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.