DETROIT (AP) >> People fired in Michigan for using medical marijuana can collect unemployment benefits after the state Supreme Court turned down appeals in two cases.
The court declined to hear appeals that could have overturned a 2014 state appeals court decision.
A brief order was released Thursday. The Michigan Chamber of Commerce and Attorney General Bill Schuette’s office had urged the state’s top court to intervene.
It’s a victory for a hospital employee and a furniture repairman who had medical marijuana cards but lost their jobs. The appeals court said there was no evidence they worked under the influence of pot or used marijuana at work.
Michigan employers still can fire workers who use marijuana, even if they have a card. That was settled by a federal court in 2011.
MIRS-Michigan Independent Source Of News and Information Friday Nov 6, 2015
Maxwell LORINCZ, of Spring Lake, says a fingerprint of oil on an empty plastic container led to his arrest on a drug charge on Sept. 24, 2014. Now, a year later, the case that might have started with a fingerprint has spurred a defense attorney to question the state’s protocol for handling some marijuana-related crimes. The attorney is also alleging that the current system allows some cases to incorrectly be heightened to felonies when they should be misdemeanors.
Lorincz says that because of what happened to him, the lives of he and his wife have been destroyed and his 6-year-old son has been in foster care for a year.
“There couldn’t have been a more terrible thing to happen in my life,” Lorincz said in an interview this week.
Lorincz’s attorney is Michael KOMORN, who specializes in medical marijuana cases. Through investigating Lorincz’s case, Komorn has called in laboratory experts and obtained internal Michigan State Police (MSP) emails between laboratory workers and an employee of the Prosecuting Attorneys Association of Michigan (PAAM).
The debate focuses on THC, the chemical responsible for many of marijuana’s psychological effects.
The documents show an internal debate between MSP employees about how cases involving THC extracts that contain no visible marijuana plant matter should be handled. And they show a PAAM employee providing guidance to MSP workers on the subject.
The findings, Lorincz’s legal team alleges, show that law enforcement authorities have made a concerted effort to “bend the science.”
The way the science has been bent, the team says, allows THC oils or solids where no plant matter is visible to be considered synthetic, meaning they could bring a felony charge under Michigan law.
Normally, if the THC clearly came from a plant, it would bring a misdemeanor charge.
The allegation is that in some instances where law enforcement isn’t certain whether the THC came from a plant, authorities have been able to use the MSP protocol, which some outside forces had input on, to go ahead and pursue the synthetic felony crime. That’s what Komorn says happened to Lorincz.
But both the MSP and the Prosecuting Attorneys Association of Michigan (PAAM) deny any concerted effort to heighten criminal penalties has taken place.
Shanon BANNER, spokesperson for MSP, said in a statement that the department “wholly refutes” the claims being made by Komorn.
“Turning an internal debate among colleagues into a multi-level conspiracy is a diversionary tactic used to distract from the facts of the case,” Banner said. “The bottom line is the professionals of MSP-FSD (Forensic Science Division) would never allow politics to trump science.”
Some medical marijuana users prefer to consume marijuana in oil form or in solid foods, involving THC extracts. However, the items aren’t considered usable drugs under the Michigan Medical Marijuana Act.
The question that Komorn is focused on is how the MSP crime lab and prosecutors decide whether the THC in those forms is synthetic or from a plant.
In some cases, no plant matter is visible, and, according to emails obtained by Komorn, there’s been a disagreement among MSP lab workers about how to define the drugs in reports in those instances.
In an October court filing, Kormon pointed to an email from Ken STECKER, an employee of PAAM. Stecker advised MSP workers, “That in my opinion, THC is a schedule 1 drug regardless of where it comes from.”
However, one MSP worker, Bradley CHOATE, wrote in 2014 that simply saying that THC was found “without any other statement” would lead a prosecutor to the synthetic portion of state law because that’s the place where THC is listed in state law.
“This could lead to the wrong charge of possession of synthetic THC and the ultimate wrongful conviction of an individual,” Choate wrote. “For the laboratory to contribute to this possible miscarriage of justice would be a huge black eye for the division and the department.”
Eventually, after the internal debate, the department settled on the idea of listing the origin as unknown in situations where no plant matter was visible and the origin couldn’t proven.
That has essentially left the decision up to prosecutors to draw their own conclusions, according to lawyers.
“The new reporting procedures implemented in 2013 ensure that MSP-FSP is only reporting what it can scientifically prove,” Banner said in a statement.
According to a statement from Michael WENDLING, president of PAAM and St. Clair County’s prosecutor, PAAM has already met with staff from the Senate Judiciary Committee to request changes to a medical marijuana bill in the Legislature.
“The change requested by PAAM would decrease the penalty for synthetic marijuana to equal that for plant marijuana,” the statement said. “This request was made prior to recent press coverage on this issue.”
That change would likely settle the dispute.
Wendling also stated that PAAM didn’t direct MSP to change its policy to increase potential charges, as some have alleged.
On why Stecker was emailing MSP workers about the issue in the first place, Wendling said Stecker, a marijuana expert, was simply responding to requests about his opinion.
“It is common practice to consult with prosecuting attorneys to ensure compliance with state law,” Banner said.
Stecker did email from what was apparently an Attorney General (AG)-based email address, according to the documents. But according to the AG’s office, he’s never worked there.
Questions about why he had the email address were referred by the AG’s office to the Department of Technology, Management and Budget.
Komorn himself has questioned why Stecker advised MSP on the subject.
“I’m a lawyer. He’s lawyer. I want to talk to the lab. I want to tell them how I want the results reported,” Komorn said.
As the debate continues, other prosecutors have taken note of what’s happening with the ongoing Lorincz case.
Chris BECKER, chief assistant prosecutor in Kent County, said his county has decided to treat oil cases where there is no plant material visible as plant marijuana, not synthetic.
Counties that see it differently aren’t necessarily doing anything wrong, Becker said.
“There’s different ways to interpret it,” he said. “Different counties can interpret it differently.”
As for the allegation that PAAM was working with MSP to change the policy, Becker said nothing could be further from the truth.
“The state lab is its own entity,” he said. “There is no grand conspiracy.”
GRAND RAPIDS, Mich. – First on FOX 17, we broke serious allegations that state police crime labs are being told to falsely report marijuana test results. This is resulting in misleading lab reports that an attorney claims creates felonies without real proof.
Attorney Michael Komorn believes a recent policy change in the way Michigan State Police forensic science crime labs report marijuana may have led to years of wrongful convictions.
Komorn called this a “perversion of science,” and “crime labs turned crime factories:” accusations that politics are trumping forensic science by escalating misdemeanor marijuana charges into felonies without proof.
It’s torn one Spring Lake family to pieces: a 6-year-old son taken away from his parents 14 months ago, in part, because of a disputed felony.
Since September of last year, Max Lorincz has been cheated of carefree moments with his son, Dante. Afternoons of uninterrupted fun have morphed into supervised visits.
“The doctor is telling me one thing, the judge is telling me another,” said Lorincz. A card-carrying medical marijuana patient, Lorincz is caught between doctor’s orders and a judge.
For years he has been ingesting marijuana oils for serious stomach issues and pain after a debilitating back injury. Last year, during an unrelated emergency, a cop walked into his home finding a “smudge” of butane hash oil.
His medicine got him in trouble, and he was charged with a misdemeanor for having marijuana. But he has a medical marijuana card, which should protect him for having what’s called “usable marijuana,” under the Michigan Medical Marijuana Act.
So the charges could have been dropped, but that is not what happened.
The Ottawa County Prosecutor charged Lorincz for having a schedule 1 synthetic drug; that is no longer a misdemeanor, it is a two-year felony. Komorn calls it a “bogus crime.”
“When you have a laboratory that is looking at a substance and reporting it in a way that makes it a schedule 1 instead of the marijuana they know it is, it’s creating a crime,” said Komorn.
What Lorincz had is a marijuana extract: butane hash oil, made by filtering butane through the plant, extracting the cannabinoids, or chemicals unique to marijuana, namely THC, the plant’s most psychoactive ingredient.
The certificate of analysis of Lorincz’s MSP crime lab report includes the phrase, “origin unknown.”
“In this particular case a quantitation was not done, and therefore I could not conclude whether or not it was hemp, you’re correct,” said William Ruhf, the MSP forensic scientist who completed Lorincz’s lap report.
Ruhf wrote this lab report, and then testified in April that he could not determine if this hash oil was natural or man-made. Again, this is the difference between a misdemeanor and a two-year felony.
Jay Siegel, a chemist with a PhD and the former MSU Forensic Science Director, disagrees. “Yes, this is a preparation of marijuana. It was extracted from marijuana,” Siegel said. Siegel told FOX 17 Lorincz’s sample, based upon the lab report, is natural marijuana.
He pointed out in this lab report’s data several tell-tale signs of the natural plant: a brown color, and several cannabinoids, including cannabidiol, cannabinol, and THC. He said it is unreasonable to say this is man-made.
“It’s much easier to get marijuana and extract it; the syntheses are quite sophisticated,” said Siegel.
Then, why are state police forensic scientists writing “origin unknown” on reports like this?
“The substance that we’re talking about has always known and been reported as from the lab as being marijuana, they know it,” said Komorn. “The lab is being forced, compelled, the policy changed to do this a certain way, to report this as a synthetic THC.”
“They also know that by reporting it as synthetic THC, they are stating that they can prove that it came from a synthetic source, as opposed to a natural plant source. This is a lie,” said Komorn.
Komorn said this is the result of a recent MSP Forensic Science policy change, which is not based in science. He obtained months of emails between 2013 and the present through the Freedom of Information Act.
They expose a lengthy debate among MSP forensic scientists, directors, and prosecutors associated with the Attorney General’s office, all regarding a specific procedural change for marijuana lab reports after 2013.
“The law enforcement community is focused on criminalizing medical marijuana patients, creating crimes in a crime laboratory that gives them no integrity,” said Komorn.
First, a crime lab technical leader wrote, “although THC found in foodstuffs and oils is most likely a marijuana extract… our scientists cannot determine if it’s marijuana without seeing any plant material.”
But, Siegel and Komorn already said this is not true.
Emails show after meeting with the Prosecuting Attorneys Association of Michigan (PAAM), a lab leader turns one prosecutor’s opinion into policy.
“That is my opinion, THC is a schedule 1 drug regardless of where it comes from,” Ken Stecker, a prosecutor who works with the Prosecuting Attorneys Association of Michigan (PAAM), which is affiliated with the Attorney General’s office, wrote in an email.
But, according to the law, where THC comes from does make a difference.
“The most damning evidence is that their own forensic scientists calls them out that they can’t do it based on forensic science, and yet they do it anyways,” Kormon said.
MSP forensic scientist Scott Penabaker wrote his concern to colleagues: “By going out on that limb and calling it THC, you jump from a misdemeanor to a felony.” He goes onto write, it is “highly doubtful any of these medical marijuana products we’re testing are synthetic.. That’s completely impractical.”
Then, controlled substances unit supervisor Bradley Choate wrote his heated opposition, including that identifying THC gives scientists two choices: one, marijuana possession as a misdemeanor; or two, synthetic THC possession, a felony; he wrote there is not a third choice.
But if lab reporting goes on like this, Choate wrote: “This could lead to the wrong charge of possession of synthetic THC and the ultimate wrongful conviction of an individual. For the lab to continue this possible miscarriage of justice would be a huge black eye for the division and the department.”
“You don’t just call up the Attorney General’s office and ask them what they think because they’re not scientists,” said Former Director of MSP Forensic Science John Collins. Collins served as the director of MSP Forensic Science from 2010 until he said he surprised the department with his resignation in 2012 in part, because of these issues.
“In my experience, it was just a nonstop political game,” said Collins. Collins reviewed documents in Lorincz’s case, including another email chain from Choate to the department citing their professional training materials.
Choate wrote that their conclusions are based on the evidence, not on political pressure, or other outside influences. Then he wrote, “whether or not an individual has a medical marijuana card is immaterial to how we report out our results.”
This was in response to another email, from MSP lab director Jim Pierson who wrote that lab tests from THC waxes and oils are coming back as marijuana, so they cannot arrest people. Then Pierson wrote, “Is there a way to get this changed? Our prosecutors are willing to argue that one speck of marijuana does not turn the larger quantity of oil/wax into marijuana.”
“Any time that scientists, or administrators of scientific operations, if they would intentionally try to create ambiguity to create a political advantage is beyond unacceptable,” said Collins.
When FOX 17 reviewed some emails obtained through FOIA with Collins he said, “That doesn’t surprise me.”
Michigan State Police Public Affairs and the Prosecuting Attorneys Association of Michigan’s president responded to FOX 17, deferring to each other.
State police public affairs said, it is up to the prosecutors to charge crimes, and lab policy was changed to add the statement “origin unknown” when it’s not possible to determine if THC comes for marijuana or is synthetic.”
Then the PAAM president wrote, it is up to the crime labs to report science. Quote, “any accusation that the lab and PAAM are directing lab personnel to report crimes without evidence is untrue.”
Komorn doesn’t buy it. “There is some wrongdoing going on, that they know that it’s wrong, and they continue to do it otherwise,” said Komorn.
And Siegel, who is also a former professor of many of these MSP employees, urges them to uphold the integrity of science. “What I would say to these people is get yourselves together,” said Siegel. “Get them all together to agree that this is bad science.”
Meanwhile, Lorincz is only allowed to visit Dante twice per week. He said he will not stop fighting for custody, and for the right to use the medicine he says does not hurt his body like pharmaceuticals.
“If nobody stands up for this and it just keeps going the way it is, how many more people are going to get thrown under the bus just for using their prescribed medicine? It’s just ridiculous,” said Lorincz.
Thursday evening FOX 17 caught up with Attorney General Bill Schuette at another event. When FOX 17 asked specifically about these emails that suggest prosecutors within his office are manipulating the way crime labs are reporting marijuana, and what his involvement is, Schuette answered:
“We’re in the middle of an investigation so I really don’t, I can’t comment one way or the other. But, we have an outstanding group of people that work very hard to make sure we enforce the law and defend the Constitution of Michigan.”
Schuette also told FOX 17 his office is “always very open, very transparent, and we have a great group of lawyers who work very hard for the citizens of Michigan.”
An evidentiary hearing for Lorincz’s case was originally set for Nov. 5, but it was adjourned. The Ottawa County Prosecutor filed a motion suppressing the defense’s subpoenas for 13 people, many of whom are quoted from the emails in question.
The defense told FOX 17 they plan to re-file motions and set another hearing likely in December. At this point, it may be up to another court to address the underlying allegations outside of Lorincz’s case.
Meanwhile, there is pending marijuana legislation statewide that would expand the definition of “usable marijuana,” according to the Michigan Medical Marijuana Act, to include concentrates and extracts; for example, House Bill 4210. This would explicitly protect people like Lorincz from charges.
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.For the second time, the case against a Lansing man involving the state’s medical marijuana law has been dismissed.
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.”
Contact Livingston Daily justice reporter Lisa Roose-Church at 517-552-2846 or lrchurch@gannett.com. Follow her on Twitter @LisaRooseChurch.
A Michigan medical-marijuana patient claims in court papers that state police crime labs are bending to pressure from prosecutors in analyzing marijuana samples, leading to harsher punishments.
Maxwell Lorincz, 35, was originally charged with a possessions misdemeanor for a small amount of marijuana oil after a Sept. 2014 arrest during an emergency call to his home, according to court papers. He contested the charge, due to his status as a legal medical-marijuana patient. It was dropped in January. But a month later he was charged again – and due to a laboratory finding that the oil could be synthetic THC, it was increased to a felony charge with potential prison time under Michigan law.
Lorincz’s attorney Michael Komorn alleges the lab engaged in perjury, evidence tampering, and even “rampant illegality” in considering the sample synthetic, due to pressure from prosecutors, they contend in the latest court papers filed Oct. 24.
“The Crime Lab was transformed into a Crime Factory which had the direct effect of stripping, in this case Mr. Lorincz, and other patients or caregivers statewide the State authorization to the entitlement to immunity, from arrest, prosecution, or any penalty associated with the medical use of (marijuana),” contends Komorn in the latest motion.
The latest filings, obtained by Forensic Magazine, include emails between lab staff, produced by a Freedom of Information Act request. The emails show that the scientists Michigan State Police Crime Lab found the hash oil was “Schedule I THC” from “origin unknown” – mostly because the analysts contend it showed no visible plant material. Prosecutors then brought the felony charge, based on the finding the THC could be synthetic.
However, the defense attorneys argue that there were multiple other naturally-occurring cannabinoids in the sample which are not psychoactive – and would be pointless to synthesize.
In one of the internal emails, a forensic scientist wrote to his colleagues at the lab that the origin “could not be determined,” and outlined some of the policy repercussions.
“Also, by going out on that limb and calling it THC, you now jump from a misdemeanor to a felony charge,” wrote the analyst. “We’re bringing this up because there seemed to be some concern about uniformity in making these calls.
“Further, it is highly doubtful that any of these Med. Mari. (sp) products we are seeing have THC that was synthesized,” the analyst added. “This would be completely impractical. We are most likely seeing naturally occurring THC extracted from the plant!”
The Michigan Attorney General’s Office and the Ottawa County Prosecutor’s Office did not return calls from Forensic Magazine.
“Any accusation that the Lab and PAAM are directing lab personnel to report crimes without evidence is untrue,” Michael Wendling, the Association’s President reportedly said in a prepared statement.
