Prosecutorial misconduct is nothing new. Ask any criminal defense attorney worth her salt, and she’ll tell you that official misconduct is a fact of life and that the government honors the Constitution more in the breach than the observance.
What’s rare, however, is for an appellate court to do much other than label the error “harmless,” uphold the conviction, and leave the offending prosecutor unnamed.But not in Michigan, which at least calls the prosecutor out.
Paul Heminger suffered from chronic pain in his shoulders and neck resulting from stage-four degenerative arthritis in his shoulders. He tried hydrocodone, but found that while it helped his shoulders somewhat, it didn’t relieve the pain in his neck.
It’s not clear what drew law enforcement attention, though Heminger had previously suffered a marijuana-related conviction.
Nor was he entirely in the clear: the evidence at trial could reasonably be construed to suggest that Heminger grew more than he needed.
The appellate court recognized the legitimacy of the prosecution based on those facts and dismissed several of Heminger’s other arguments. Instead, the court ruled that it was “clearly and thoroughly improper” for the prosecutor to embark on what it characterized as “political commentary” and a “personal diatribe” against Michigan’s Medical Marijuana Act.
Prosecutor Karen Bahrman had argued:
Now, because it – it’s got to be obvious to you how we – we meaning law enforcement – feel about the Medical Marijuana Act, I want to start by saying that we don’t object to the idea of giving desperately ill people an escape from their suffering, not at all. We object to the – the act as drafted. And it – it really epitomizes the problem with legislation being drafted by a special interest group, as opposed to duly elected legislatures, as much as we all love to hate them.
Clearly, [the MMA] is being abused principally by a lot of recreational users and a few physicians just exploiting that catch-all condition of – of chronic pain. And, you know, whether it’s appellate courts or the legislature, a few bandaids have been applied, such as the relatively new definition of what a bona fide physician/patient relationship is. And that has hopefully stopped the signing of these certificates en masse at seminars like the one attended by Mr. Heminger at the Landmark Inn. What really needs to happen is for the ultimate certification decision to either be taken out of the hands of private physicians, or for there to be a legal source of marijuana. And that – that just seems like it has insurmountable obstacles.
And that’s the most important point I can make here. You know, he – he wants you to believe this is all tied to yield. It’s really tied – the math all depends on his own estimate of how much he needs. And to allow users to – to do that renders this entire act much more meaningless than it is to start with.
Barhman also argued that medical marijuana activists attract violence to the community:
We’ll also say that the – the attitude of, say, the Alger Hemp Coalition is just a – a study in mixed messages. You know, they do nothing to support the government services they want, and have nothing but criticism for the government services they don’t want. We’re trespassers and tramplers of their rights right up until they need us to protect them from the violence that they attract to the community. And their hostility towards anyone who disagrees with their vision for the country where everybody can walk around stoned is also kind of remarkable.
But all that said, you are unfortunately not here to judge the Medical Marijuana Act or the Alger Hemp Coalition. You are just here to judge this particular defendant on these particular facts. And in deed [sic] all of us – all any of us can do is just handle one case at a time until something changes.
The court rightly found that these “unfounded, irrelevant and inflammatory statements” effectively encouraged the jury to convict Heminger rather than apply the law. Rather than find that this was “harmless error” as many other courts might, it found the error was “plain error” affecting the fairness of the trial. Rather than act with the “responsibility of a minister of justice” instead of a mere advocate, Barhman’s argument was “misconduct [which] calls into doubt the integrity of the process.”
As a trial lawyer, I understand that sometimes even lawyers passionately arguing their case get carried away. But Barhman’s argument doesn’t seem to be the result of passion, but reflects a fundamental ignorance of the founding principles of the republic, not to mention basic principles of law, and an attitude that the government can do whatever it wants, heedless of the will of the People.
Unfortunately, even in states that have legalized the use of marijuana (either medically, or recreationally), this attitude is more the norm than the exception for law enforcement and prosecutors alike.