 2012 allegedly told him to lie.

Gentz wrote in the affidavit, “My testimonial statements against Mr. Robert Bashara was the product of coercion and subornation of perjury by Sgt. Reducio and Chief Hiller.”

He also said that Bob Bashara was not home at the time Jane Bashara was killed, contradictory to his original story where he claimed Bob held a gun to his head as he strangled Jane

Bashara was found guilty in December on counts of first-degree murder, conspiracy to commit first-degree murder, solicitation to commit murder, witness intimidation, and obstruction of justice.

Bashara’s attorney filed the motion last week.

“If he even has one shred of believability, look out, we could be looking at another trial,” attorney Neil Rockind said.

If the motion is granted, court sessions could resume in April, but ultimately that is up to Judge Vonda Evans.

via Click On Detroit

THE COVERUP: FROM THE INSIDE OUT

Introduction

Like out of a movie, we recently caught a police narcotics section engaging in a coverup and misconduct.   I’m not talking about theories of a coverup where people articulate or allege a coverup or misconduct and I’m not talking about an alleged coverup where the client says it happened and all of the police officers involved deny it. No, I’m talking about a police investigation, police conduct, police reports, police strategy in court, etc. that actually implodes on itself – one where a coverup is evidence by reviewing the officers’ conduct without reference to much more. Without going into details about the officers, county, etc., what follows is a tale of a police coverup that has now been exposed and that resulted in the dismissal (by an ethical prosecutor) of all of the charges once the coverup was exposed. Here is the amazing story – sit back and enjoy.

The Friends

The story begins with four (4) friends from childhood. One would go on to become a police officer. The other three involved themselves in the marijuana trade: two operating, at times, popular dispensaries and, the third was growing and selling marijuana to various dispensaries. The “grower” and the officer were best friends and remained best friends despite their having taken up opposite sides of the criminal justice system.

In the end, it was the desire of the officer to help his best friend, the marijuana grower, that ultimately did them in.

The Breach

As the officer worked in a narcotics unit, he was entrusted with serious and protected information. Clearly, were he to come across information and/or evidence that his best friend (the marijuana grower) was going to get in trouble, he should disqualify himself from the investigation and do nothing. Clearly, it would be illegal for him to tip off a drug dealer, target or accused with information that he learned in the course of his duties. While as a friend, he’d want to tip off his best friend, as a police officer who swore an oath, tipping off a target is illegal and unethical.

Impressively, his honor and commitment to his friend overwhelmed him. After raiding a dispensary and seeing the vendor list (of people supplying marijuana to the dispensary) he advised his friend that his friend’s name was on a list. He also advised the friend that his name would be “removed” from evidence.   In and of itself, this is a crime. Yet there is more.

On a Monday morning, the officer learned that his best friend’s marijuana grow house was being targeted for investigation.   Again, remaining faithful to his best friend, the officer advised his best friend to clear out the house.   Under any definition of the terms, this is a (felony) crime – obstruction of justice, misconduct in office or both.   No matter how much a police officer cares about a target, he cannot warn his friend, i.e., tip him off, that his grow/drug house is about to be raided.   On this point, no one can seriously disagree. Yet, this is most assuredly what he did.

The Transfer Of The Plants

What happens next, the marijuana grower empties out his house of plants and moves them to a warehouse in which my client occupies a front office and out of which he operates another business.   Coincidentally (maybe/maybe not), another crew of the same narcotics group/unit were in the area on the same day that the plants had been moved and claimed to have “smelled marijuana” coming from the warehouse.  Sound suspicious? You bet.

As the officers were securing a warrant, they observe the best friend walking up the building and attempt to enter. As the make entry to the building, they detain the friend. This is when the coverup begins.

The Coverup

After detaining the best friend/grower, the cops talk with the best friend/grower for 45 minutes! They take his information, driver’s license information and actually interview him. The grower’s friend/cop comes down and participates in the matter as well. All told, the grower/friend is interviewed in the warehouse, out in the open, for all of the other police officers searching and seizing items to see.   So obvious and apparent is the grower/friend’s relationship with the cop that one of the other officer’s says to the best friend/grower, “why didn’t you tell me you were the officer’s best friend? I’d have let you go from the start.”

When all is said and done, the police raid that warehouse and then raid two (2) more buildings that night. However, they don’t raid any of the homes of the any of the individuals involved in the warehouse or the home of the best friend/grower that night.   Anyone familiar with search warrant executions, knows that this is suspicious.

They Don’t Ask For Permission Or Make Appointments

As it turns out, the cop, best friend/grower, my client and the person that used the warehouse for other purposes are all friends. After the cop/friend comes down to the warehouse, none of the houses or the four friends are searched. The next day, the grower/best friend gets a friendly call from the cop/friend: “you need to let us search your house later today or else they’ll get a search warrant. When can we come by?” Now anyone familiar with this process knows that police don’t make reservations to search the homes of suspected drug dealers or traffickers – they just show up. They don’t make appointments or arrange for times later in the day to search because to do so would mean that the growers/traffickers would clean out the house of all contraband.

I start hearing rumors that our client is going to catch the brunt of the charges in the case and that the friend/grower is going to skate. Concerned that out client will take the heat, I lay out what I know to the police and the head of the detective bureau. I advise them to leave this case alone – too much foul play has transpired to pursue a case. I advise them further that if the friend tried to help out a friend/grower, then leave it alone for all. I got a short response from a command officer wanting to know if my client wanted to talk. Of course, with possible pending criminal charges and an aversion to cooperation, we declined. Again, I advised them to do an investigation and they’d uncover the information on their own – the police had engaged in foul play to protect a friend’s friend.

“Expect A Whitewashing”

A couple of days later, I get word from a lawyer representing the friend/grower that 1) the police are going to whitewash the grower out of the reports, 2) the reports will just say he was “passing by”, 3) my client owes it to the friend/cop that his house wasn’t searched and 4) they will only be going after my client and the other person using the warehouse. The lawyer advised me that my letter to the police and command structure may have changed the direction of the police department but he wasn’t sure.

The Case – We Prepare To Expose Them

A full six months later, we learn that the police have actually decided to bring charges against my client and the other warehouse occupant. The grower/friend is not charged. I’m stunned. I think, “how arrogant?!”   Incredibly at that point, I didn’t even know how arrogant the group was – I would learn soon enough.

The police are clever. Since there are several officers, they can assign different officer’s to do things, thus avoiding having the main actors involved in the coverup actually writing reports, etc. The officer that made the “you should have told me were his best friend” didn’t write a report; neither did the best friend/officer. Rather, an officer that has close to nothing to do with anything writes the report. Yet, he writes the report just as the lawyer predicted 6 months earlier in November:

“[name withheld] walked up, punched a number in the door and then started to walk away. We approached and talked to him. It turns out that he was ‘just passing by.’”

I couldn’t believe it. I had incredible proof of a conspiracy to conceal and coverup, i.e., to mislead.   Six (6) months before I ever received a police report, I was advised (and recorded the information at that time) that the police were going to write a misleading report “whitewashing” the friend/grower out of the incident and instead say he was going just passing by.   When I got the report, six (6) months later, I couldn’t believe that they had done just that – whitewashed him out. It reminded me of a scene from Quiz Show.

Quiz Show Moment

In Quiz Show, the federal government was investigating whether a Quiz Show was rigged – whether the contestants received the answers ahead of their appearance. To prove that he had received the answers ahead of time, one of the contestants mailed the answers to himself prior to his appearance. The postmark, before his appearance, proved that he had received them ahead of the show.

My notes from November, 2014 was looking like a Quiz Show moment. I have information in November, 2014 that the police would whitewash the grower’s name from the reports and 6 months later, that proved true. It was like mailing the answer to myself before I ever saw the test.

We were stunned that the police had brought this case. It was one thing to do a favor for a friend … quite another to try and pass off misleading reports and omit a possible 3rd suspect from the reports.  We wanted to ensure that the police didn’t get away with it and that our clients received the best outcome possible.

Setting It Up and Springing It

For months, we hinted to the prosecutor that we had the goods on this case and on the narcotics unit crews involved.   I recorded an interview with the grower in which he reluctantly spilled the beans and then later tried to assert the 5th Amendment due to self-incrimination. His attempt to protect himself made his statements admissible in court.   Having the evidence in place (in the form of a tape) and a timeline that made sense, we sprung the first trap: we prepared to cross examine the detectives at a hearing. However, they involved a fourth officer in the coverup – rather than call anyone of the officers that talked to the grower or even the one that wrote the report, they called another.   It was as if they were trying to avoid exposing the officers that played the biggest role and so they kept turning to others to play a role.

The officer that testified in court looked like he was training for a wrestling match – trying to make weight – during his testimony. He stammered and sweated his way through the hearing. Even the judge commented on his inconsistent answers. When I was questioning about the grower/friend, he looked like he had seen a ghost.

Soon, we filed our legal arguments – entrapment, vindictive prosecution, hiding exculpatory evidence, illegal search warrants, etc. The judge was biting on the arguments and granting us hearings and became more interested. At one point she looked at the prosecutors like, “are you really going to continue.” At first, the young prosecutor pushed on. Later, to his credit, a more senior and extremely ethical prosecutor, stepped in and after learning everything said, “enough.”   This second prosecutor is among the best and most ethical around – he was concerned on many levels: why had they done this, why had the police presented this case, how many officers were involved, why had they hidden evidence and why was this case in court? He was upset about the case and concerned about the long term consequences regarding these drug detectives. Could and should they continue in their jobs, were questions that still needed to be answered.

The Dismissal And Questions Unanswered

I got the call this week that the case was being dismissed. This was the proper result. What the police did was reprehensible. This much is indisputable. But think about what happened along the way and how the checks and balances didn’t check and balance this case out until the end:

  • The police officers concealed evidence and the involvement of people;
  • They involved other officers;
  • They deliberately involved other officers in other facets of the case to shield the involved officers from examination and scrutiny;
  • The officers didn’t police themselves;
  • The supervisors didn’t police the suborninates;
  • The reviewing prosecutors didn’t scrutinize this case; and,
  • The first assigned prosecutor didn’t scrutinize this case.

It took months and a more experienced, ethical prosecutor to realize that the police erred. But it begs the question: should this case have made it this far and shouldn’t someone along the way have stopped the coverup and its aftermath long ago. The tally is as follows:

  • One officer tipped off a friend about a raid;
  • The same officer told his friend he had erased his name from evidence;
  • The same officer tipped off his friend that his grow house was going to be raided;
  • A crew of officers happened to be in the area where the plants were moved to – the same day and within hours;
  • Another officer told a potential suspect that he would call his friend a police officer;
  • That same officer told the potential suspect that “why didn’t’ you tell me you were [name withheld’s] friend”;
  • That same officer let the potential suspect go;
  • A third officer told someone that they were going to whitewash the reports and exclude the suspect;
  • A fourth officer wrote a report, white washing the grower out of the report;
  • A fifth officer testified; and,
  • A sixth officer sat by as the officer in chard.

In other words, an entire crew committed some form of misconduct.   While my client’s case was dismissed, what happens next remains to be seen. Stay tuned for more from Rockind Law.

U.S. Supreme Court declines to referee state disputes over marijuana

The U.S. Supreme Court declined on Monday to take up a lawsuit filed by two neighboring states of Colorado over its legalization of marijuana.

Nebraska and Oklahoma said Colorado’s decriminalization has “increased the flow of marijuana over their borders,” forcing them to expend greater “law enforcement, judicial system, and penal system resources,” thereby harming the welfare of their residents.

They claimed to suffer “a direct and significant detrimental impact – namely the diversion of limited manpower and resources to arrest and process suspected and convicted felons involved in the increased illegal marijuana trafficking or transportation.”

Colorado’s approach, they argued, is in direct conflict with federal law, which makes it illegal to possess even small amounts of marijuana.

The court turned the case away in an unsigned opinion. Justices Clarence Thomas and Samuel Alito dissented. Writing for them both, Thomas said court should have taken the case because “the plaintiff states have made a reasonable case.”

There were no lower court decisions, because disputes between the states come directly to the Supreme Court.

Nebraska and Oklahoma did not challenge Colorado’s legalization itself. Instead they said the way it regulates the manufacture, possession, and distribution of marijuana was causing them harm

But Colorado said its neighboring states real quarrel is with the federal government’s policy of declining to prosecute cases of simple possession in states where marijuana use has been legalized. Those states should sue the federal government, not Colorado, it said.

“A state does not violate the sovereign rights of another state, by making a policy decision that parts ways with its neighbors,” Colorado said.

The Obama Justice Department urged the Supreme Court not to take the case. “Entertaining the type of dispute at issue here – essentially that one state’s laws make it more likely that third parties will violate federal and state law in another state – would represent a substantial and unwarranted expansion of” of the Supreme Court’s jurisdiction.

via MSNBC

Marijuana charge against Green Grow owner dismissed

A judge dismissed marijuana-related charges against a South Lyon businessman whose Livingston County homes were used by a friend to grow marijuana for medicinal purposes.

Jeffrey William Mote’s attorney sought the dismissal after a preliminary exam yielded no “reliable evidence” to support the prosecution’s allegation that the 50-year-old man, who owns and operates Grow Green MI in Whitmore Lake, possessed with an intent to deliver or that he delivered 20-200 marijuana plants.

“This is a case that should never have been bound over,” defense attorney Neil Rockind said Wednesday. “Jeff Mote runs a clean business. … It’s a legitimate business, and he has nothing to do with marijuana cultivation, sales or shipping. He was in the wrong place at the wrong time.”

Judge Michael P. Hatty dismissed the charges Friday against Mote without prejudice, which means the prosecution could refile charges.

Livingston County Prosecutor William Vailliencourt said his office would review the case to determine if the charges should be refiled “if police are able to identify or uncover additional evidence.”

“While we thought the evidence was sufficient to support the charge, and the district judge agreed, Judge Hatty had a different view of the evidence,” the prosecutor noted.

Drug Enforcement Administration agents and Michigan State Police raided Mote’s business, Grow Green MI on Canterbury Road, in May 2013 as well as two homes on Pinckney and Chilson roads in Livingston County following a three-year investigation that began with a tip from a former Grow Green employee.

Testimony at a six-day preliminary exam that spanned nearly 10 months revealed a DEA agent found marijuana plants as well as fertilizer and other related equipment for a marijuana-grow operation at the Chilson Road home, while a second DEA officer testified that she saw “marijuana plants” in several rooms at a home on Pinckney Road.

In all, she said, officers seized 40 plants and about 2 pounds of dried marijuana from the Pinckney Road home.

Mote owns the homes, which were quit claim deeded to him from co-defendant Anthony Charles Portelli, 42, of Whitmore Lake, who is manager of the Grow Green MI business. However, Portelli pays the mortgage and maintains the homes, according to testimony.

In addition, an undercover narcotics officer testified that Mote was not seen visiting or entering the two homes during the three-year period he was under surveillance.

Following the hearing, District Judge Carol Sue Reader bound over the cases to Circuit Court for trial.

However, Rockind argued Reader erred in her decision because there is no evidence connecting Mote to the marijuana-grow operations in either home.

The defense’s position is arguably supported by testimony from an undercover narcotics officer who admitted that his memory and police report of the situation were not reliable and were factually inaccurate.

In the police report, the officer stated Mote “purchased” the homes, but he later acknowledged that Mote quitclaimed the homes and that Portelli pays the mortgage. The police report also notes that Mote discussed his relationship with a third co-defendant, but the officer’s notes contain no such discussion.

The officer also testified that although his notes from Mote’s interrogation were taken in chronological order, the police report did not reflect the same order. He also said Mote knew how marijuana was being distributed, but later acknowledged the Mote did not actually know anything about the alleged marijuana distribution.

At the end of the officer’s testimony, he acknowledged that his report and his memory were not reliable.

On Wednesday, Rockind said Mote’s case emphasizes the importance of recording police interrogations.

“No person’s life or liberty should be left to the things we had to argue in this case,” he said. “We can do better. Everyone has a cellphone, and every cellphone has the ability to do a voice recording.

“If it’s important enough to discuss in court, it’s important enough to be recorded,” Rockind added. “I think if we had tape recording of Jeff, we wouldn’t have gotten here.”

The third co-defendant was sentenced in January to six months of probation for maintaining a drug house. Portelli’s case is still pending in Circuit Court.

via Livingston Daily

Appellate judge pleads guilty, in private, in airport gun-possession case

A Michigan Appeals Court judge waived arraignment and pleaded guilty Tuesday, in private, to a misdemeanor gun-possession charge.

It concerned the loaded handgun reportedly found by Detroit Metropolitan Airport security screeners last month in the carry-on luggage of Judge Henry William Saad.

The Wayne County prosecutor’s office said in a written statement that it had pushed for Saad’s guilty plea to be made in open court rather than chambers of Judge Tina Brooks Green, the Detroit News reports. She is the chief judge of the 34th District Court in Romulus.

However, Green contradicted the prosecutor’s office claim that the plea took place in her chambers, contending that it was made at another courthouse location, the Detroit Free Pressreports.

Asked by the newspaper whether Green received special consideration in being allowed to plead guilty in private, Green said “absolutely not,” explaining that such a “plea by mail” is routine in airport security cases.

“It’s not the crime of the century, and it’s standard practice,” she told the newspaper.

Saad pleaded guilty to possessing a firearm in a sterile area, the Free Press says, and he was ordered to pay a $750 fine. However, sentencing was deferred for 90 days and the case apparently will be dismissed if the judge avoids further trouble during that period.

via ABA