Appellate court orders new trial for Kiel

Region

July 19, 2012

Appellate court orders new trial for Kiel

BY BRIAN McGILLIVARY bmcgillivary@record-eagle.com The Record Eagle Thu Jul 19, 2012, 07:14 AM EDT

KALKASKA — The medical marijuana community welcomed a state appellate court ruling that reasserts users' right to a defense and lessens their burden of proof when charged with a crime.

The appellate court this week ordered a new trial for Archie Kiel of Rapid City, a registered medical marijuana caregiver who in 2010 was convicted of a drug crime for growing too many marijuana plants for his patients.

Kiel was ordered to serve two months in jail and pay a $5,000 fine, plus court costs.

The appellate court overturned Kalkaska County Circuit Court Judge Janet Allen's decision that barred Kiel's attorney from presenting the jury with an affirmative defense. An affirmative defense offers evidence that explains how the medical marijuana law allowed Kiel to legally grow more than the allowed 12 plants per registered patient.

"It's an incredibly important decision," said Traverse City attorney Jesse Williams, who may represent Kiel in a new trial. "Prosecutors and the courts were ignoring the plain language of the statute, that there was a defense available to everyone."

The ruling also validates medical marijuana cards as users' proof of medical necessity under the law. The decision will help eliminate the need for medical marijuana users to present a doctor at trial to testify why the drug was prescribed, said Matthew Abel, a Detroit attorney who specializes in marijuana law.

Kiel had been convicted of manufacturing a controlled substance after police raided his home and seized from 67 to 69 marijuana plants in August 2009. The raid came after the Grand Traverse County-based Northern Express ran a story about Kiel and others who grew and used marijuana.

Kalkaska prosecutors alleged Kiel grew more marijuana plants than allowed by the state's medical marijuana law. At the time of the raid Kiel had registration cards for three users, which allowed him to grow 36 plants.

Kiel said he also had two other users who were in the process of getting registrations; plus, 21 of the plants were "uprooted" and should not have counted toward the total.

In a unanimous but unpublished opinion appeals court judges E. Thomas Fitzgerald, Kurtis Wilder, and Christopher Murray ruled the trial court should have allowed Kiel to present evidence to the jurors that he had five, not three patients, and that the number of plants were not more than was "reasonably necessary" to service his patients under section 8 of the medical marijuana law.

Attorney Ross Hickman represented Kiel during the trial and said he was "not the least bit surprised" by the appeals court's decision.

"People have tried to complicate the situation and the law was clear," Hickman said. "Archie should have been able to use his affirmative defense."

Allen's ruling followed another appeals court decision at the time that limited the defense. The state Supreme Court recently overturned that ruling.

"That appellate decision caused about a year of erroneous decisions in courts all over Michigan, some of which have caused permanent and lasting damage to people who now have a felony record," Abel said.

Williams called what happened to Kiel "outrageous.

"He paid a $5,000 fine and spent 45 days in jail," Williams said. "His rights were ignored, and it was a huge waste of taxpayers' money."

Kalkaska County Prosecutor Kirk Metzger said the Kiel decision was straightforward and he won't file a further appeal.

Metzger didn't prosecute the original case, so it will take one or two weeks for him to review the case file to decide whether a new trial is warranted. He'll also weigh the time and effort necessary to pursue a new trial, particularly considering Kiel already served the maximum sentence possible, he said.

"I'm not going to make a hasty decision one way or the other," Metzger said.