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Criminal prosecution of California cannabis attorney raises concerns

Criminal prosecution of California cannabis attorney raises concerns

The prosecution of a San Diego attorney is raising major concerns in the legal community about the attorney-client privilege and the possibility that Jessica McElfresh is being prosecuted because she did her job.

McElfresh, who has represented other clients who are involved with cannabis, is facing multiple felony charges related to one of her clients, Med-West Distribution, which sold marijuana laced products for medical uses. She faces up to 15 years in prison.

Former San Diego district attorney Bonnie Dumanis brought criminal charges against Med-West Distribution owner James Slatic, several of his business associates, and McElfresh in May 2017. The arrests happened after authorities raided Med-West in January 2016, seizing hundreds of thousands of dollars as well as records, inventory and equipment.

The criminal complaint said the defendants illegally manufactured and sought to sell “concentrated cannabis” using flammable and toxic chemicals while also engaging in money laundering and obstruction of justice.

Dumanis has since resigned but the case is still being prosecuted under her successor, Summer Stephan.

Two weeks before the business was raided, a judge ordered Dumanis to return over $100,000 that had been seized from Slatic and his family under civil forfeiture.

Dumanis claimed in the criminal complaint that McElfresh was involved in illegal activity. This allegedly involved McElfresh coming to a production facility and making sure that evidence of the manufacturing and possession of concentrated cannabis was removed before the facility was inspected.

According to KPBS, “The basis of the charges was an email McElfresh wrote to Slatic following the 2015 inspection. The email, a privileged attorney-client communication, was part of the trove of information and property seized during the DA-led raid of the Med-West facilities in January 2016, which drew widespread publicity and criticism.”

Slatic has said prosecutors didn’t understand the email, and that it was a bigger conversation about making sure that city inspectors understood that the facility wasn’t a marijuana dispensary.

Prosecutors seized McElfresh’s email, despite the fact that she has provided legal advice to hundreds of clients. Those clients have now hired other lawyers to keep their communication with McElfresh confidential.

“We have several clients who may also be in the files that were seized by the DA,” said Gina Austin, an attorney representing Citizens for Patient Rights, a political action committee that KPBS said advocates for local medical cannabis regulations. “We are protecting our rights.”

Austin expressed concern that behavior like this could lead clients to stop trusting and confiding in their attorneys, which would make it harder for lawyers to do their jobs effectively.

Prosecutors argued they should be able to look through all of McElfresh’s emails, but an agreement has been reached that would keep the clients confidential.

Under that agreement, prosecutors will only look at emails that mention the name and entities in the arrest warrant. However, the judge in the case said prosecutors could come back and seek to expand the search later if they had a good reason to do so.

The judge has also appointed a special master to decide which items are privileged and what could be turned over to prosecutors.

McElfresh’s lawyer said she should not have been charged.

“The only thing [McElfresh] did wrong was to advise a client in a field of law where the rules are rapidly changing, and what is legal and is not legal is not entirely clear on any particular point,” McElfresh’s defense attorney, Eugene Iredale, said.

Michael Crowley, a criminal defense lawyer and member of the San Diego County Bar’s Ethics Committee said he was concerned about the lack of clarity when it comes to cannabis law and how prosecuting someone like McElfresh will make attorneys afraid to give advice.

“An attorney needs to feel that they can freely give advice on areas that are murky in the law.” Crowley said.

Iredale also argues that prosecutors are unhappy marijuana has been legalized in California, and are taking out that anger on people like his client.

“Unfortunately, for whatever reason, the district attorney in San Diego County has historically fought a rearguard action against the changing norms and laws as represented by the democratic enactment of propositions regarding medicinal, and now recreational use of marijuana,” Iredale said.

The San Diego Board of Supervisors voted earlier this year to prohibit new marijuana businesses and phase out old ones in unincorporated parts of the county.

Full legalization of marijuana in California is scheduled to occur in January 2018.

Thanks to Josie Duffy Rice.

County attorney drops eight criminal cases due to an illegal search by New Jersey cops

The officers’ credibility is under fire.

The Bergen County Courthouse in Hackensack, New Jersey

County attorney drops eight criminal cases due to an illegal search by New Jersey cops

The officers’ credibility is under fire.

Gurbir S. Grewal assumed his role as the top prosecutor in Bergen County, New Jersey in January, and he’s already making headlines for doing what too few county and district attorneys are willing to do: emphasize justice instead of the fierce desire to convict. According to court records obtained by The Bergen Record, Grewal dropped eight criminal cases against 17 defendants in July, because of alleged officer misconduct.

The legal drama began in December, when seven officers from the Hackensack Police Department allegedly investigated “narcotics activity” in an apartment building and broke into a unit “without a search warrant or other legal justification,” the records say. All but one were in plainclothes, and they were not sent there by a dispatcher. The group entered the unit after an officer picked open the lock on the front door. Surveillance later showed the group improperly handling evidence as well.

The sequence of events differed drastically from the one described by an officer who was at the scene.

After the search was conducted, Detective Mark Gutierrez submitted an investigation report that was ultimately found to contain falsified information. He said he and other narcotics officers were looking into possible drug activity at an apartment building when the group was informed by an anonymous source that a child may have been alone in one of the units there. Gutierrez also wrote that the officers entered the apartment when they realized it was unlocked and nobody was coming to the door. His report was verified by a colleague who was also present during the illegal search.

The Internal Affairs office within the police department later discovered those details to be untrue. It launched an investigation of the search when a letter from an anonymous source was found in the office’s mailbox. “Captain Riotto and his boys covered up 64 Prospect Ave, the reports are full of lies!!!” the source wrote. “You think your guys got away with it, we know what really happened.” After some digging, Internal Affairs investigators discovered various inconsistencies between Gutierrez’ telling of the story and what actually happened. In May, the officers were suspended for launching the illegal search, lying about it, and mismanaging evidence at the scene.

The illegal search cast doubt on the integrity of other criminal cases the officers had a hand in. As a result, Grewal ultimately decided that those cases had to be thrown out altogether.

“We do not take the decision to dismiss criminal charges against seventeen criminal defendants lightly, but the conduct of the Subject Officers leaves us no other choice,” Grewal informed the police department last month. “Simply put, their conduct undermines their credibility as law enforcement witnesses.”

Police officers and prosecutors have a co-dependent relationship, working together to make arrests, gather evidence, and build criminal cases against defendants. It is a partnership that requires trust, and often results in one group turning a blind eye when the other breaks the rule of law. The decision to drop criminal cases and question the credibility of police officers in such a public way is a bold one for Bergen County’s top prosecutor, who has only been in office for seven months.

The eight criminal cases weren’t the only ones to be thrown out due to officer misconduct this summer. A similar decision was recently made by County District Attorney Kristen Barnebey in Aransas County, Texas. Barnebey announced her office will not accept any criminal cases from the Rockport Police Department due to evidence suppression. She will only take cases when Rockport officers show a commitment to the rule of law.

But even though it is the responsibility of all prosecutors, including district and county attorneys, to ensure that criminal cases are fair and just, both Grewal and Barnebey are the rare ones willing to do so — despite possible fallout.

In Bergen County, one of the officers accused of misconduct, Det. Rocco Duardo, is suing Grewal and the Prosecutor’s office, Hackensack police, and the City of Hackensack for allegedly labeling him a “Brady officer.” It’s a label used to describe officers who are dishonest on the job and consequently flagged for prosecutors as people who could undermine a case.

“This is just a hang-job,” Duardo’s lawyer told the news organization. “The worst-case scenario for these cops is they were over-zealous in engaging in their police mission … no one’s alleged to have stolen anything, no one’s alleged to have engaged in any kind of personal gain with this.”

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Oregon makes drug possession a misdemeanor over prosecutor objections

Oregon makes drug possession a misdemeanor over prosecutor objections

The state of Oregon has made drug possession a misdemeanor over the objections of multiple district attorneys in the state.

The new law went into effect as soon as Governor Kate Brown signed it earlier this month. It makes most instances of first-time simple possession of illegal drugs — including cocaine, heroin, and methamphetamines — a misdemeanor rather than a felony.

The change in classification from misdemeanor to felony will have a dramatic impact on the maximum prison sentence that someone could face if convicted. Under the new law, the maximum term of incarceration is one year. When classified as a felony, the maximum sentences often ranged from five to ten years.

The law was passed in the hope of shifting focus from criminalizing drugs to helping drug addicts get treatment — and ultimately keeping more people out of prison.

“We are trying to move policy toward treatment rather than prison beds,” said state Sen. Jackie Winters, who supported the bill. “We can’t continue on the path of building more prisons when often the underlying root cause of the crime is substance use.”

Some law enforcement groups backed the legislation. According to the Associated Press, “Among the law’s supporters were the Oregon Association Chiefs of Police and the Oregon State Sheriffs’ Association, which said felony convictions include unintended consequences, including barriers to housing and employment.”

But the law enforcement organizations warned that the new law would only work if additional drug treatment resources were made available.

Prosecutors will still be able to charge drug possession as a felony if the person arrested has a prior felony conviction or two or more drug convictions. Prosecutors can also seek felony charges if the amount of drugs in question exceeds the law’s definition of “personal use” amount. For example, more than two grams of cocaine or methamphetamine, more than one gram of heroin, and more than 40 pills of oxycodone would not qualify as “personal use” amount.

While law enforcement voiced support, state prosecutors came out strongly against the law.

Clatsop County District Attorney Josh Marquis, who spoke out against the law when legislators were considering it, complained that drugs possession was now being treated like shoplifting.

Marquis argued that prosecutors before could use the threat of a felony as leverage to force defendants to seek treatment. With the reclassification, Marquis says, that leverage is now gone.

“We know that people don’t seek treatment until they either bottom out or they have no choice,” Marquis said. “By making it a felony, it does threaten people with some consequences.”

Linn County District Attorney Doug Marteeny also opposed the law, saying that possession of dangerous drugs like cocaine, heroin, and methamphetamine was too serious a crime to be treated as a misdemeanor.

“To change the classification of this behavior from a felony to a misdemeanor is tantamount to telling our schoolchildren that tomorrow it will be less dangerous to use methamphetamine than it is today,” Marteeny wrote.

But the numbers don’t appear to support the theory — or Oregon’s previous practice — of locking up this group of offenders. Moreover, the prosecution of felony drug possession in Oregon skewed heavily toward over-prosecuting and over-punishing people of color.

A study by the Oregon Criminal Justice Commission found that blacks were convicted of felony drug possession at double the rate that whites were in 2015. The study also revealed that Native Americans five times as likely as whites to be convicted of felony drug possession.

A 2016 report from the Sentencing Project found that Oregon has the seventh-highest incarceration rate in the country for black males. Although blacks make up approximately two percent of the state’s population, they constitute 10 percent of the people who are locked up.

It remains to be seen whether, as state law enforcement has openly questioned, Oregon will provide the resources necessary to effectively move away from an incarceration-focused approach to a treatment-focused approach. And, further, whether the racial disparities that have marked Oregon’s treatment of drug offenses will persist.

Thanks to Jake Sussman.

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