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Judge Denies Medical Marijuana Defense Motion, Sends Witt Case To Trial


bobandtorey

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GAYLORD — The case of a local medical marijuana caregiver will go to trial Tuesday after a motion request to allow the defense to cite specific protections under medical marijuana law was denied.

In 46th Circuit Court Monday, Judge George Mertz denied a motion request, which would have either dismissed the case or allowed defense attorney Josh Covert, of Nichols Law Firm in East Lansing, to cite defenses under Section 8 of the Michigan Medical Marihuana Act on behalf of his client, Alan Witt, 27, of Gaylord, who faces several marijuana-related charges.

“(Tuesday) we won't be asserting a defense under the (Michigan) Medical Marihuana Act, based on the judge's decision,” Covert said. “At the same time, I still feel confident with this case.”

Before making his decision, Mertz listened to arguments and rebuttals from both Covert and Michael Rola, Otsego County prosecutor. During this time, two witnesses were called to testify, including Witt and Arnold Czarnecki. Witt conducted an alleged medical marijuana transaction with Czarnecki May 26, which Rola argued was illegal, leading to this case and charges including two felony counts of delivering and manufacturing marijuana and one count of maintaining a drug house.

During the transaction, testimony shows Czarnecki entered Gaylord Provisions, a medical marijuana dispensary where Witt was employed at the time located at 115 S. Wisconsin Ave., May 26, and after showing his registered medical marijuana card, purchased 4 1/2 grams of marijuana, in addition to a marijuana brownie.

Though he was a registered, card-carrying medical marijuana patient, Witt was not Czarnecki's registered caregiver.

Despite the lack of the registered caregiver-patient relationship, Covert cited protections under Section 8(b) of the Michigan Medical Marihuana Act.

In order to apply for Section 8(b) protections — which states “A person may assert the medical purpose for using marihuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the person shows the elements listed in subsection (a)” — the defense had to prove the elements in section 8(a).

According to the act, it explains a patient and the patient's primary caregiver can assert the medical purpose for using medical marijuana as a defense to any prosecution involving marijuana, when there is evidence showing:

• A physician has, in his or her own professional opinion, after completing a full assessment of the patient's medical history and current medical condition made in the course of a “bona fide physician-patient relationship”, the patient would likely receive therapeutic or palliative benefit from the medical use of marihuana, helping to treat or alleviate certain medical conditions or symptoms.

• The patient and the patient's primary caregiver, if any, were collectively in possession of a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition; and

• The patient and the patient's primary caregiver, if any, were engaged in acquiring, possessing, cultivating, manufacturing, using, delivering, transferring, or transporting of marijuana or paraphernalia relating to the use of marijuana to treat or alleviate the patient's medical condition or symptoms.

Covert attempted to make his case on each element and was disappointed with the final ruling.

“I was surprised. I do think we showed some evidence toward each of the three elements,” Covert said. “I think a reasonable jury could have heard what we presented today and determined there was a defense under Section 8 of the (Michigan) Medical Marihuana Act.”

While delivering his decision to the court, Mertz broke down each element and explained why the defense proved or failed to prove each piece.

He said the defense was able to prove the first element, that a physician had the opinion that Czarnecki would benefit from the medical use of marijuana, but failed to prove the last two based on Witt's alleged failure to accurately determine what a reasonable amount of marijuana would be for Czarnecki to treat his condition.

According to testimony, Witt supplied Czarnecki with the 4 1/2 grams of marijuana solely because he had a medical marijuana card and the amount requested was under the maximum 2 1/2 ounces allowed by the law.

“It is apparent from the testimony, and Mr. Witt's testimony, that really the only thing he based his decision in this case on was how much Mr. Czarnecki asked for, the fact that he had a (medical marijuana) card and that he wasn't asking for an amount over 2.5 ounces,” Mertz said. “There isn't any evidence presented by the defendant that he had any information which would help him or allow him to make a determination as to what would be a reasonable amount for Mr. Czarnecki to use.”

Though it may be viewed by some as a small victory for the prosecution, Rola said he did not see it in that light.

“Had the court granted the motion and dismissed the charges, that's the only way it would have changed anything,” Rola said. “It doesn't add anything to my side. It's just one less matter that the prosecution has to deal with.”

Though Mertz's decision was a bit of a surprise, Covert said he is ready for trial.

“We are going to hold the prosecuting attorney to the burden of proof, which is proof beyond a reasonable doubt,” Covert said. “It's the highest burden of proof in the criminal justice system, and we think a jury of Alan's peers, once they hear the evidence, are not going to convict.”

Approximately 67 people, as well as six officers from the Otsego County Sheriff's Department, filled the courtroom for the hearing and another large crowd could be in attendance for the trial Tuesday.

Prior to the hearing, Mertz took several minutes to acknowledge the group of people, mostly people there to support Witt, though also to lay ground rules and assure there were no issues during the hearing. There were no interruptions.

With the support he has received and belief in his innocence, Witt said he is more than prepared for the trial.

“I'm very confident a jury of my peers will not convict me because I am an innocent, law-abiding citizen,” he said. “I didn't do anything wrong, I didn't hurt anybody, I didn't harm anybody, I didn't kill nobody.”

 

http://www.petoskeynews.com/gaylord/judge-denies-medical-marijuana-defense-motion-sends-witt-case-to/article_1ffedeb4-c399-11e5-ac63-0f7991f7fb0d.html#.VqbDSEokSug.twitter

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hmm, he should do an interlocutory appeal.

 

you are 100% correct zap. although the msc opinion goes into great detail on how the trial court and court of appeals ruled the other way, the msc finally states the correct path

 

page 38 of tut/wick ruling

Instead, a primary caregiver may reasonably rely on the

amount his or her patient states is needed to treat the patient’s debilitating medical

condition.

maybe you will call covert tommorrow?

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  a witness cannot be compelled to give testimony that the witness reasonably believes could be used against him or her in a criminal prosecution i did witness that last week in a Sec 8 hearing

 

last week where the  prosecutor wanted to charge the witness as they testified  and the Judge made them all get free Lawyer downstairs in the court house it's becoming a way to scary people from testifying 

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A medical marijuana caregiver was in court Monday--a follow-up from state police raids of several Otsego County dispensaries.

The Otsego County court room was full Monday to hear a heated debate.

Alan Witt was in court in Gaylord for a hearing to determine how his defense would proceed in trial that begins Tuesday.

Police arrested Witt as well as Gage McGuire, Deborah Conklin, and Deborah and Douglas Sides in the May raids. 

All but Witt pleaded guilty to maintaining a drug house and were slapped with fines, but no jail time.

Witt is the first to come to trial.

9 & 10's Blayke Roznowski and photojournalist Erin Malone have our continuing coverage from the court room Monday.

"We cure people," Witt said. "I've saved more lives. I haven't caused no lives and that's what we're here for." 

Alan Witt stepped into the court room Monday with the support of at least 100 people behind him. Monday's hearing was to determine how he would defend himself after dispensary raids in May. 

"To try to argue in front of this court that there was then evidence that there was a reasonable expectation of continued follow up defies credulity," Otsego County Prosecutor Michael Rola said. 

Witt's attorney wanted to use Section 8 for their defense in Tuesday's trial.

In court Monday, they had to prove a doctor saw a patient and recommended he use medical marijuana for treatment, that the caregiver was providing a reasonable amount for the patient's treatment and that the patient was using the marijuana to treat their ailment. 

"The court is going to deny the motion based on the failure to make out a prima facie case on two of the three elements and the defendant will not be able to present a Section 8 defense to the jury," Otsego County Judge George J. Mertz. 

Even without the Section 8 defense, Witt believes the community is behind him with people traveling as far as Kansas to support him.

"People care about this person, Al, who's going on trial," cannabis activist Sarah Swain said. "They care about this issue, they care about them having the right to legally access their medicine."

Tuesday, a jury will begin hearing the case to determine if Witt is guilty of maintaining a drug house and illegal delivery of marijuana.

 

http://www.9and10news.com/story/31052835/otsego-county-dispensary-owner-to-stand-trial-after-police-raids

 
 
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Witt was not Czarnicki's designated caregiver under either sec. 4 or sec. 8. Anyone and everyone should have something spelling out the details establishing the elements of sec. 8. Something like this could have helped as Affirmative Protection (nice touch with the blog title zap), and been presented as prima facie evidence of the elements necesssary to establish the Affirmative Defense..

 

http://michiganmedicalmarijuana.org/blog/584/entry-1163-added-evidentiary-protection-with-or-without-registration/
 

Edited by GregS
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George Mertz named to 46th Circuit Court

Monday, January 14, 2013

LANSING, Mich. - Gov. Rick Snyder today appointed Gaylord resident George Mertz to the 46th Circuit Court, serving Kalkaska, Crawford and Otsego counties. The appointment fills the vacancy created by the death of Judge Dennis Murphy.

"George Mertz is an outstanding attorney who is respected by his peers," Snyder said. "I am confident he will serve the region well in this new capacity."

 

Mertz currently serves as an assistant general counsel for the Police Officers Association of Michigan as well as an adjunct faculty member at North Central Michigan College. He began his legal career as a law clerk in the Michigan Attorney General's office and then in the 46th Circuit Court. Later, he served as an associate attorney at the Gaylord office of Plunkett Cooney P.C.

 

After graduating with a bachelor's degree in history from Michigan State University, Mertz earned his law degree at the Detroit College of Law at Michigan State University.

 

Mertz will serve the remainder of Murphy's term through Jan. 1, 2015. He will need to seek election for a full six-year term in November 2014.

 

http://www.michigan.gov/snyder/0,4668,7-277-57577_57657-292747--rss,00.html

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Tuesday, a jury heard testimony in the case against an Otsego County medical marijuana caregiver.

Alan Witt is charged with making and selling marijuana and operating a drug house.

He was the manager of Gaylord Provisions when police raided it and other dispensaries in May.

Witt is a registered caregiver.

Investigators say he sold medical marijuana to someone who was not his patient.

Under Michigan’s medical marijuana law, caregivers can only sell to people who are designated as a patient.

9&10’s Lynsey Mukomel was in court Tuesday for testimony and has our continuing coverage.

“It certainly wasn't my client that made that purchase, that transaction on that day correct? 'No it was not.' In fact it was a female is that correct?”

The defense for Alan Witt asked everyone involved in the investigation if they could prove Alan Witt sold medical marijuana to a police informant.

For their privacy, we're not showing anyone who worked undercover in the investigation.

The prosecution called the only other employee at the dispensary,

“If someone purchases marijuana on fourth of May could it have been you?" "It may have been.” Says Kerry Helzer.

The defense also argued the police informant was motivated to help because he was facing his own charges, but the prosecution asked if that's normal.

“Is it surprising to you in your experience that that's the way it's done?" 'No' 'and why not?' 'Because cops can't buy from people who are dealing drugs.' 'who can?' 'People that get in trouble.”

The prosecution says at the beginning of May, medical marijuana was sold to the informant while Witt was working, which broke the law.

“Gaylord provisions was not his caregiver so it would've been a felony for him to sell marijuana to our informant.”

The Defense decided not to call any witnesses after the Prosecution rested.

Closing arguments will begin in the morning, then the case will go to a jury for deliberation.

 

http://www.9and10news.com/story/31064051/otsego-county-court-hears-testimony-in-marijuana-dispensary-raid-arrest

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As the jury trial of Alan Witt began Tuesday morning, both sides believed that the case would be settled one way or another by the end of the day.


However, after 8 hours of trial proceedings, members of the jury signaled to the judge that they were too tired to go into deliberations and the rest of the trail was put off until Wednesday morning. 

Witt, a medical marijuana caregiver and dispensary employee, currently faces 3 felony drug charges.



Those charges include maintaining a drug house and delivering and manufacturing marijuana. 

The days proceedings began with Joshua Covert, Witt's attorney, and Otsego County Prosecuting Attorney Mike Rola making their opening statements to the jury.

Several witnesses were called to testify, including police officers and a confidential informant.

Dozens of bags containing evidence were submitted to the court.

Several of the evidence bags contained marijuana that had been seized by Straits Area Narcotics Enforcement during a series of raids on dispensaries in Otsego county back in May.

"The defendant in this particular matter, delivered or possessed with intent to deliver controlled substance of marijuana and marijuana products in violation of the Michigan Medical Marijuana Act and our laws," said Rola.

However, Witt still has plenty of support from medical marijuana activists in his corner.



"Al is doing the right thing," said cannabis activist Sarah Swain. "He is asserting his right to trial and we feel strongly that the citizens in this county have spoken about how they feel about the dispensaries and whether they should be allowed to operate."

Activists came from across the state to make their presence felt during the trial.

The advocates believe that by supporting Witt, they are also backing up all dispensaries and care givers across the country.

http://upnorthlive.com/news/local/verdict-delayed-in-gaylord-medical-marijuana-trial

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An Otsego County dispensary owner was back in court Wednesday for the end of his trial.

The defense and prosecution gave their closing arguments Wednesday morning and the jury read their verdict later that afternoon.   

Police arrested Alan Witt after raiding several dispensaries in Gaylord in May.

He was on trial for one count of delivery of marijuana, one count of possession with intent to distribute and one count of maintaining a drug house. 

The prosecution argued that Witt sold marijuana to a police informant.

His car was seen at Gaylord Provisions on the days in question.

The defense says the police informant is the only person to say Witt was there and that a woman actually made the sale.

“What someone wants the law to be, it's maybe what somebody thinks the law is, it’s maybe what some people might want the law to be in the future, but it's not the law,” says Otsego County Prosecutor Michael Rola.

Witt says, “If you feel there's a fair and honest doubt, that's your decision to make. It's your individual decision and I ask that you stand up.”

The jury found Witt guilty on one count of delivery of marijuana. He was found not guilty of maintaining a drug house. 

The jury was unable to reach a verdict on the charge of possession with intent to distribute. It's up to the prosecutor to decide if Witt will face a new trial for the possession with intent to distribute charge. 

We will have more details from today's verdict tonight on 9&10 News.

 

http://www.9and10news.com/story/31070367/otsego-county-jury-reaches-verdict-in-trial-against-dispensary-owner

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"I'm baffled on the decision that the jurors have made," defendant Alan Witt said.

Wednesday a jury found an Otsego County marijuana caregiver guilty of one of three crimes he was accused of.

Alan Witt was found guilty for one count, not guilty for another, and the jury couldn't make a decision on the third count. 

The trial stemmed from marijuana dispensary raids back in May.

Witt was one of several arrested, but has been the first to come to trial, accused of drug crimes and breaking Michigan's medical marijuana law.    

9 & 10's Blayke Roznowski and photojournalist Erin Malone have our continuing coverage from court Wednesday and reaction over the verdict.

"We have to stand up for this and we have to change things and I do not give up on that at all," Witt said.  

The trial for Alan Witt ended Wednesday with closing arguments from both sides.

They argued whether or not Witt was guilty of charges received after marijuana dispensary raids in May.

"The simple, plain answer to, 'why is the defendant here' and, 'why was he charged?' It's because, ladies and gentleman, he violated the law," Otsego County Prosecutor Michael Rola said. 

"The prosecuting attorney hasn't met their burden they're not able to show this beyond a reasonable doubt," defense attorney Joshua Covert said.

After four hours of deliberation, the jury found Witt guilty for delivery of marijuana.

He was found not guilty for maintaining a drug house.

The jury was hung on the count of possession with intent to deliver.

"I'm just confused to why I got charged as a felon," Witt said. "I don't feel like a felon. I'm a law abiding citizen. We're just helping sick patients."

Witt wasn't the only one confused.

Many supporters say the law itself is complicated and they'll continue to show support.

"I'm not going to come out for someone I believe is breaking the law," supporter Jolene Fowler said. "I'm not going to come support somebody who's not a good member of my community."

"In your community, you need to come out and support things like this and support things you're passionate about," supporter Constance Taylor said. 

Witt says he will appeal his guilty verdict.

It's up to the prosecutor on how they'll proceed with the mistrial.

 

http://www.9and10news.com/story/31074183/gaylord-marijuana-caregiver-found-guilty-for-delivering-marijuana

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Most people that end up needing section 8 just needed the marijuana they had. They have medical reasons for possessing it, not a personal legal theory. If someone needs marijuana in excess of what section 4 provides, section 8 is all that can be relied upon.

This pretty clearly demonstrates what can and does happen if a CI and the police wish to entrap an individual for selling cannabis to the CI who claims he/she is a legitimate patient with a legitimate certification and a legitimate need. We know the SC ruled that a card is insufficient to provide that presumption. Sec. 8 is in fact the law, and is intended to protect any such transaction from conviction. Affirmative Protection closes the door to entrapment to law enforcement in like cases.

Edited by GregS
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It can also help avoid entrapment if law enforcement tries to sell cannabis to a legitimate patient with a legitimate certification and a legitimate need, but perhaps no registration, and again, a card is insufficient, if and when the seller is designated as the patient's caregiver. The Affirmative Protection must be concluded before the transaction, with or without registration.

Edited by GregS
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http://www.9and10news.com/story/31074183/gaylord-marijuana-caregiver-found-guilty-for-delivering-marijuana#.Vqoq5hUq-To.facebook

 

Gaylord Marijuana Caregiver Found Guilty for Delivering MarijuanaPosted: Jan 27, 2016 5:59 PM EST 
9743552_G.jpg

"I'm baffled on the decision that the jurors have made," defendant Alan Witt said.

Wednesday a jury found an Otsego County marijuana caregiver guilty of one of three crimes he was accused of.

Alan Witt was found guilty for one count, not guilty for another, and the jury couldn't make a decision on the third count. 

The trial stemmed from marijuana dispensary raids back in May.

Witt was one of several arrested, but has been the first to come to trial, accused of drug crimes and breaking Michigan's medical marijuana law.    

9 & 10's Blayke Roznowski and photojournalist Erin Malone have our continuing coverage from court Wednesday and reaction over the verdict.

"We have to stand up for this and we have to change things and I do not give up on that at all," Witt said.  

The trial for Alan Witt ended Wednesday with closing arguments from both sides.

They argued whether or not Witt was guilty of charges received after marijuana dispensary raids in May.

"The simple, plain answer to, 'why is the defendant here' and, 'why was he charged?' It's because, ladies and gentleman, he violated the law," Otsego County Prosecutor Michael Rola said. 

"The prosecuting attorney hasn't met their burden they're not able to show this beyond a reasonable doubt," defense attorney Joshua Covert said.

After four hours of deliberation, the jury found Witt guilty for delivery of marijuana.

He was found not guilty for maintaining a drug house.

The jury was hung on the count of possession with intent to deliver.

"I'm just confused to why I got charged as a felon," Witt said. "I don't feel like a felon. I'm a law abiding citizen. We're just helping sick patients."

Witt wasn't the only one confused.

Many supporters say the law itself is complicated and they'll continue to show support.

"I'm not going to come out for someone I believe is breaking the law," supporter Jolene Fowler said. "I'm not going to come support somebody who's not a good member of my community."

"In your community, you need to come out and support things like this and support things you're passionate about," supporter Constance Taylor said. 

Witt says he will appeal his guilty verdict.

It's up to the prosecutor on how they'll proceed with the mistrial.

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