Court of Appeals sends medical marijuana case back for hearing

The criminal case against a Lake Orion woman who used to work at a Ferndale medical marijuana dispensary has been sent back to Oakland County Circuit Court for a continuation of an evidentiary hearing..

Barbara Agro was 70 years old when Clinical Relief — a dispensary where Agro was employed as a receptionist — was raided in August 2010. Investigators also searched the home that Agro shared with her husband, Sal Agro, who died of a heart attack about a week after the Aug. 25, 2010 raid.

Barbara Agro ultimately was convicted of one count of delivery/manufacture of marijuana and was sentenced to 90 days of probation, along with 20 hours of community service.

Agro appealed the conviction, arguing that she should have been allowed to disclose the fact that she was a medical marijuana patient to the jury.

“(Agro) claimed that she and her husband were qualifying patients and caregivers, the plants were kept in an enclosed, locked facility, and she did not have more than the allowable amount of plants,” the Court of Appeals decision reads.

The trial court, Oakland County Circuit Judge Wendy Potts, ruled during a pretrial hearing that Agro failed to prove that her home, where she and her husband had 17 marijuana plants growing in the basement, was a locked facility, as the law requires.

“Because (Agro) failed to show that she was in compliance with the (Michigan Medical Marihuana Act), the trial court concluded that … (Agro) could not assert an affirmative defense,” the opinion reads.

The prosecution has conceded that the trial court’s conclusion was valid at the time but is contrary to a subsequent Supreme Court ruling on the law, which was published last year. Agro was sentenced in July 2011.

Agro argued that a new trial was warranted, while the prosecution argued that the pretrial hearing should be continued, and the Court of Appeals sided with the prosecution.

There are three paths that the case could head down as a result of the decision, as outlined in the opinion.


“If there are no material questions of fact and (Agro) establishes the elements (of the affirmative defense), then the charges shall be dismissed,” the opinion reads.

“If … there are material questions of fact, then the defense must be submitted to the jury and, in that case, defendant is entitled to a new trial.

“If there are no material questions of fact and (Agro) fails to establish the elements … then she is not entitled to assert the defense at trial and there would be no basis to vacate the defendant’s conviction.”

Agro also argued that she was not allowed to present a defense — in this case that she mistakenly believed she was complying with the law. “Ignorance of the law or a mistake of law is no defense to a criminal prosecution,” the opinion reads, citing another case. The court ruled there was no error.

The court declined to address a due process question, due to the decision to send the case back to trial court. The court did rule that it was “improper” for the prosecutor to speak about whether the case was “legally sound” during closing arguments, but ruled that jury instructions should have been sufficient to “cure the prejudicial effect” of the statements, citing a prior case.

via Oakland Press


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