MMJ: Voters want it, prosecutors don’t
There’s a strange disconnect between Michigan’s citizens and the law enforcement officials they employ. As voters have expressed increasing support for cannabis legalization, police are arresting more and more consumers. In the past five years, 22 Michigan cities have voted to decriminalize cannabis. Michigan voters passed the state’s Medical Marihuana Act (MMA) by a wide majority in 2008. Since then, more than 180,000 patients have registered for a medical marijuana card. 33,000 residents are registered as caregivers, which means they may grow medical cannabis for patients. Yet between 2008 and 2014, cannabis arrests increased statewide by 17 percent.
Max Lorincz is among the 92 percent of Michigan MMJ patients who list severe and chronic pain as a qualifying condition. Chronic pain from two herniated disks put Lorincz on an opioid regimen so heavy that he suffered kidney failure. In 2009, a doctor recommended he try medical marijuana instead. Since then, he’s used cannabis to wean himself off opioids and improve his health.
Although medical marijuana enjoys widespread support here, many law enforcement officials have never accepted it. In 2012, Michigan Attorney General Bill Schuette began raiding and shutting down dispensaries, but he never questioned the right of patients to possess medicine. Which is why Max Lorincz didn’t expect to be charged with a crime. He had his medical marijuana card. And he possessed far less than the legal limit.
Local Decriminalization in Michigan
For three months, Lorincz remained uncharged. Four-year-old Dante, meanwhile, remained trapped in the state’s foster care system. The state of Michigan had, in effect, kidnapped the couple’s son. Dante was assigned to Bethany Christian Services, a faith-based organization known for its conservative culture. The agency’s president recently wrote that “we [at Bethany] adhere to the values and beliefs of our faith when serving.” Those beliefs include prohibiting adoption by same-sex couples and, apparently, refusing to allow a parent to legally medicate with cannabis. In order to see his son in weekly two-hour supervised visits, Lorincz had to stop taking medical cannabis and pass drug tests showing no cannabis use. To do that, he was forced to return to opioids.
Then in early January 2015, out of the blue, Lorincz was arrested and charged with misdemeanor marijuana possession. For what? he asked. For the vial Deputy Gedeon found back in September, he was told.
Since when did a registered medical marijuana patient merit a two-year sentence for Spice? How was that even possible?
Lorincz was confused. “Have these people not read the Michigan Medical Marihuana Act?” he wondered.
Most cases like this never to go trial. The defendant usually pleads to a lesser charge and moves on. Lorincz’s public defender advised him to cut a deal. But Lorincz refused to plead.
“I was willing to fight because I hadn’t done anything wrong,” he told Leafly.
Here’s the key moment in the case, one that would grow in significance only in hindsight. When Lorincz refused to plead, Ottawa County Prosecutor Ronald Frantz threatened to charge him with possession of synthetic THC, a felony that came with a two-year prison sentence.
The threat baffled Lorincz. Since when did a registered medical marijuana patient merit a two-year sentence for K2 or Spice? How was that even possible?
The answer could be found in the files of the Michigan State Crime Lab.
Crime labs in the public eye
Crime labs aren’t in the perfection business. The past decade has witnessed a surge of scandals involving falsified reports, tainted studies, and missing evidence. Last year Slate legal affairs writer Dahlia Lithwick chronicled the problem in a piece titled, “Crime Lab Scandals Keep Getting Worse.”
Lithwick noted the key role played by the war on drugs:
“Over the past decade, crime lab scandals have plagued at least 20 states, as well as the FBI. We know that one of the unintended consequences of the war on drugs has been a rush to prosecute and convict and that crime labs have not operated with sufficient independence from prosecutors’ offices in many instances… Years of deliberate falsification have ruined thousands of lives.”
The Michigan State Crime Lab, a division of the Michigan State Police Department, maintains a number of labs across the state. Each lab handles evidence from many different police agencies.
After Deputy Gedeon bagged Max Lorincz’s medicine vial on Sept. 24, he transferred it to the Michigan State Police Forensic Laboratory in nearby Grand Rapids. There it remained in storage until Dec. 29, when William Ruhf, a senior forensic scientist, finally got around to analyzing it.
Using a gas chromatographic mass spectrometer, Ruhf identified the presence of THC in the residue. On his report, he wrote “Delta-1 THC, origin unknown.”
That designation puzzled Michael Komorn.
Michael Komorn, defense attorney
Komorn is a criminal defense attorney based in Farmington Hills, outside Detroit. As president of the Michigan Medical Marijuana Association, he’s a leading expert on the state’s MMJ law. He was alerted to Max Lorincz’s case by Dana Chicklas, a reporter for Fox 17 News in Grand Rapids, who discovered the story and refused to let it die.
Komorn thought Lorincz’s predicament might have implications for many of his clients, as well as 180,000 patients statewide. He offered to take on Lorincz’s case pro bono.
Komorn had never seen an MMJ patient hit with a felony synthetics charge. “That seemed very strange to me,” Komorn told Leafly. “I’d never had a case where the prosecutor didn’t charge for marijuana.” In other words, it seemed to Komorn that the state was arguing that Lorincz’s marijuana wasn’t actually marijuana.
At a preliminary hearing in April 2015, Komorn finally got a chance to unravel this Kafka-esque tangle. Questioning William Ruhf, the scientist who analyzed the BHO smear, Komorn asked him why he wrote “origin unknown” on his report.
Defense attorney Michael Komorn suspected the “policy change” could put the state’s 180,000 medical cannabis patients at risk. (Courtesy of Michael Komorn)
“That means that I do not know where [the THC] originated from,” Ruhf said, according to the court transcript. Because it’s possible to synthetically manufacture THC, Ruhf added, he couldn’t say for certain that the THC found in the residue originated in a cannabis plant.
Isn’t there some way you could test that? Komorn wondered.
No, said Ruhf. “There is nothing to my knowledge scientifically that can be done to demonstrate a simple molecule of THC, whether it originated from a plant” or a synthetic process. “It all looks the same chemically with respect to the instruments and how it’s analyzed.”
Because of a recent policy change, Ruhf said, lab analysts add the phrase “origin unknown” in cases where they don’t see any plant material. Ruhf called it “a clarification.”
Komorn didn’t get it. “You’ve got the same material, same person doing the test, same variables,” he recalled. “Why did this policy change?”
With Lorincz now facing two years in prison and the permanent loss of his son, Komorn sensed that this case might be an indication of a much larger and more troubling scheme. Prosecutors were no longer playing by the rules established by voters and the courts. If this change had become policy, Michigan’s 180,000 medical marijuana patients and 33,000 caregivers were now risking felony prison time—and none of them knew it.
Playing a hunch, Komorn filed a Freedom of Information Act request asking for all State Crime Lab emails related to a marijuana policy change.
What he received, weeks later, astonished him. “I thought that some manipulation might have taken place,” Komorn recalled. “But not to the extent revealed in the emails. They took people who wouldn’t normally be arrested, and made them subject to felonies and forfeiture. And in Max’s case, it led to the loss of his son.”
Internal emails tell the tale
Michaud’s email directed lab staff to consult with Ken Stecker, a lobbyist for the state’s prosecutors, who would rule on cannabis policy.
So what happened?
It had to do with a law the state legislature passed in late 2012. Concerned about the spread of K2, Spice, and other drugs that contain synthetic THC, state lawmakers enacted tough new penalties against the compounds. The law had nothing to do with medical marijuana. But within months, police officials and prosecutors realized that if they could legally decouple THC from the cannabis plant, they could charge medical marijuana patients with possession of synthetics under the new law—and destroy the legal protections afforded to patients under the Michigan Medical Marihuana Act.
That is, law enforcement wanted to treat any cannabis product that didn’t appear in plant form as the legal equivalent of Spice or K2. And they wanted to do secretly.
So the Michigan State Crime Lab quietly instituted a new policy. If no actual cannabis leaf was present, lab analysts were told to record the drug as “THC—origin unknown.” That “clarification” allowed prosecutors to charge medical marijuana patients with felony possession of synthetic THC.
Though it represented a radical change in the law, few outside the lab were aware of the new policy. The public was never informed. State legislators were never made aware.
Komorn couldn’t believe his eyes. A traffic safety specialist for a lobbying group had become the secret cannabis czar of the Michigan State Crime Lab.
Inside the lab, some balked at the change. In a May 2013 email uncovered by Komorn, an analyst named Scott Penabaker, who worked at the lab in Northville, told colleagues that he found it “highly doubtful than any of these Med. Mari. products we are seeing have THC that was synthesized. This would be completely impractical. We are mostly likely seeing naturally occurring THC extracted from the plant!”
The result, Penabaker wrote, was that “you now jump from a misdemeanor to a felony charge.”
What’s more, Komorn discovered, this new policy didn’t even originate from within the state’s law enforcement agencies.
On July 25, 2013, Capt. Greg Michaud, Director of the Michigan State Police’s Forensic Science Division received a memo from a well-known cannabis prohibitionist named Ken Stecker. Stecker’s email claimed that edibles made with cannabis extracts did not qualify as “usable marihuana” under the Medical Marihuana Act.
This email pertained to another case, but it laid the legal groundwork for the prosecution against Max Lorincz. “By possessing edibles that were not ‘usable marihuana’ under the MMMA, but that indisputably were ‘marihuana,’ [the defendant] failed to meet the requirement for section 4 immunity,” Stecker wrote.
“Section 4” of Michigan’s medical marijuana law spells out the legal protections afforded to patients. By tweaking its definition of “usable marihuana,” Stecker implied, the crime lab could effectively scuttle those protections.
This was yet another odd turn in the increasingly bizarre war against Michigan’s medical marijuana patients. Ken Stecker is not an elected official. He’s a $105,000-a-year traffic safety specialist for PAAM, the Prosecuting Attorneys Association of Michigan, a trade association that runs education programs and lobbies the legislature on behalf of county prosecutors.
Stecker’s power and influence belies his job title. For years he’s been Michigan’s prohibitionist-in-chief. Since 2008, he’s given dozens of presentations around the state denouncing medical marijuana. During testimony before a legislative committee last year, a PAAM official described Stecker as “our leading individual as far as the technical nature of the medical marijuana act is concerned.”
Less than an hour after receiving the email from lobbyist Ken Stecker, Crime Lab Director Michaud relayed an order to regional crime lab managers around the state that turned Stecker’s proposal into official policy.
“In my meeting with PAAM today,” Michaud wrote, “it was decided that any questions regarding law interpretation (e.g., recent controlled substances cases) will be directed thru the applicable Technical Leader who will then reach out to Mr. Ken Stecker for a proper interpretation.”
Michael Komorn could scarcely believe what he was reading. Thanks to Michaud’s order, a traffic safety specialist for a trade association had become the clandestine cannabis czar of the Michigan State Crime Lab.
More scientists push back
By early 2014, Komorn’s trove of FOIA’d emails would show, crime lab analysts were increasingly worried about the ethical implications of Stecker’s policy. Bradley Choate, supervisor of the Controlled Substances Unit in Lansing, voiced his concern. “I disagree with the changes,” he wrote in an email. “When THC is identified in a case, [lab analysts have] two choices.” They can, he explained, identify it as marijuana, which is a misdemeanor. Or they can identify it as synthetic THC, a felony. “There is not a third choice.”
Though lab analyst William Ruhf would later testify that it was impossible to differentiate between natural THC and synthetics, Choate noted that this was simply not true. In fact, it could be done with a few easy tests. The crime lab regularly purchased synthetic marijuana reference standards from Cayman Chemicals in Ann Arbor, in order to confirm that K2 or spice obtained in an arrest was, in fact, synthetic. “If we couldn’t purchase standards, we wouldn’t be able to make the (synthetic) identification,” State Crime Lab analyst Kyle Ann Hoskins told the Detroit Free Press in 2012.
One lab analyst testified that it was impossible to sort natural THC from synthetic. Another analyst noted that was simply not true.
In addition, the presence of other cannabinoids like CBD or CBN in the same sample “indicates that the substance is from a natural source,” Choate noted.
That is, the Michigan crime lab possessed tests to determine the THC’s origin in seized materials. But under the Stecker policy, analysts were forbidden from reporting anything beyond the presence of THC. By doing so, they handed prosecutors a powerful weapon they could use to convince defendants to plead quickly to a marijuana charge: the threat of a felony synthetics charge.
The stakes were clear. A lab report adhering to the Stecker policy “could lead to the wrong charge of possession of synthetic THC and the ultimate wrongful conviction of an individual,” wrote lab analyst Choate. “For the laboratory to contribute to this possible miscarriage of justice would be a huge black eye,” he added.
This wasn’t a squabble over a minor policy tweak. In 2014, Michigan law enforcement agencies made more than 23,000 cannabis arrests. Forensic Science Division Director Michaud once estimated that 40 percent of the crime lab’s $60 million annual budget was spent on cannabis testing.
Choate’s colleagues tried to craft an artful phrase that would carry out Stecker’s policy without violating their own ethical boundaries. One analyst suggested “The origin of the THC identified whether from a plant extract (marihuana) or a synthetic source could not be determined.”
Which is technically true. But that’s like reporting that it “could not be determined” if a homicide suspect touched the murder weapon, while concealing the fact that the crime lab chose not to dust for fingerprints.
Bradley Choate, Crime Lab Controlled Substances Unit Supervisor
On March 15, 2014, Choate’s superiors effectively quashed the discussion. John Bowen, crime lab director Greg Michaud’s chief of staff, declared that the policy had been decided, period. For medical marijuana patients in Michigan, no leaf meant no immunity.
“Is it likely that someone went to the trouble to manufacture THC and two other cannabinoids, mix them up, and bake them into a pan of brownies?” Bowen wrote. “Of course not. That doesn’t mean we should change the results to show we found Marijuana. We didn’t, because Marijuana is a plant, and we didn’t find plant parts.”
“I do not intend to bring Ken Stecker in to explain this to our drug unit,” Bowen wrote testily; “I think everyone understands the issue pretty clearly.”
Bowen gave marching orders to the crime lab analysts. “If we found THC, with no other plant parts,” he wrote, “we should report it as THC, not Marijuana.”
And there the policy remained, up to and past September 24, 2014, the day Max Lorincz called 911 to attend to his wife Erica on the kitchen floor.
Lab analyst Bradley Choate found the false-synthetics policy at odds with the lab’s ethics training.
Bowen’s orders settled the policy question, but it didn’t shield lab analysts from the risk of perjury.
In late January 2015, not long after Max Lorincz’s arrest, analyst Bradley Choate reiterated his concern that reporting THC instead of
marijuana, “would lead prosecutors to charge people with synthetic THC. This appears to be what the agency wants.” Choate worried that lab analysts might be forced to lie if they were called to testify in one of these cases. “The question I would pose to all of our analysts is how they would answer questions on the stand.”
A few weeks after Choate sent that email, his colleague William Ruhf found himself on the stand answering questions from Max Lorincz’s lawyer.
Ruhf stuck to the playbook. He said he didn’t know the origin of the THC, and didn’t have the means to determine whether it “originated from a plant or from the manufacture of a synthetic route synthesis, if you will, within a laboratory. It all looks the same chemically with respect to the instruments and how it’s analyzed.”