Monthly Archives: March 2012

Lawmakers Could Say ‘No’ To Marijuana Treatment For Glaucoma

The state Senate could vote this week on the first major amendment to Michigan’s medical marijuana law since it was adopted by voters in 2008. The measure would strip the eye disease glaucoma from the list of maladies that would qualify a patient for a medical marijuana card.

Physicians such as glaucoma specialist Tim Page say too many patients are turning to marijuana in lieu of proven medical treatments that keep people from going blind. He says, at best, marijuana offers just a brief respite from glaucoma’s symptoms.

“Our concern is that the patients will believe that glaucoma can be treated with marijuana and that simply is not true,” he says.

“I don’t care what doctors say or whatever. This is me, and the idea of going blind terrifies me,” says glaucoma patient Barbara Knox, who says this is about her right to make her own medical decisions.

It would take super-majorities in the Senate and the House to amend a law that was enacted by a vote of the people.

via Interlochen Public Radio

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EDITORIAL: Legislature needs to clarify Michigan’s medical marijuana law, not make it stricter

Michigan voters couldn’t have been more clear about their intentions when they approved the Medical Marihuana Act by an overwhelming margin in 2008. They wanted to make marijuana legally available to people with chronic illnesses. Unfortunately, the law itself could hardly have been more vague. Its hazy language has created a legal mess that we’ll be sorting out in the courts for the next couple of decades – unless either the Legislature or medical marijuana advocates themselves step in to provide much-needed clarity.

Lawmakers currently are taking a crack at amending the law, and we’re underwhelmed by the attempt. Like too much of the approach we’re seen so far, the reform measures seem driven more by an overzealous effort to restrict the availability of medical marijuana, rather than a sincere attempt to carry out the will of the people.

The reforms currently before the Legislature are primarily aimed at tightening the regulations on the cards required to purchase medical marijuana and how they are obtained – prohibiting, for instance, the practice of physicians certifying patients whom they haven’t seen in person.

While the current system for getting a medical marijuana card is admittedly loose, we don’t see tightening it as a legislative priority. The intent of the law was never to impose a restrictive approval process. If the Legislature is going to tackle this law, it should focus instead on the legal chaos that currently surrounds the question of “dispensaries’’ that distribute medical marijuana.

Unfortunately, the Medical Marijuana Act offers no guidance on the issue. It authorizes the legal use of marijuana for medical purposes, but it is built around the concept that the patient grows his or her own marijuana, or receives it from a “caregiver,’’ a grower who is allowed to supply up to five patients. In the real world, that ideal notion has not proven to be particularly workable. Many patients either can’t or don’t want to grow marijuana, and it’s often hard for them to find someone who’s willing to cultivate it for them. As a result, they turn to dispensaries, which quickly began to sprout up across Michigan, particularly in communities like Ann Arbor, which long has had a lenient attitude toward marijuana and strongly supports the concept of medical marijuana.

A dispensary is a facility that often resembles a storefront operation and that distributes medical marijuana. The Medical Marihuana Act says nothing about dispensaries; nor does it adequately define what compensation someone may take for providing medical marijuana to a patient. The result has been a hodge-podge of local ordinances, raids by law enforcement officials who don’t recognize the legality of dispensaries, and years of litigation to come.

For the medical marijuana law to be carried out in the way voters intended, dispensaries should be explicitly allowed. We’re convinced the public supports the concept. What we need right now – and clearly lack – is a legal basis statewide for dispensaries to exist and be regulated in a reasonable, consistent manner. On the local level, Ann Arbor has demonstrated how this can be done. City Council, working with local medical marijuana advocates, crafted a workable ordinance that seemed to satisfy everyone’s concerns.

Ideally, we’d like to see advocates work with lawmakers on the state level to develop a coherent policy for dispensaries, much as was done here in Ann Arbor. But we’re not optimistic that the Legislature could deliver anything like that in an election year, particularly given the prohibitive mindset that seems to prevail in Lansing.

In the four years since voters adopted the law, the problems created by its silence on the dispensary issue and by its vague wording in other areas have become readily apparent. Perhaps it is time for advocates of medical marijuana to bring forward another ballot proposal that offers the clarity that their original effort lacked. We don’t underestimate the amount of work that would be involved in that, but we also are confident that voters would welcome such a measure and approve it with the same broad support they showed in 2008.

The alternative, we fear, will either be inadequate, restrictive legislation or a prolonged period of legal wrangling in the courts. It shouldn’t be that complicated. The citizens of Michigan knew what they were voting for, and they heartily endorsed it. It’s unfortunate to see this populist effort sucked into a legal quagmire that advocates may have to sort out themselves if they want their original intent to be honored.

via AnnArbor.com

Supreme Court Lays Out New Plea Bargain Standards

WASHINGTON (AP) — A divided Supreme Court on Wednesday laid out new standards for criminal plea bargains, saying defense lawyers must do a competent job advising and informing their clients of prosecutors’ offers of less prison time for convictions and guilty pleas.

Justice Antonin Scalia, in a rare move, dissented aloud from the bench, calling the decisions “absurd” and warning courts would be flooded with appeals from criminals now claiming their plea bargain rights were violated, despite the fact that there is no legal right to a plea bargain.

“The court today embraces the sporting chance theory of criminal law, in which the state functions like a conscientious casino operator, giving each player a fair chance to beat the house, that is, serve less time than the law says he deserves. And when a player is excluded from the tables, his constitutional rights have been violated,” Scalia said. “I do not subscribe to that theory. No one should, least of all justices of the Supreme Court.”

The two opinions, both written by Justice Anthony Kennedy, have the potential to affect thousands of criminal cases with the Justice Department reporting that 97 percent of federal convictions and 94 percent of state convictions in 2009 were the result of a guilty plea.

The decisions laid out by Kennedy means that criminal defense lawyers are now required to inform their clients of plea bargain offers, regardless of whether they think the client should accept them, and must give their clients good advice on whether to accept a plea bargain at all stages of prosecution. If they don’t, Kennedy said, they will run afoul of the Sixth Amendment right to assistance of counsel during criminal proceedings.

“The right to counsel is the right to effective assistance of counsel,” Kennedy said.

In the cases before the court, Galin Edward Frye was never told by his lawyer about plea bargain offers from Missouri before he pleaded guilty to driving with a revoked license before his trial. In the second case, Anthony Cooper rejected a plea offer on the advice of his lawyer, and then was convicted of assault with intent to murder and other charges and sentenced after a jury trial in Michigan.

In both cases, Kennedy sent the convictions back down to the lower courts because the actions of the lawyers.

“This court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused,” Kennedy said. “… When the defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.”

In the second case, “if a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it,” Kennedy said. “If that right is denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence.”

Kennedy was joined in both opinions by the court’s liberals, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

In Frye’s case, a lower court will have to decide whether prosecutors would have been required to stick to their offer to Frye, because he was rearrested on the same charge of driving with a revoked license less than a week before his preliminary hearing.

Frye’s August 2007 arrest was his fourth on the same charge, so he was charged with a felony that had a maximum sentence of four years. Missouri prosecutors originally offered Frye two deals, including pleading to a misdemeanor with a sentence recommendation of three months. With no knowledge of that offer, Frye ended up entering a guilty plea and was given three years in prison.

Cooper was arrested after shooting a woman in the buttocks, hip and abdomen in 2003. He was charged with assault with intent to murder and three other charges, but was offered a deal where prosecutors would drop two of the charges and recommend a maximum of 85 months in prison. But Cooper’s lawyer told him to reject the deal, saying incorrectly that the prosecutors couldn’t prove murder because he had shot the woman below the waist. He did, and was sentenced to a maximum of 30 years in prison.

Kennedy said Michigan prosecutors should offer Cooper his plea bargain for a prison term of around seven years again, with a lower court judge ruling on whether to vacate some or all of his convictions, or do nothing about his 15-to-30 year sentence.

That concerned Justice Samuel Alito, a former U.S. attorney in New Jersey.

“In my view, requiring the prosecution to renew an old plea offer would represent an abuse of discretion in at least two circumstances: first, when important new information about a defendant’s culpability comes to light after the offer was rejected, and second, when the rejection of the plea offer results in a substantial expenditure of scarce prosecutorial or judicial resources,” said Alito, who wrote a separate dissent in that case.

Scalia was joined in full or in part in both dissents by Chief Justice John Roberts and Justice Clarence Thomas. Alito joined Scalia’s dissent in the Frye case. Scalia noted that prosecutors were being punished by having their cases go back to court, when it was the defense lawyers who made the errors.

“In today’s cases, the court’s zeal to bring perfection to everything requires the reversal of perfectly valid, eminently just convictions,” Scalia said. “It is not wise; it is not right.”

The cases are Missouri v. Frye, 10-444 and Lafler v. Cooper, 10-209.

via The New York Times

SADO Spotlight on Neil Rockind

Neil S. Rockind

Please tell us about your background, where you practice, and how long you have been a criminal defense lawyer.

I started my career as an assistant prosecu-tor in the Oakland County Prosecutor’s Office.  (As Gerry Spence says, “everyone has sinned at least once in his life”).  Even while I was a prosecutor, I admired the criminal defense lawyers that I went up against in court.  So in 1997, I left the prosecutors office, began my career as a criminal defense lawyer and have never looked back.  My practice takes me to different parts of the state and routinely, into federal court.  I have been recognized as a Top Lawyer (DBusiness Magazine), have been named a Super Lawyer and have even been recommended by the Marijuana Policy Project for marijuana and medical marijuana cases.

You have recently had some significant successes in the area of Medical Marijuana defense, including a successful motion to have a judge disqualified, and a dismissal in Oakland County.  Please tell us something about the key issues, and how the cases were resolved.

Thank you.  We’ve worked hard in defending medical marijuana cases and the successes reflect that effort.  The Clinical Relief Case, i.e., the Fern-dale Dispensary Case, was one in which the police forged patient cards in order to pass themselves off as legitimate medical marijuana patients and gain entrance into our client’s clinic.  Our clients lacked criminal intent.  In fact, they were operating with the consent of the City of Ferndale and had even been given a Certificate of Occupancy by Ferndale to operate as a Medical Marijuana business.  We argued that our clients interpretation of the MMMA was reasonable (at least one Circuit Court judge in another county agreed with it) and because of that, we believed that they should not be prosecuted for simply interpreting a “yet to be defined” law.

We have prevailed in several other medical marijuana cases as well.  We managed to convince a Judge in Troy that, due to the Medical Marijuana Act, marijuana can no longer be classified as a Schedule 1 substance.  That was a great ruling.  However, I take particular pleasure in having obtained the disqualification of Judge Marc Somers (in Dearborn’s 19th District Court) in a medical marijuana case.  Previously he had ruled that the MMMA was unconstitutional.  Coupled with his reference to marijuana as “Satan’s Weed”, and his belief that marijuana users have “blood on their hands”, i.e., are responsible for cartel murders in Mexico, I believed that he was unfit to preside over my client’s medical marijuana case.  The Chief Judge in Dearborn agreed.  I must say that victory was particularly satisfying.

What trends do you see in the criminal law in Michigan?  What issues are developing?

I cannot speak to trends in the “criminal law.”  That topic is simply too broad.  The criminal law is much more diverse and complicated than say, 20 years ago.  The most disturbing “trend,” if you will, that I see is the frequency with which some judges and administrators view criminal cases as matters to be “moved quickly” and “completed by a certain time period,” rather than treating the cases as matters that can destroy someone’s life.  For example, these judges refuse to grant 14 day waivers of preliminary examinations or they set “concrete” jury trial dates without regard to whether the lawyers are adequately prepared.  More lawyers need to stick up to these practices, in my opinion.

What advice do you have for other criminal defense lawyers?

I box at 6:00 a.m. at a boxing gym.  One of the lessons I’ve learned in boxing is to keep your guard up and never quit.  The fighter with the most energy, stamina and determination can win any fight.  As criminal defense lawyers, we fight a giant (the government).  But we can win … you’ve just got to keep fighting and working.

Do you have any special advice for new lawyers?

The best advice I ever received … in your spare time, go to court, find a trial to observe and watch the lawyers.  Law school doesn’t train us to do much in a courtroom.  Go to court and watch some skilled lawyers fight for their clients.  Imitation is the sincerest form of flattery and it may help accelerate your learning curve.

Mr. Rockind’s website:  http://www.rockindlaw.com/.

by Neil Leithauser
Associate Editor

Exam adjourned in pot-burning case in Hamburg

A preliminary examination for a Hamburg Township man accused of having “pounds” of marijuana, which he allegedly tried to burn when cops came to his home, was adjourned Monday.

Judge Carol Sue Reader began hearing testimony in the prosecutor’s case against Dennis Keith Towne, 57, who is charged with delivery or manufacture of a controlled substance. The hearing, which will determine if there is probable cause to send the case to trial, is tentatively continued to March 30.

Thus far, a Michigan State Police trooper with the Brighton post testified that officers went to Towne’s home in the 6500 block of Cunningham Drive in December because they were looking for the defendant’s son, who was wanted on an unrelated 10-count felony complaint.

Trooper Adam Henderson said the Towne home was “completely dark” and appeared to have no power, although the moon provided some lighting on the cold Dec. 15 evening.

Henderson said he began to see “an excessive amount of smoke coming from the chimney” as officers staked out the home after learning from Towne that his son was not there. He said the smell of “freshly burned marijuana” began to fill the air.

“It was not your typical toss-a-log-on-the-fire smoke,” the trooper explained, noting that the fire was so intense that it lit the room “like there were bright lights” in the home and sparks were coming from the chimney.

“It was getting brighter and brighter,” Henderson said, adding, “I observed Mr. Towne, literally, shoving handfuls of marijuana into a fire.”

Henderson and another trooper tried to kick in the door but were unable to gain immediate access to the home. He said he broke a window with his baton and that’s when Towne opened the door.

Henderson said officers later found an 18-gallon plastic tote about one-quarter full of “processed marijuana” as well as 50-100 live plants in the basement. He said marijuana — from seeds to full grown plants — were found throughout the house, including in a toilet.

“It looked like someone went through the house with a salt shaker and dumped marijuana,” the trooper said.

Assistant Prosecutor Daniel Rose indicated that there were 75 marijuana plants seized along with 41 bags of marijuana and marijuana suckers that amounted to “pounds” of the illegal drug.

“He had a lifetime supply of marijuana,” Rose told the judge as he and the defense attorney discussed the use of medical marijuana defense at the District Court stage of the proceedings.

On cross-examination, defense attorney Neil Rockind asked Henderson questions that related to whether the officer’s actions were restricted to the curtilage of the defendant’s home. The questioning stopped shortly after 5 p.m. and court recessed for the day.

Curtilage refers to the area surrounding and associated with the domicile. Courts have disallowed evidence when it finds an officer failed to restrict his or her movements to the curtilage of a defendant’s home.

via Livingston Daily

Michigan To Print More Medical Marijuana Cards

LANSING, Mich. (AP) — The state of Michigan has ordered a new printer that will allow it to produce 4,000 medical marijuana cards a day.

Rae Ramsdell, who oversees the program, says 40,000 people who don’t have cards have been given a tamper-proof letter to show they’re qualified to use marijuana for medicinal purposes.

More than 131,000 people have been approved for marijuana. Thousands more serve as caregivers, who are allowed to grow marijuana for up to five people.
Ramsdell says the new printer should be ready by mid-March at a cost of “six figures.” She says the medical marijuana office started with three employees in 2009 and now has eight full-timers and 15 temps. Ramsdell says the office gets at least 600 pieces of mail a day, including new applications and renewals.

via WILX