Trying to understand why prosecutors in St. Clair County, Michigan, suddenly decided to drop their case against Ginnifer Hency, a medical marijuana patient and caregiver, and return the property that police seized from her home, I obtained several court documents from Shyler Engel, her appellate attorney.
The documents clarify why prosecutors decided to charge her in the first place, why a judge dismissed the charges, and why the prosecutors appealed that decision. But their avowed reason for withdrawing that appeal—a recent ruling by the Michigan Supreme Court interpreting the Michigan Medical Marihuana Act (MMMA)—makes even less sense in light of these details.
Hency was caught up in a raid of the DNA Wellness Center in Kimball Township by the St. Clair County Drug Task Force on July 28, 2014. Police found six ounces of marijuana in her backpack, which was well within the 15-ounce legal limit for her and the five patients she assists.
But a sheriff’s deputy reported that Hency told him she planned to swap the marijuana with another registered caregiver, Dale Shattuck, for the same amount of a different strain that was more suitable for her patients. The alleged plan for a swap that never actually happened was the basis for accusing her of possession with intent to deliver, since the MMMA does not explicity allow caregiver-to-caregiver transfers of marijuana.
On May 18, after four days of hearings, District Judge David Nicholson dismissed the charges against Hency, concluding that any violation of the law was “de minimis”:
There is sufficient evidence to believe that [Hency] intended to deliver the six ounces of marijuana she had in her backpack…in exchange for a like amount to be delivered to her by Dale Shattuck. There is no evidence that would be admissible against Dale Shattuck that he knew of Hency’s intentions or that he participated in any plan to make such a swap. The court is of the opinion that the violation is de minimis. The sequence would be as follows: Two people each have legal possession of six ounces of marijuana. They trade those amounts so that each now possesses six ounces of marijuana, an amount that would be legally held based on caregiver cards each held and the patient cards assigned to each of them. While arguably the act of exchanging the amounts held would constitute a delivery, the court is of the opinion that under these conditions the mutual delivery was not a change in position such as there would be in an exchange of an amount of marijuana for money or any other tangible asset.
On June 19, St. Clair County Senior Assistant Prosecuting Attorney Amy Stover appealed Nicholson’s decision, arguing that it was an “abuse of discretion.” Engel and Michael Komorn, Hency’s trial lawyer, responded on July 7, arguing that Stover was applying the wrong standard of review. Nicholson’s decision should be reversed only if it was “clear error,” they said, and it wasn’t:
The record reflects that [Hency], if she had even made the statement regarding the exchange, was going to exchange the strain of marijuana for a different strain of marijuana for her registered qualifying patients. Accordingly, she was engaged in medical use under the Act, and her actions were protected. Should the MMMA not specifically permit a delivery or transfer to a non registered and qualifying patient, but it was for the benefit of the registered qualifying patients, then that violation of the MMMA is de minimis.
In her August 4 motion to withdraw her office’s appeal, Stover cited the Michigan Supreme Court’s July 27 decision in People v. Hartwick and People v. Tuttle. But it’s not clear how that decision affected the prosecution’s chances of winning its appeal or prevailing at trial. The ruling dealt with three main issues: a patient/caregiver’s right to a pretrial immunity hearing, the impact of prohibited conduct on the legal status of marijuana-related activities that would otherwise be permitted, and the affirmative defense that is available to unregistered as well as registered patients and caregivers. But the court did not change the criteria for immunity, which are spelled out in the MMMA, and it did not address the legality of caregiver-to-caregiver transfers.
Engel summarizes the sequence of events this way:
District Court judge offers cryptic opinion throwing out Hency’s case. Prosecutor appeals.
I write a reply. Prosecutor doesn’t respond to my brief on appeal. Prosecutor dismisses case first court date after my brief is filed. Between the time my reply is filed and the first date on appeal, Michigan Supreme Court publishes Hartwick/Tuttle. Prosecutor says it compels dismissal. No way.
Stover said her office was reassessing about 20 cases in light of Hartwick/Tuttle. If Hency’s case is any indication, the connection between the reassessment and the Michigan Supreme Court’s decision is pretty tenuous. It seems more likely that the negative publicity surrounding profit-driven raids of medical marijuana patients, which has led to serious talk of forfeiture reform in the state legislature, has encouraged local officials to de-escalate their crackdown.
In 2010, Michigan State Police returned the medical marijuana they seized from our client during a traffic stop. The cannabis was returned after we obtained a dismissal of all charges in a court order directing the arresting agency to return the medical marijuana to our client.
Ginnifer Hency says that police raid led investigators to seize a couple of guns, a small amount of cash and cell phones with a lot of medical marijuana.
And also something very personal.
“My medicine for my patients, why a ladder, why my vibrator, I don’t know either,” Hency said during a Michigan House Committee meeting.
And that last part is creating quite the buzz – a story now gone viral and raising questions about Michigan’s civil asset forfeiture laws
“They’ve had my stuff for 10 months now,” she said.
Ginnifer and her husband Dean Hency say it all happened when their home was raided last July. They both are licensed medical marijuana patients and caregivers. They claim to be targeted by St. Clair County’s drug task force.
It began when Ginnifer says she walked into a medical marijuana licensing facility as it was being raided.
“They asked me how much medicine I had in my backpack,” she said. “I said six ounces then they said to get a warrant for our house.”
The havoc they wreaked,” Dean said, “they just threw stuff around. Just dirt dumped all over the place.”
“We were in complete compliance with the Michigan Medical Marijuana Act and they destroyed my house,” Ginnifer said.
But St. Clair County Sheriff Tim Donnellon says they were not, and added that officers did not take her vibrator and would never have a reason to.
He says aside from that allegation, the task force’s actions were justified and par for the course.
Even so, a judge dismissed the criminal charge of possession with intent to distribute against Ginnifer Hency two weeks ago.
But here’s what she says happened when she went to the prosecutor’s office to get her property back.
“Lisa Wiznowski who is the assistant prosecuting attorney said ‘I can still beat you in civil court, I can still take your stuff.'”
Michael Komorn is the Hencys’ lawyer.
“This is bully tactics,” he said. “We have your property we couldn’t get any charges to stick, we’re just going to keep it. drag it out.
“Here’s a person who they took her property and they couldn’t even make the charges stick let alone get a conviction. So if there’s an example of why there needs to be reform it’s this.”
“They left my (equipment) I used to grow ‘drugs’ – they left that,” Hency said when she testified. “Now that is what the state forfeiture laws are made for.”
The St. Clair County Prosecutor’s Office has about a week to appeal a visiting judge’s decision to drop those charges against Ginnifer Hency.
That civil case regarding her property still pending.
The sheriff, Tim Donnellon, says the drug taskforce has been in place for 30 years and has a 99 percent conviction rate. He says there was nothing unusual about this case except for Hency’s testimony about her vibrator which he claims is false.
A Southfield lawyer alleges the Michigan State Police crime labs have “falsified lab reports on marijuana statewide” and he’s asking a judge to dismisses charges lodged against a client.
Michael Komorn, who also represents defendants in Livingston County, said his office’s discovery stems from Ottawa County resident Maxwell Lorincz, who was initially charged with a misdemeanor possession of marijuana. The Ottawa County prosecutor’s office increased the charge to a felony when Lorincz declined to plead guilty, Komorn said.
“The extensive emails and documents we received through the Freedom of Information Act show the prosecution are relying on the lab to report these substances so that they can escalate these crimes from misdemeanors to felonies,” the defense attorney said.
Tiffany Brown, a spokeswoman with the state police, said the crime lab’s role is to “determine whether marijuana or THC are present in a sample.
” The department’s policy changed to include the statement “origin unknown,” she noted, “when it is not possible to determine if THC originates from a (marijuana) plant or synthetic means.”
“This change makes it clear that the source of the THC should not be assumed from the lab results,” Brown said in an email response to an inquiry for comment. “The ultimate decision on what to charge an individual with is determined by the prosecutor.”
A message to Karen Miedema, an assistant prosecutor with Ottawa County, was not immediately returned Wednesday.
As a result, Komorn is asking a judge to dismiss the case against Lorincz and to hold the parties, including the prosecutor, in contempt of court. The hearing was scheduled for next week in Ottawa County Circuit Court in Grand Haven; however, it was put on hold until December following a conference between prosecutors, the defense and the judge.
Komorn’s client was first charged with misdemeanor possession of marijuana, but the charge was increased to a felony alleging he had synthetic THC.
The charge resulted when an officer reporting seeing a small amount of hash oil in Lorincz’s Spring Lake home when he responded to his 911 call for medical assistance for his wife in September 2014.
Komorn says the state police’s policy change began in 2013 when Ken Stecker of the Prosecuting Attorneys Association of Michigan and state attorney general’s office “instructed the lab” it could report marijuana edibles and oils as Schedule 1 synthetic THC, which is a felony.
“This was counter to both law and science as plant-based edibles and oils are categorized as marijuana under Michigan law and their possession punished as a misdemeanor,” Komorn said.
Komorn’s office used FOIA to obtain numerous emails regarding the issue. Among those emails was one from Kyle Hoskins, a state police crime lab supervisor who said examiners needed to see plant material because they would have no idea how it was produced unless they watched its production.
He sought Stecker’s opinion, who reportedly responded: “That is my opinion, THC is a Schedule 1 drug regardless of where it comes from. I hope that helps. Ken.”
Marijuana is a Schedule 2 drug under state law.
Among the emails Komorn received were some from state police crime lab workers raising concern about the way they were told to report THC cases.
In one email, a forensic scientist notes that to “place the actual compound THC in Schedule 1 (drugs), the criteria of ‘synthetic equivalent’ should be met.”
“Since we really can’t do this, there are many of us who feel that these new evidentiary materials containing THC without any botanical morphology characteristics … should be identified as resinous extracts of marijuana,” the forensic scientist wrote.
The writer goes on to note that misdemeanors can jump to a felony charge and the topic is being brought up “because there seemed to be some concern about uniformity in making these calls. Further, it is highly doubtful that any of these (medical marijuana) products we are seeing have THC that was synthesized.”
Komorn’s office said the “statewide lab scandal” comes on the heels of a report that statewide marijuana arrests are on the rise.
Between 2008 — when Michigan passed the Medical Marijuana Act — and 2014, arrests for marijuana possession or use increased 17 percent statewide while arrests for all crimes dropped by 15 percent, according to statistics.
Charmie Gholson, founder of Michigan Moms United, said Komorn’s case clearly shows that Michigan’s top prosecutors and law enforcers “conspired to commit crimes against Michigan families.”
“There’s a strategy,” she said. “Someone at the top has sent these soldiers to people’s homes. … This proves the top law enforcement has conspired to target families.”
