Monthly Archives: December 2011

Just Say NO To Marijuana Convictions

Should juries vote “not guilty” on low-level marijuana charges to send a message about our country’s insane marijuana arrest policy?

Jury nullification is a constitutional doctrine that allows juries to acquit defendants who are technically guilty but who don’t deserve punishment. As Paul Butler wrote recently in The New York Times, juries have the right and power to use jury nullification to protest unjust laws.

Mr. Butler points out that nullification was credited with ending our country’s disastrous alcohol Prohibition as more and more jurors refused to send their neighbors to jail for a law they didn’t believe in. He says we need to do the same with today’s marijuana arrests.

There is growing recognition that today’s drug laws are ineffective and unfair. For the first time, a recent Gallup Poll found that 50 percent of Americans want to legalize the use of marijuana. Despite half of our country wanting to end marijuana prohibition, the war on marijuana users is as vicious as ever. There were more than 750,000 arrests last year for possession. In New York City, marijuana possession was the No. 1 reason people were arrested last year, making up 15 percent of all arrests.

People hoping for change should not expect it to come from our “leaders” in Washington. While most of our elected officials know in their hearts that our drug war is an utter failure that fills our prisons while doing nothing to help people struggling with addiction, there is deafening silence when it comes to offering alternatives to the war on drugs. Democrats and Republicans are both cowardly and opportunistic and don’t want to give up their “tough on crime” credentials.

Here is where jury nullification comes in. If our leaders aren’t going to stop the madness, maybe it is up to our peers to say enough is enough.

In Montana last year, a group of five prospective jurors said they had a problem with someone receiving a felony for a small amount of marijuana. The prosecutors, freaked out about the “Mutiny in Montana,” feared they would not be able convince 12 jurors in the state to convict. The judge was reported in the Times as saying, “I’ve never seen this large a number of people express this large a number of reservations,” adding, “it does raise a question about the next case.”

Perhaps the highest-profile call for jury nullification for drug offenses is from the creators of the HBO hit series“The Wire.” Former Baltimore Sun reporter David Simon and the other creators of “The Wire” wrote a passionate piece in Time magazine in which they called on Americans to join them in the use of jury nullification as a strategy to slow the drug war machine. From the article:

“‘A long habit of not thinking a thing wrong, gives it a superficial appearance of being right,’ wrote Thomas Painewhen he called for civil disobedience against monarchy — the flawed national policy of his day. In a similar spirit, we offer a small idea that is, perhaps, no small idea. It will not solve the drug problem, nor will it heal all civic wounds. … It doesn’t resolve the myriad complexities that a retreat from war to sanity will require. All it does is open a range of intricate, paradoxical issues. But this is what we can do — and what we will do.

“If asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented. Save for a prosecution in which acts of violence or intended violence are alleged, we will — to borrow Justice Harry Blackmun’s manifesto against the death penalty — no longer tinker with the machinery of the drug war. No longer can we collaborate with a government that uses nonviolent drug offenses to fill prisons with its poorest, most damaged and most desperate citizens.”

Forty years after President Richard Nixon launched the “war on drugs” the casualties continue to mount with no end in sight. We need to step up our efforts to end this war at home and stop sending our loved ones to cages because they have a drug problem. We have more power than we realize. If the people lead, the leaders will follow.

via Baltimore Sun



The criminal judicial process is confusing to most, if for no other reason than most people figure that they will never have to deal with it. As someone who deals with it on a daily basis, allow me to explain the process as simply as possible. If you are charged with a misdemeanor, you are “arraigned” in front of a magistrate in the local district court who sets your bond and sets the case for a “pre-trial” (also in the district court). If the two sides (the defense and the prosecution) cannot come to a resolution, then the case is set for trial and a trial is ultimately held before a judge or jury in the district court.

Felony cases are a little more involved. In a felony case, following the arraignment, the defendant has a “preliminary examination.” At this examination, the prosecution has the duty to show two things: (1) that a crime was committed, and (2) that the defendant is “probably” the person that committed the crime. If the prosecution meets this burden, then the case is sent up to the circuit court for the defendant to stand trial (this is referred to as being “bound over to the circuit court”). Once in the circuit court, there are various pre-trials, and if no resolution can be reached, then the person stands trial before a judge or jury in the circuit court.

The VAST MAJORITY of felony cases are bound over to the circuit court. It’s hard to assign a percentage, but a good guess is that probably 90% of cases are bound over.

Last week, a gentleman retained Neil Rockind, P.C. to represent him – in a very tough county – regarding the felony charge of Carrying a Concealed Weapon, which is a 5-year felony. He was scared, and rightfully so. If he were to be convicted, he would no doubt lose the most important thing in the world: his KIDS. 

We dove into the case and discovered several disheartening things right off the bat: (1) The Judge was going to be difficult (both from prior experience and talking to other attorneys); (2) We were not going to be able to adjourn the examination – which meant that we were working on an accelerated time schedule; and (3) The police report was seriously lacking, including the names of some officers – which we ultimately had to track down and subpoena before the examination (all within 5 days!). All of this taken care of – we began prepping for the examination.

While most attorneys advise their clients to “waive” their preliminary exams or, alternatively, go into court with the preconceived notion that bind-over is a foregone conclusion, Neil Rockind does the opposite. Neil goes into EVERY SINGLE examination thinking the same thing: “We have a chance to beat this case at the examination and that’s exactly what we are going to try to accomplish.”

Neil appeared in court this afternoon with our client, prepped and ready to proceed with the preliminary examination. However, after several discussions with the prosecuting official (and countless hours worth of work prior to the actual court appearance), the State decided that it could not proceed with the case!

ALL CHARGES DISMISSED AT THE EXAM – including the felony CCW charge! And now the client can have some peace of mind during the Holiday Season.

This is what we do. This is who we are. And this is how we fight.

If you or a loved one are investigated or charged with a crime this holiday season, please do not talk to the police. Instead, call our office as soon as possible at 248-208-3800 to learn how Neil Rockind, P.C. can protect you.

Judge Rules that Patient-to-Patient Transfers are Legal

Barry County Circuit Judge Amy McDowell dismissed felony delivery of marihuana charges after finding that a transfer of less than 2.5 ounces of marihuana between Qualifying Patients is protected by Michigan’s Medical Marihuana Act.The Judge based her decision on the clear language of the Act.  Specifically, she noted that a Qualifying Patient engaged in the “medical use” of marihuana is protected from prosecution or penalty. And because “medical use” is statutorily defined to include the “transfer” and “delivery” of marihuana, the felony charge for delivering marihuana could not stand.

Matt Newburg of Newburg Law, PLLC represented the Defendant and said “it is refreshing to see the facts applied to the law.  We felt confident about our case and knew it would come down to the clear language in the statute.  We have always believed patient-to-patient transfers were not only protected but authorized by the Medical Marihuana Act.”

It is not clear whether the Barry County Prosecuting Attorney will appeal the Judge’s decision.

Click here to read Defendant’s Motion to Dismiss, here to read the prosecuting attorney’s brief and here to read Defendant’s response to the Prosecuting Attorney brief.

via On Medical Marijuana

Attorney General Eric Holder on Medical Marijuana

Last week Attorney General Eric Holder made several statements regarding State’s rights with respect to Medical Marijuana. After reading Holder’s comments, one thing is abundantly clear: Holder does NOT believe that federal law conflicts and/or trumps all state medical marijuana laws! Read his responses below; if he believed there was a conflict, then he would say so.

As it is, Holder acknowledges that there is a place for medical marijuana at the state level. Michigan municipalities, politicians, judges, prosecutors, and police officers that are arguing that there is a direct conflict between Michigan Law and federal law should study Holder’s words and alter their actions for conformity therewith.

U.S. Rep. Jared Polis (D-CO)
Questions for Attorney General Eric Holder on Enforcement of Federal Marijuana Policy

House Judiciary Committee Hearing

Thursday, May 13, 2010

Polis: Thank you, madam chair. My first question is with regard to federal — the policy with regard to drug enforcement administration and marijuana policy, building off what my colleague, Mr. Cohen asked earlier. I certainly applauded and greet with warm welcome, representing one of the states that has a medical marijuana law and regulates the sale of marijuana, the memo describing the intent of D.A. and U.S. Attorneys. I would like you to describe the objective processes that the D.A. and U.S. Attorneys are using in order to make a determination about whether individuals are in, quote, clear and unambiguous compliance with state law. How is that determined?

Holder: Well, it’s done on a — you know, people get — I guess tired of hearing this, but it is true. It’s done on a case by case basis. We look at the state laws, and what the restrictions are, what the — how the law is — how the law is constructed, and there are a number of factors in that memo–that are — are guides. Is marijuana being sold consistent with state law? Are arms — are firearms somehow associated with the sale? There are a variety of factors that are contained within the memo that went out from the Deputy Attorney General that United States’ Attorneys and Assistant United States’ Attorneys are supposed to apply, supposed to consider when trying to make the determination about whether or not federal resources are going to be used to go after somebody who is dealing in marijuana.

Polis: I would certainly encourage that the question of whether or not it’s consistent with state law certainly be left to state enforcement actions. In particular, I brought to your concern in a letter of February 23rd requesting a clarification of your policies regarding medical marijuana with regard to several statements that were made by one of your agents in Colorado, Jeffrey Sweeten. Along the lines of the quote — as quoted in the paper, the time is coming when we go into a dispensary, we find out what their profit is, we seize the building, and we arrest everybody. They’re violating federal law. They’re at risk of arrest and imprisonment, end quote. I would like to ask what steps you might take to make sure that the spirit of the enforcement mechanisms that you outlined to me and the answer to your previous questions are not contradicted by the statements of agents that, in fact, then strike fear into legitimate businesses in eyes of our states.

Holder: Well, it’s incumbent upon me as Attorney General to make sure that what we have set out as policy is being followed by all of the components within the Department of Justice and to the extent that somebody at the DEA, somebody at — some Assistant United States’ Attorney is not following that policy. It is my responsible to make sure that the policy is clear, that the policy is disseminated, and that people act in conformity with policies that we have determined.

Polis: Do you believe — do you agree that statements that could be reasonably taken as threatening to businesses that are legal in our state are, in fact, contrary to your stated policy?

Holder: Well, again, if the entity is, in fact, operating consistent with state law, and is not — does not have any of those factors involved that are contained in that Deputy Attorney General memo, and given, again, the limited resources that we have and our determination to focus on major traffickers, that would be inconsistent with what the policy as we have set it out.

Attorney General Eric Holder: Federal Interference In Medical Marijuana A Low Priority

It’s easy to get whiplash trying to keep up with federal medical marijuana policy, and my neck’s hurting again after hearing the latest from Attorney General Eric Holder. Holder on Thursday repeated the support of the Department of Justice for the Ogden Memo, the 2009 policy statement which deprioritized the prosecution of medical marijuana providers who are following state law.

“What we said in the memo we still intend, which is that given the limited resources that we have, and if there are states that have medical marijuana provisions … if in fact people are not using the policy decision that we have made to use marijuana in a way that’s not consistent with the state statute, we will not use our limited resources in that way,” Holder said in his usual convoluted (dare I say tortured?) fashion, reports Lucia Graves at Huffington Post.
Holder’s pained expression and body language as he deals with the question speak volumes. The Administration is caught between a rock (federal marijuana laws) and a hard place (the cannabis vote), which means “break out the fancy footwork” every time the subject comes up.
An interesting question at this point is if the continued wails of dismay from the medical marijuana community — sizable numbers of whom, during the 2008 election, had lined up behind Obama and his seemingly medicinal cannabis-friendly (or at least reasonable) stance — is finally starting to once again impact the Administration’s stated policy.

Holder’s comments came in response to a question from Rep. Jared Polis (D-Colo.) during a hearing on the DOJ’s scandalous program of handing out weapons to Mexican drug cartels.
Polis — a longtime friend to the medical marijuana community– asked about the recent federal saber rattling and crackdown on California dispensaries, where the state’s four U.S. Attorneys have forced hundreds of collectives to close down in the past two months. The shutdowns have come largely as a result of threatening letters sent by all four U.S. Attorneys’ offices, threatening landlords with property seizure, dispensary operators with eviction, and both with imprisonment.
Polis asked whether Colorado dispensaries could expect to get different treatment.
“It’s my understand [California] did not have a functional state-level regulatory authority,” Polis said, “Colorado does have an extensive state regulatory and licensing system for medical marijuana, and I’d like to ask whether our thoughtful state regulation … provides any additional protection to Colorado from federal intervention.”
Holder’s vague response did give Polis reason to hope for better treatment of Colorado colletives, at the same time hinting that California’s regulation of the shops is seen as ineffective.
“Where a state has taken a position, has passed a law and people are acting in conformity with the law — not abusing the law — that would not be a priority with the limited resources of our Justice Department,” Holder said.

READ THE BRIEF! District Court Judge Rules Marijuana Is No Longer A Schedule 1 Controlled Substance

Last month Neil Rockind and Colin Daniels convinced a judge in the Troy District Court that marijuana should no longer be classified as a schedule 1 controlled substance – primarily because of the language contained within the Michigan Medical Marihuana Act.

Now you can check out the Brief that we filed in support of our arguments.

Get the Brief here ——–> Medical Marijuana Brief