Courageous judge dismisses case against Ferndale dispensary
By Curt Guyette
While News Hits is passing out praise for displays of judicial gumption, we’d like to give a nod to Oakland County Circuit Court Judge Daniel O’Brien, who dismissed all charges brought against the operators and employees of Clinical Relief, a medical marijuana dispensary in Ferndale that got busted in mid-2010.
When this rag took an in-depth look at where things stood as the three-year anniversary of the state’s medical marijuana law was marked last year (“High stakes,” Nov. 2, 2011), we focused in part on the plight of Barb Agro, a former police dispatcher in her 70s who was among those arrested when the business got raided.
Agro was an employee at the facility being run by two of her sons. As certified patients and caregivers, she and her husband, Sal, were also growing pot at their home in Lake Orion.
Sal never lived to have his day in court; the former GM worker and longtime youth sports coach died of a heart attack a week after narcotics officers wearing masks and wielding weapons conducted their raid.
Last year, Barb was found guilty of manufacturing and delivering marijuana, a felony. She received 90 days probation and 20 hours of community service. A key aspect of that case was that the Oakland County Prosecutor’s Office was successful in its attempt to keep jurors from hearing that Agro — who was accused of failing to follow the letter of the medical marijuana law — was a registered patient and caregiver.
But that wasn’t the end of her legal troubles. Along with sons Anthony and Nicholas, as well as five others associated with the clinic, she faced another round of felony charges.
Last week Judge O’Brien dismissed charges against all of the defendants. Although he didn’t issue a written opinion, O’Brien ruled from the bench that he was dismissing the charges because, at the times the arrests were made, aspects of the medical marijuana law regarding sales were ambiguous.
Because owners of the facility believed that they were in compliance with the law — going so far as to invite Ferndale police in for a tour of the operation — it is apparent that there could have been no criminal intent on the part of the defendants.
Oakland County Prosecutor Jessica Cooper doesn’t see things that way, however. She told News Hits last week that her office intends to appeal O’Brien’s ruling.
“We are concerned that the only people who believe this [law] is confusing are the people who are operating outside the law,” she explains. “There are many, many people who have debilitating diseases who have their card, who abide by all the conditions of the law. There’s no prosecution of them.”
Dispensaries, she contends, have been ruled illegal by the Michigan Court of Appeals, and as a result her office is determined to see that the law is enforced.
Not everyone agrees with her interpretation of the Court of Appeals ruling regarding the sale of medical marijuana.
But even if you do, argues Neil Rockind — one of the defense attorneys involved in the Clinical Relief case — that ruling wasn’t in place when the facility was raided and charges brought.
Even state Attorney General Bill Schuette, an ardent prohibitionist when it comes to any use of marijuana, argued before taking office that there’s “not a single paragraph, sentence or word” in the state’s medical marijuana law “that prohibits pot shops from opening in Michigan. …”
As Rockind notes, authorities in Oakland County didn’t have to use such a heavy hand to come down on the clinic and its employees. Instead of pursuing felony charges, they could have attempted to close the clinic by having the court declare it a public nuisance, making the issue a civil rather than a criminal matter.
Given that sort of go-for-the-jugular attitude on the part of prosecutors, O’Brien is to be commended for having the courage to “make the correct decision,” Rockind contends.
For her part, Barb Agro says she and her family are prepared to keep mounting a vigorous defense of their actions.
“I always told my kids, ‘Don’t go starting fights, but don’t back down from them either,'” she told News Hits in a phone interview from her home in Florida. “So we will continue to fight.”
She also thinks, however, that more must now be done to protect the rights of patients and caregivers. Which is why she says she’ll support the recently announced effort to get on the ballot a state constitutional amendment that would end marijuana prohibition in Michigan.
“I would never have supported that before,” she says. “But with all the confusion that there is, all the raids and all the money that’s being wasted, we might as well legalize it and start bringing in bucks [in the form of taxes on pot]. If we do that, then no one will have to go through what we’ve had to.”