By Michael Komorn
Komorn Law PLLC is happy to report that the broken criminal justice system shined a light on us today. The battle in Isabella, the State v Team Fisher concluded today with a 14-page opinion that was a joy to read. The Court held that the accused had not only presented proof of the requisite elements of the section 8 defenses, but that no question of fact existed, and therefore all charges are dismissed.
To call my client and his family courageous would be an understatement. My client, a registered patient and a caregiver for his wife, also a registered patient, was raided after an alleged anonymous tip and a trash pull. These minimal facts resulted in a search warrant for both his house and shop. According to the Drug Task Force, the raid of these locations resulted in the confiscation of 29 pounds of marihuana and 1 pound of wax.
The complaint charged the following crimes:
I. Intent to deliver Marijuana MCL 333.7401(2)(d)(ii). A felony punishable by 7 years and imposition of license sanctions.
II. Intent to deliver Marijuana plants. MCL 333.7401(2)(d)(ii). A felony punishable by 7 years and imposition of license sanctions.
III. Manufacture Marijuana MCL 333.7401(2)(d)(iii). A felony punishable by 4 years and imposition of license sanctions.
IV. Possession of a Firearm in the Commission of A Felony contrary to MCL 750.227b A Felony punishable by 2 years, mandatory prison sentence to run consecutively with and preceding any term of imprisonment imposed for the felony or attempted felony. To Wit Count 3 (as the underlying Felony)
V. Maintaining a drug house. MCL 333.7405. 2 year and imposition of license sanctions.
VI. Maintaining a drug house. MCL 333.7405. 2 year and imposition of license sanctions.
Additionally, the drug task force seized every piece or property in the vicinity they could get their hand on, pursuant to the forfeiture law. (no, the amendments have not done a single thing to slow down the DTF’s appetite for forfeiture and the glory of its proceeds). Also, an important part of this story is that my client owned a few guns, and they were in his house at the time of the raid.
As is often not reported, but all too often used, the combination of owning a gun and being outside of section 4 escalates what would normally be allegations of illegal marihuana activity to felony firearm charges. If convicted of the felony firearm charges, the crime requires a mandatory 2-year sentence to prison, to run consecutive to any other sentence. That while felony firearm requires possession of the firearm while committing an underlying felony, akin to a person selling drugs on the street with a pistol on their waistband, all too often prosecutors have extended this allegation to include patients and caregivers who are lawful gun owners. And while the law on its face suggests the possession of the weapon and the illegal marihuana behavior be contemporaneous, the law actually permits persons to be charged with felony firearm even when they are not physically possessing the firearm or even at the location where the firearm and the marihuana is located. My client’s garden was contained within the detached garage which was locked and enclosed and not accessible to anyone, and the firearms were contained within the residence, where less than the amount of marihuana allowed pursuant to section 4 was kept.
As many attorneys will say, the conversation with your client is much different when the state is charging felony firearm.
So with allegation of 29 pounds of marihuana, a pound of wax and felony firearm charges, me and my client and his family put our gloves on and fought back.
The preliminary exam, which originally included my client's wife (represented by David Rudoi) and a codefendant (represented by Jessie Williams) took place over three full days, resulting in each of the accused being bound over on all charges.
Shortly after getting to Circuit Court, the codefendent was offered and agreed to plead guilty to an innocuous misdemeanor. My client's wife was offered a misdemeanor, but refused to admit that she did anything wrong. As previously mentioned, David Rudoi successfully argued to the Circuit Court judge that there was not enough evidence presented at the preliminary exam to substantiate the charges, or that the state had failed to present even probable cause of a crime, and all charges against my client’s wife were dismissed.
At this point in the proceeding, with my client the only remaining defendant in the case, we began to litigate the case.
We filed literally 16 motions and litigated each of them, which included hours and hours of evidentiary hearings, and testimony from all of the witnesses involved.
It is important to note that the Judge presiding over the case allowed us to litigate the case (didn't fight obstruct or interfere with taking testimony) and was more than prepared for each of the hearings. It was obvious to us that he was conscientious of the issues and did take great efforts to analyze the facts and law for each of the motions we filed. Even though I disagreed with every one of his rulings except one, it was a pleasure to have a Court show more interest in the issues in the case, and my client's due process rights, than the age of the case. For each of the motions filed he issued a written opinion. The list of motions and the court’s rulings are listed below.
1. Motion for a Walker Hearing - Denied
2. Motion to Dismiss based upon an illegal arrest (Ferretti Motion) - Denied
3. Motion to Quash the Information and Bindover of the Felony Firearm Charges Based Upon Constitutional Grounds - Denied
4. Motion to Quash the Affidavit and Search Warrant on Constitutional Grounds - Denied
5. Motion to Reconsider Search Warrant Motion - Denied
6. Motion to Quash Bindover and Dismiss - Denied
7. Emergency Motion to Adjourn - Denied
8. Motion to Quash Search Warrant - Denied
9. Motion to Dismiss Pursuant to Daubert or in the Alternative Set for and (Evidentiary) Daubert Hearing and Memorandum of Law in Support of Dismissal or Evidentiary Hearing Pursuant to Daubert; (challenge to the advisability of the lab reporting based upon the Michigan State Police Forensic Science Division's Crime Lab Scandal #Crimefactory) -Denied
10. Motion in Limine to Exclude Forensic Evidence or Alternatively for a Daubert Hearing - Denied
11. Supplemental Memo in Support of Daubert - Denied
12. Motion to Preclude Evidence Based Upon Judicial Estoppel - Denied
13. Motion to Preclude Evidence Based Upon Relevancy - Denied
14. Motion to Dismiss Pursuant to MMMA Section 4(g), or Preclude Evidence of Paraphernalia and Request for Evidentiary Hearing - Denied
15. Motion to Dismiss Pursuant to Section 4 of the MMMA and the Amendments (That Were Signed into Law September 22, 2016 are Curative and Retroactive) - Denied
16. Motion to Dismiss Pursuant to Section 8 of the MMMA. Granted and all charges (including the felony firearm) dismissed
Another interesting issue in the case, and I mention this mostly for instructive purposes, was that the State alleged that my client made an inculpatory statement or confession. According to the police (despite no audio or video recording, or written statement acknowledge by my client of what he actually said) my client purportedly uttered some sentences, which included the following words: "Dispensary, Overages, Sell". Of course my client never spoke these words as the investigators alleged. But he did talk to the police (as often times persons who don't believe they have committed a crime would do) however as it goes when people talk to the police, whatever you say WILL be used against you. (DON'T TALK TO THE POLICE-EVER).
As reflected within the 14 page opinion (what a great read) dismissing all charges based upon the MMMA affirmative defense pursuant to section 8, the court took some time addressing the impact of the so called "statement". While the courts final ruling was based upon our arguments minimizing the value of the statement for purposes of the affirmative defense, it was more than obvious to us that this opinion could have gone either way based upon the Court’s interpretation of the law and the impact of the alleged "statement." Let me say it again, DO NOT TALK TO THE POLICE.
It is important to note, and this is not legal advice, but at times throughout the case, the State made the following plea offers:
Prior to litigating the motions in Circuit Court the State offered my client a resolution that if he Plead to Counts 1) 7 year felony and 5) 2 year high court misdemeanor, they would dismiss the remaining charges, with no sentence agreement. Then after we conducted the Daubert hearing and prior to getting that unfortunate ruling (the motion to reconsider was not necessary) they offered that if my client plead to counts 5 and 6 (2) 2 year high court misdemeanors they would dismiss all the other counts with no sentence agreement. Then of course after we lost the Daubert motion the State withdrew the previous offer, and offered that if my client plead to a 4-year felony and a 2-year high court misdemeanor they would dismiss the rest of the counts with no sentence agreement. Looking back on this case there was a a lot of the blood sweat and tears shed from the backs and brow of Chad, Josh, Steve, Jeff, Dewey, Pam, Deb, David Rudoi, Jesse Williams, Fred Stig-Neilson, Eric VanDussen. Including the all-nighter I pulled Sunday putting together the motion to reconsider regarding the Court’s rulings on Daubert motions (the lab issues), and the preparation for the trial that was to commence Monday - this was a battle that will never be forgotten.
Additionally rewarding is the fact that my client’s case and the abusive forfeiture they and many from our community have had to endure, was highlighted in (what is clearly the greatest show ever created) "Weediquette" episode 6 of season 2. Stay tuned, the next series of motions we intend to file will be to compel the return of all of the property that was seized pursuant to the forfeiture (as well as seek other remedies for my client and his wife).
I want to congratulate my client and his family for having the will and strength to stand up for what they believed and take on the State on a lopsided playing field in the broken system often called the American judicial system.
#TeamFisher #StopTheRaids #KomornLawMI
The story continues after the prosecutor appealed our dismissal.
By Michael Komorn
Karen Roberts said: 'I was sent home to die but am pleased to say I am very much still here'
By Cheryl Hague 14:17, 22 DEC 2017 UPDATED14:21, 22 DEC 2017 A grandmother of six diagnosed with terminal cancer and sent home from hospital to die is in remission after using cannabis oil - and is now looking forward to spending time with her family.
Karen Roberts from Derby had aggressive lymph cancer and was told she was terminally ill just weeks before she lost her husband Garry to leukaemia in 2015.
She said she was sent home by the hospital to die as they said there was nothing else they could do for her - staff even took all her medication away.
But she has defied the medics' beliefs and after taking cannabis oil she saw her tumours shrink.
That was two years ago and now she is remission and looking forward to spending more time with her six grandchildren.
Karen Roberts when she worked at Asda in Sinfin before she was diagnosed with cancer The former charity fund-raiser at Asda in Sinfin said: "I should be dead now but am happy to say I am in remission and am having four monthly checks at the hospital."
And she has her three children to thank for her new life as they persuaded her to take the oil after they read how it has been responsible for helping other cancer sufferers.
The 58-year-old said: "I wasn't bothered at the time, Garry was dying and I was ready to go myself but my kids had read about the oil online and persuaded me to try it. That was two years ago I haven't looked back since.
"I was sent home to die but am pleased to say I am very much still here and have gone on to see three grandchildren who I never thought I would see."
The cannabis-based oil which has helped Karen in her cancer battle She said she has been inundated with people asking about how the oil helped her but warns it will not help everyone.
She said: "I took it because I had no choice as all other options were closed to me - had I been offered medical help at the time such as a transplant or chemotherapy, I would have taken it and not used the oil.
"I always tell people that their medicine is more important and you can't mix it with cannabis oil - you need to trust your doctor or consultant as they are the experts.
"I asked my consultant last time: 'Why do you think I am here is it because of the oil?' He said he didn't know but that I could have been in remission at the time I was told I was terminal and there was a mix-up. We just don't know.
"I am just glad I have been given another chance and can't wait to spend time with the family. They have offered me so much support it has been brilliant.
"My main aim was to get back to work but now it looks like I may have to take early retirement as I am having problems with asthma."
A cancer expert said cannabis-based drugs had showed “some promise” in tests.
Karen said she ordered the substance online and it arrives in brown bottles at £40 a time. She uses just a few drops of the substance at any one time.
A senior science communications officer at Cancer Research UK, said: “The only way to get scientific evidence that a treatment is effective is through clinical trials.
“The limited results we have so far on using cannabinoid-based drugs as a cancer-fighting therapy show some promise – but we’re far from knowing for certain if these drugs benefit cancer patients, what types of cancer they may be effective against, or at what dose.
“More research is needed, which is why we’re helping to support the only two trials of cannabinoid-based drugs taking place in the UK.”
The oil has not yet been approved for use on the NHS - but is readily available to buy online as a food supplement - although it has been widely reported to help other conditions such as arthritis, depression, MS and other illnesses.
Research into the health benefits of taking cannaboids - particularly for cancer - is currently being undertaken at St George's, University of London.
Dr Wai Liu, senior research fellow at St George's, University of London, said: “Cannabidiol, which is just one element of the cannabis plant and one that does not have any psychoactive effect on people, has been shown to target communication signals that are malfunctioning in cancer cells.
“It is thought that by correcting these signals we can enable cancer cells to essentially die rather than duplicate. So it may hold the key to understanding how to defeat cancer in some areas.
“We at St George's, University of London, have shown how this can be done. Although our data has mainly been laboratory- based, we have a growing and large collection of testimony from patients using cannabidiol, usually in a cannabis oil type product, who report positive effects on their battle with this dreadful disease."
By Michael Komorn
Grandmother says cancer has almost gone after taking cannabis oil - now she wants the Government to act
She is now calling on the Government to fund trials of cannabis oil on patients waiting for cancer treatment
By Cheryl Hague 07:00, 25 DEC 2017 A grandmother who had a malignant tumour in her breast which measured 33mm says it has now almost gone after taking cannabis oil.
Now Lin Coxon, of Willington, is sharing her story with the Government to see if they will fund a medical trial testing cannabis oil on patients while they are waiting for cancer treatment.
Lin was diagnosed with the disease on June 28 at the Royal Derby Hospital. A scan revealed the size of the lump and found it had also invaded her nearby lymph nodes. She was told her treatment would involve eight rounds of chemotherapy followed by a lumpectomy and the removal of all the lymph nodes. This would then have to be followed by radiotherapy.
But while waiting for her treatment to start in August the 69-year-old read how, in some cases, cannabis oil had been found to help treat cancer so she bought some and began taking it.
Incredibly her last scan revealed the cancer has completely gone from her lymph nodes and the tumour is hardly visible.
Grandmother Lin Coxon told how a cancerous tumour discovered in her breast has shrunk from 33mm to 7mm in just a few weeks purely by taking CANNABIS oil She said doctors at the hospital are fascinated by her case and are continuing to monitor her progress even though she isn’t going ahead with the chemotherapy as they originally suggested.
Lin said: "I feel fantastic and can tell it has almost gone. Before it felt like a hard lump but after a few weeks of taking the oil it had shrunk so much I couldn't feel it. Now it's almost gone and, on the scan, you could see how the density has changed from something that looked solid where now the only bit that is left looks like a tiny bit of smoke.
"I bought cannabis oil from a health shop in Ashbourne and decided to take a few drops - I didn't have anything to lose as I was waiting for my chemotherapy to start so thought I may as well give it a try. I am so glad I did.
"The doctors are still monitoring me and said if it did come back I would have to have chemotherapy and of course I would but I just want to see how it goes now.
"In fact at my last appointment the doctors said the tumour was so small they could to a lumpectomy to get it out - but I said let's just see how the oil works for a bit longer.
"Since I spoke of my initial success with the oil in The Derby Telegraph in October I have been contacted by other people who have had similar positive experiences so I really think there is something in it.
"I cannot say cannabis oil will work for anyone else but my experience would seem to show it is worth trying. I feel people have nothing to lose especially if they are waiting for chemotherapy. It may only help for some cancers - we won't know though until research takes place."
Lin Coxon bought the cannabis oil in Ashbourne Now Lin, who is Southern Derbyshire MP Heather Wheeler's personal assistant, wants the Government to take notice of her case and she has written to Steve Brine MP who is the Parliamentary Under-Secretary of State for Public Health and primary care asking about funding a trial in Derby which would allow patients diagnosed with cancer and waiting for treatment to take the oil in the meantime if they wanted to. Then the hospital could scan them before they had treatment to see if taking the oil has had any effect.
She said: "I just think it has to be looked into further as more people could be helped without the need for medical intervention - and, if that is the case, it would also save the NHS a lot of money."
The grandmother-of-ten, said she was inspired to try the cannabis oil after reading in The Derby Telegraph how it had helped Sinfin Asda worker Karen Roberts. She was sent home to die with terminal cancer but took the oil - and now two years later is in remission. Read her story here.
Lin bought the oil, which is legal and sold minus the psychoactive component that causes a high, at a health shop in Ashbourne. It cost a £39 a bottle. She has a few drops each day and a bottle lasts her ten days.
The oil has not yet been approved for use on the NHS - but is readily available to buy online as a food supplement - although it has been widely reported to help other conditions such as arthritis, depression and MS.
Research into the health benefits of taking cannaboids - particularly for cancer - is currently being undertaken at St George's, University of London, and the medical experts there have been in contact with Lin.
Dr Wai Liu, senior research fellow at St George's, University of London, said: “I was very interested to hear of Lin’s case. Cannabidiol, which is just one element of the cannabis plant and one that does not have any psychoactive effect on people, has been shown to target communication signals that are malfunctioning in cancer cells.
“It is thought that, by correcting these signals, we can enable cancer cells to essentially die rather than duplicate. So it may hold the key to understanding how to defeat cancer in some areas.
“We at St George's, University of London, have shown how this can be done. Although our data has mainly been laboratory- based, we have a growing and large collection of testimony from patients using cannabidiol, usually in a cannabis oil type product, who report positive effects on their battle with this dreadful disease.
"Lin's story is one that adds to this growing list and we wish her all the best in her treatment which should always be under the supervision of her doctors.”
By Guest Josh_Colton
The purpose of this bulletin is to advise municipalities (cities, townships, and villages) of the Bureau of Medical Marihuana Regulation’s (BMMR) intentions regarding municipality authorization of medical marihuana facilities. This bulletin is only for advisory purposes and is subject to change.
Under the Medical Marihuana Facility Licensing Act (MMFLA), MCL 333.27101 et seq., a municipality has the discretion to adopt an ordinance authorizing one or more types of marihuana facilities to operate within its boundaries.
An applicant that is located in a municipality without an authorizing ordinance is ineligible for state marihuana facility licensure. The Bureau intends to rely on the local municipality’s authorizing ordinance to determine whether an applicant is in compliance with relevant provisions of the MMFLA. Information that will be considered includes the following:
The types of marihuana facilities (growers, processors, provisioning centers, safety compliance facilities, and/or secure transporters) allowed to operate in the municipality. If applicable, the maximum number of each type of marihuana facility allowed to operate in the municipality. Any zoning regulations that apply to marihuana facilities within the municipality, including whether licensees may apply for special use permits. More information regarding municipalities and the MMFLA:
Municipalities shall not impose regulations regarding the purity or pricing of marihuana. Municipalities shall not impose regulations that conflict with statutory regulations for licensing marihuana facilities. There is no deadline for municipalities to adopt authorizing ordinances. Municipalities are not required to “opt out” or prohibit marihuana facilities within their boundaries. This bulletin does not constitute legal advice and is subject to change. It is intended to be advisory only, in anticipation of the Department of Licensing and Regulatory Affairs’ promulgation of emergency rules consistent with statutory requirements. Potential licensees are encouraged to seek legal counsel to ensure their licensure applications and operations comply with the Medical Marihuana Facilities Licensing Act and associated administrative rules.