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Friday, January 25, 2013
By Michael Nichols
Categories: Medical Marijuana
The Michigan Court of Appeals just released an opinion, People v Argo, that once again illustrates that defendant’s charged with violating the Michigan Medical Marihuana Act (MMMA) are entitled to an evidentiary hearing to determine if they may assert a section 8 affirmative defense. The Court of Appeals also looked into whether or not the prosecutor committed prosecutorial misconduct.
SECTION 8 AFFIRMATIVE DEFENSE
A section 8 defense refers to section 8 of the MMMA which offers protection from prosecution to two classes of patients. The first is those patients who have received a valid MMMA registry card and acted outside of the strict section 4 requirements (i.e. 2.5 ounces, 12 plants, locked and enclosed facility). The second is for those patients who have do not have a registry card but received a physician’s recommendation prior to the alleged criminal activity. To assert a section 8 defense a defendant is required to provide prima facie evidence that they: 1) possessed no more medicine than reasonably necessary to provide an uninterrupted supply of medicine, 2) were using marihuana for medicinal purposes and 3) had received a physician’s recommendation to use marihuana to treat a debilitating or serious medical condition and that the recommendation was part of a bona fide patient-physician relationship.
The defendant in People v Argo, Barbara Agro, was a MMMA patient who had received a valid registry card. As a MMMA card holder, Ms. Argo filed a motion to dismiss under section 4 of the MMMA. The trial court decided that section 4 of the MMMA did not provide immunity to Ms. Argo because her plants were not kept in an enclosed and locked facility. The trial court did not hold an evidentiary hearing to determine if Ms. Argo could assert a section 8 defense. A trial was held and Ms. Argo was convicted of manufacturing marihuana and sentenced to 90 days probation.
Ms. Argo appealed and asked the court of appeals to determine if the trial court erred by not holding an evidentiary hearing to determine the applicability of a section 8 defense. The Court of Appeals ruled that the trial court was required to hold an evidentiary hearing to determine if Ms. Agro could assert a section 8 defense. This was based upon the recent Michigan Supreme Court case People v Kolanek, which held that even those patients who act outside of the section 4 requirements can assert a section 8 defense if they provide prima facie evidence of the section 8 requirements. The case was therefore remanded back to the trial court so that a section 8 evidentiary hearing could be held.
PROSECUTORIAL MISCONDUCT
The Court of Appeals held that the prosecutor’s comments although improper were not prosecutorial misconduct. Apparently the prosecuting attorney made remarks during jury selection and closing arguments that insinuated that the trial court believed the charges to be “legally sound” and that if the conduct wasn’t illegal the case wouldn’t be before the jury.
The Court of appeals stated that the test for prosecutorial misconduct is whether or not it prevented the defendant from receiving a fair and impartial trial. In this case the Court of Appeals held that the Ms. Argo had received a fair and impartial trial because the Judge had issued a curative jury instruction which stated that “if you believe I have an opinion about how you should decide this case, you must pay no attention to that opinion.” The Court of Appeals referenced People v Unger which stated that “curative instructions are sufficient to cure the prejudicial effect of most inappropriate prosecutorial statements”.
“I have a hard time seeing the prosecutor’s comments as anything but prosecutorial misconduct” says attorney Joshua M. Covert. Covert continues “I don’t see how Ms. Argo received a fair and impartial trial when some of the comments were said during jury selection and certainly affected the jury selection process.” Covert adds, “I don’t believe that Unger is grounded in reality; a judge’s instructions to a jury are not magical and instructions to the jury cannot unring a bell that has been rung. Jurors are human and the human mind is not like a computer where you can simply delete information.”
If you have been charged with violating the MMMA call an attorney who understands the complexity of the MMMA and stay current on the ever changing MMMA landscape. Call the Nichols Law Firm at (517)-432-9000.