Michigan Creates 'Bogus Crimes' by Conflating Cannabis Extracts With Synthetic THC
Defense attorneys say hundreds of marijuana cases may be tainted by state crime labs' "systematic evidence tampering."
On a Wednesday evening in September 2014, Max Lorincz called 911 after his wife, Erica Chittenden, fell unconscious on the kitchen floor of their house in Crockery Township, Michigan, apparently after overdosing on prescription drugs. Ottawa County Sheriff's Deputy Patrick Gedeon, who responded along with an EMT from the Crockery Township Fire Department and an ambulance from North Ottawa Community Hospital, noticed a clear plastic container on the kitchen counter containing a tarry residue that looked like butane hash oil (BHO). Lorincz explained that he had a state-issued medical marijuana card and had obtained the BHO from a dispensary in Muskegon. Gedeon removed the plastic container from the house, setting in motion a series of events that ended with Lorincz facing a felony charge and the loss of his 6-year-old son. The puzzling case revealed a change in policy at the Michigan State Police (MSP) Forensic Science Division that Lorincz's lawyers say may have tainted hundreds of convictions by falsely identifying cannabis extracts as synthetic THC.
Originally Lorincz was charged with marijuana possession, a misdemeanor punishable by up to a year in jail. He refused to plead guilty, since under the Michigan Medical Marihuana Act state-registered patients like him are allowed to have up to two and a half ounces of "usable marihuana." The tiny amount of extract that Gedeon confiscated clearly fell below that limit, even if the weight of the container was included. But instead of dropping the criminal charge against Lorincz, as state law seemed to require, Ottawa County prosecutors elevated it from marijuana possession to THC possession, a felony punishable by up to two years in prison.
The basis for that felony charge was a laboratory report from William Ruhf, an MSP forensic scientist who tested Lorincz's BHO and found that it contained "delta-1-tetrahydrocannabinol (origin unknown)." Under "weight," Ruhf typed "residue," indicating that the quantity of BHO was too small to weigh. Under "Schedule," he typed "1," indicating that the delta-1-tetrahydrocannabinol (a.k.a. delta-9-tetrahydrocannabinol or THC) was synthetic, since under Michigan law that category does not include THC in marijuana. In other words, Ruhf implicitly asserted that the THC was synthetic, thereby justifying the felony charge, even while saying that the compound's origin could not be determined.
"This is doubly fallacious," says Jeff Frazier, of counsel to Michigan attorney Michael Komorn's law firm, which represents Lorincz. "The lab knew the substance tested was plant-based and yet reported it Schedule 1 synthetic. And it reports the origin is unknown when it isn't. Both can't be true. In fact, both are false. The lab is systematically reporting felonies that don't exist."
Documents obtained by Komorn and his legal assistant Chad Carr under Michigan's Freedom of Information Act indicate that Ruhf was following a policy adopted by the MSP's Forensic Science Division in 2013 at the urging of Ken Stecker, who works for both the state Attorney General's Office and the the Prosecuting Attorneys Association of Michigan. Under the new policy, samples that do not include any visible plant matter are identified as THC rather than marijuana. "This is part of the AG's long-running crusade against patients and a plant," Frazier says. "The emails show that pressure also came from the drug task forces so as to better establish probable cause to arrest marijuana patients and forfeit their assets."
That new policy raised complaints from MSP forensic scientists who viewed it as misleading and legally unjustified. In a May 30, 2013, email message to his colleagues, Scott Penabaker, a forensic scientist at MSP's Northville Laboratory, wrote:
In order to place the actual compound THC in schedule 1, 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 (candy, butter, etc.) should be identified as resinous extracts of Marihuana.
If you are to call it "THC," at a minimum, a statement should be provided in the additional information stating that the "origin, whether naturally occurring or synthetic, could not be determined." Also, by going out on that limb and calling it THC, you now jump from a misdemeanor to a felony charge.
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. products we are seeing have THC that was synthesized. This would be completely impractical. We are most likely seeing naturally occurring THC extracted from the plant!
In February 2014, after Kyle Ann Hoskins, the Forensic Science Division's technical leader for controlled substances, announced that lab reports on "oils, food products and other substances that are not grossly plant" should list THC rather than marijuana, Bradley Choate, supervisor of the Controlled Substance Unit at the MSP's Lansing Laboratory strongly objected:
When THC is identified in a case, the analysts has two choices: 1) identify it as Marihuana which for possession is a Schedule 1 misdemeanor, 2) identify it as a synthetic equivalent which for possession is a Schedule 1 felony. There is not a third choice. The question then becomes is the THC from a natural source i.e., Marihuana or a synthetic source. The presence of other cannabinoids indicates that the substance is from a natural source….
Prosecutors rely on our reports to determine what to charge a person with. A report that states delta 1 THC without any other statement would lead a prosecutor to the synthetic portion of the law….This could lead to the wrong charge of possession of synthetic THC and the ultimate wrongful conviction of an individual. For the laboratory to contribute to this possible miscarriage of justice would be a huge black eye for the Division and the Department.
We are Forensic Scientists which means that we have to apply science to the law. It is our responsibility to team and interpret the law in regards to Controlled Substances. We do this with every report we issue since we determine whether a substance is controlled and then list what schedule it is in. We don't leave it up to the prosecutor to figure this out.
The MSP says "laboratory policy was changed to include the statement 'origin unknown' when it is not possible to determine if THC originates from a plant (marihuana) or synthetic means." But as Penabaker and Choate pointed out, a sample can be pretty confidently identified as a marijuana extract when it contains cannabinoids other than THC, such as cannabinol and cannabidiol. Experts hired by Lorincz's lawyers made the same point.
"Upon review of the data and its accompanying report, is our opinion that there is an inconsistency with the analytical results and the final report," said Evan McNabb, chief biology director at ACT Laboratories in Lansing. "Specifically, multiple cannabinoid compounds were identified in the analysis, but the final report lists only a single compound which was not found in the data. Further, the 'unknown origin' designation is dubious in our opinion as the presence of multiple natural cannabinoid compounds provides clear evidence of a plant origin." University of California at Davis chemist Donald Land agreed that "the '(origin unknown)' designation is dubious," since "the identified presence of multiple natural cannabinoid compounds provides clear evidence in support of plant origin, and clear counter evidence contrary to the hypothesis of synthetic origin."
Defenders of the new policy argue that it is consistent with People v. Carruthers, a 2013 case in which the Michigan Court of Appeals ruled that a batch of brownies made with cannabis butter did not qualify as "usable marijuana" under the Michigan Medical Marihuana Act. One implication of that dubious decision is that state-registered patients are not immune from arrrest and prosecution for possession of marijuana edibles under Section 4 of the law. It is not completely clear whether the distinction drawn in Carruthers applies to hash oil, and Michael Komorn argues that it does not, meaning their client never should have been charged. But either way, according to Carruthers, cannabis extracts and edibles qualify as marijuana, and patients who possess them still can raise a medical defense at trial under a Section 8 of the medical marijuana law, which refers to "marihuana" rather than "usable marihuana."
Ottawa County prosecutor Greg Babbitt made just that point at a July 2 hearing in which Komorn sought permission to have his client's hash oil tested by an independent laboratory. "This probably, honestly, is marihuana under Section 8," Babbitt said. "I don't believe we can contend on my part that this is not marihuana under Section 8…If they're trying to show it's marihuana under Section 8, I'll concede that, because it is." Yet the charge against Lorincz accuses him of possessing THC, which under Michigan law is defined as a "synthetic equivalent" of marijuana's active ingredient.
"Only the possession of synthetic, laboratory-designed cannabinoids is a Schedule 1 felony," Jeff Frazier notes. "A medical marijuana patient's marijuana does not become 'synthetic,' and thus felonious, because he bakes it into a brownie or extracts it into an oil. The Michigan Controlled Substances Act and courts interpreting it make this crystal clear." In other words, prosecutors are trying to convict Lorincz of a felony even while admitting that he is guilty, at most, of a misdemeanor.
In addition to fighting that felony charge, Lorincz is trying to regain custody of his 6-year-old son, who was placed in a foster home after the 2014 incident that led to Lorincz's arrest. "This affects many lives," Frazier says, noting that there were more than 20,000 arrests for marijuana possession or use in Michigan last year. "This certainly affects all of those arrests where the lab report says 'THC, Schedule 1,' with or without the qualifying language 'origin unknown.'" Even cases where defendants were charged with possessing marijuana, rather than THC, could be affected, since an "unknown origin" report does not support that charge either. If the state says it doesn't know whether the THC in a sample came from a natural or synthetic source, it cannot prove the defendant possessed marijuana.
Lorincz's next hearing is scheduled for Thursday, when Komorn will seek to have the lab report thrown out by arguing that it does not meet scientific standards. "The crime lab engaged in systematic evidence tampering," Komorn argues in an October 24 motion that asks Circuit Court Judge Edward Post to hold the officials responsible for the Forensic Science Division's new marijuana policy in contempt of court. "The crime lab perverted science and broke the law. It reported bogus crimes."