Archie Kiel found guilty

July 25, 2010

Pot Farmer Archie Kiel Found Guilty
By Anne Stanton
Archie Kiel—whose story and photos in Northern Express triggered a
raid by the Traverse Narcotics Team nearly a year ago—was found guilty
in a jury trial for the manufacture of less than 20 marijuana plants.
The normal prison term for the charge is four years, but the maximum
is double that for Kiel since he was convicted once of a drug-related
misdemeanor.  It could have been worse. He was originally charged with
more than 20 plants, which carries a maximum of 14 years.
Kiel remained upbeat in a phone interview from his Rapid City home.
“I don’t do negative, you know that. It’s all good,” he said.  “You’ve
gotta have blind faith and stay positive. Today is the first day of
the rest of your life, so take it forward. It took me years of
self-training and meditation, and it works.”
Kiel is hopeful an appeal will be successful. Otherwise his way of
life, with friends flowing into his home decorated with smiley faces,
donating ingredients for marijuana cookies and helping him process
cannabis oil for cancer patients, will come to an abrupt end.
Kiel’s attorney, Ross Hickman, plans to file a motion for a new trial
this week based on information shared by an 86-year-old man who sat on
the jury and was excused from deliberating on the case (13 jurors
heard the case; only 12 are needed to deliberate). He told marijuana
advocate Reverend Steve Thompson and others in the courtroom that the
jurors were talking among themselves prior to deliberation—a violation
of court rules.
“He came over and sat down and talked to us just before the jury went
into deliberation. He said the jurors had discussed the case amongst
themselves almost immediately and what they were discussing was that
nobody knew the law and they wanted a copy of the law. How are they
going to make the decision if they don’t even know what the law says?
That’s just wrong,” said Thompson, president of Michigan NORML and the
Benzie County NORML chapter.

INSIDE THE JUDGE’S CHAMBERS
Kiel arrived for the jury trial in a t-shirt and back brace for the
trial, which was attended by about 30 supporters from around the
state. At issue was whether he possessed more than the legal amount of
marijuana for himself and his four patients. Under Michigan law, the
authorized provider of marijuana—called a caregiver—can grow no more
than 12 plants per patient, who must obtain a medical marijuana card.
When Kiel was raided last August 13, he could only show police proof
of three medical marijuana cards. He had no cards for two other
patients—his son and another woman–but he presented proof of their
applications signed by physicians.
The police took 34 of the largest plants, and left him with 36 smaller
plants for the registered patients.
Under Section 4 of the Michigan Marijuana Law, a patient or caregiver
can’t be arrested, much less prosecuted, if they abide by the full
letter of the law—that is, they possess a caregiver or patient card,
are using the marijuana strictly for medicinal purposes, and possess
no more than what the law requires (2.5 ounces or 12 plants per
patient). A patient is considered legal 20 days after sending an
application into the state.
But there’s another section in the law, which is called an affirmative
defense (Section 8). It says that a caregiver or patient is allowed an
evidentiary hearing if they meet three conditions: They have a bona
fide relationship with a physician, they possess an amount of
marijuana that allows for an interrupted flow of medicine, and they
use marijuana only for medical purposes.

DEFENSE DENIED
Yet in Kiel’s two-day trial, July 15-16, his defense attorney was not
allowed to use the affirmative defense. Judge Janet Allen of the 46th
Circuit had rejected this argument in an earlier hearing in May when
Hickman filed a motion to dismiss the case.
She concluded, after reading the entire law, that Section 8
“nullifies” Section 4, which requires a caregiver card, according to a
tape of the hearing.
“Otherwise people could go to a physician, get that letter and be good
to go. I don’t think that’s a proper interpretation,” she said at the
hearing.
Allen decided to ban discussion of the affirmative defense in the jury
trial after a discussion in chambers with Hickman and Kalkaska
Prosecutor Brian Donnelly, out of sight of the courtroom and jury. She
told the Express after the trial that the chambers’ discussion is
taped and available to the public upon request. She said the
conversation was out of bounds to potential jurors, who sat in the
courtroom;  she didn’t want to have to dismiss them from the
courtroom.
But that confused and angered those in the courtroom who believed it
was a significant decision, made out of sight from themselves and
journalists. They also didn’t understand why the jurors couldn’t
receive a copy of the law.
 In fact, a judge is mandated to interpret the law for jurors,
explaining it in simple terms as dictated by standard jury
instructions. But the Medical Marijuana Law is so new it doesn’t yet
have jury instructions. Also, the judge has the prerogative of
instructing the legal team not to discuss certain aspects of the law.

SIMILAR RULING
A case with a similar ruling was recently heard by the state Court of
Appeals, involving an Oakland County couple, Robert Redden and Torey
Clark, who may each face a maximum of 14 year in prison. Police broke
down their door with a battering ram and seized 21 plants in March of
2009. The couple had written certifications from a licensed physician
for serious medical conditions, but neither had caregiver cards. The
Circuit Court judge ruled the couple wasn’t entitled to the
affirmative defense because it didn’t comply with the three provisions
under Section 4.
The Court of Appeals is expected to make a decision on this within the
next few weeks. The defense team obtained an affidavit from Karen
O’Keefe, a principal drafter of the Michigan law, who said the law was
written with two levels of protection—one for patients and caregivers
who comply with the full letter of the law, and a lesser level of
protection for those who fall short.
“The greater level of protection (Section 4) is meant for people who
are registered with the state and have no more than 2.5 ounces or 12
plants. We intended for them to be immune from arrest under state law.
The lesser level of protection was intended for people whose conduct
is not wholly covered by Section 4. For example, we meant for its
protection to extend to patients who may have a medical need for more
marijuana or who may not be registered. We intended for them to be
protected from being convicted, but not from being arrested, she said”
The purpose of the affirmative defense, she wrote, was to “prevent a
person with a serious illness and a doctor’s recommendation from being
incarcerated for using their medicine, which would be a waste of
taxpayer money and cause unnecessary suffering.”
Either way the Court of Appeals decides, it will very likely go to the
state Supreme Court for a final ruling, Mullen said.
“We are obviously awaiting the court of appeals decision because it
may very well decide Archie’s case,” Hickman said.

WHEN A PLANT IS A CUTTING
An important part of Kiel’s case involved a Michigan State University
botanist’s testimony that a “plant” has actual roots. Otherwise, it’s
considered a cutting. Kiel claimed that 21 of the 70 plants were
cuttings.
This ruling caused the jury to find him guilty of less than 20 plants,
but it will very likely result in the destruction of plants in future
medical marijuana arrests in order to ascertain whether a plant has
roots, Donnelly said.
“They’ll have to pull up all the guy’s plants, thanks to Archie, to
make sure we don’t end up with a claim they aren’t rooted. It’s really
sad. What am I going to say to the next Archie? What a shame,”
Donnelly said.
Donnelly applauded the guilty verdict, saying it was supported by the
evidence.  “I am not unsympathetic to the cause, but the way it’s
playing out, it’s a shabby business. It’s just too bad. They’re doing
a disservice to people who could benefit by this law.”
Bob Heflin, who leads meetings for the Traverse City Compassion club,
said taxpayers are the real losers in this case. Tens of thousands
were spent, including the helicopter fly-over, court staff, police
salaries, and ultimately imprisonment of Kiel for up to eight years at
$35,000 or more per year.
“For what?  So we can throw a guy in prison for less than 20 cannabis
plants which no one denies were being grown for medical marijuana
patients?  No wonder taxpayers are outraged and disgusted.  Michigan
voters should remember this case when they vote for judges and
prosecutors this fall,” Heflin said.