"Open Season" on Marijuana

May 13, 2012

Marijuana advocates turn to grassroots campaign

Part two of a two-part story. Last week, the Express examined the case of Walter Sbresny, a medical marijuana patient who faces felony marijuana charges in Kalkaska County and might not be able to use his medical marijuana card-holder status as a defense at trial. This week’s story looks at the case of Archie Kiel, and the grassroots political efforts of Kiel and Sbresny.

Perhaps no county in Northern Michigan is better known for aggressive medical marijuana prosecutions than Kalkaska County.

Under the former county prosecutor, the late Brian Donnelly, medical marijuana patients who did not follow the letter of the law, as Donnelly saw it, could find themselves looking at serious charges and severe penalties, medical marijuana advocates say.

Donnelly died unexpectedly in January while cross-country skiing on the VASA trail, and whether Kalkaska remains a hotspot for marijauna prosecutions is anyone’s guess.

Jesse Williams, an attorney who specializes in marijuana cases and who tangled with Donnelly more than once, said the county’s reputation as a place where medical marijuana patients were aggressively targeted was deserved.

"I think the Medical Marijuana Act made it open hunting season for marijuana cases in Kalkaska," Williams said.

Two men who found themselves hunted are now working to make changes, however.

Archie Kiel, a medical marijuana activist who Donnelly prosecuted for delivery and manufacture of marijuana after his medical marijuana grow operation was profiled in the Northern Express, and Walter Sbresny, a former WKLT disc jockey who currently faces felony marijuana charges, have launched a grassroots effort to change the way marijuana cases are handled in the county.

GRASSROOTS CAMPAIGN

Kiel maintains Kalkaska County, at least while Donnelly was alive, had a reputation of being the most unwelcome in the state for marijuana users, whether recreational or card-carrying medical marijuana patients.

"Kalkaska County, under Brian Donnelly, was discussed in the (state) House of Representatives and the (state) Senate as the most restrictive marijuana county in the state," Kiel said.

Kiel and Sbresny have been working over the past year to change the system from the ground up to convince police and prosecutors to lay off medical marijuana growers.

They started their campaign at the township level, where they’ve spoken out against moratoriums on medical marijuana.

They believe the best way to win support for medical marijuana is to start from the ground up.

"People have been so brainwashed for so long by the federal government, they just need to be educated," Kiel said.

They’re attempting to identify sympathetic county commission candidates and others to support. They’ve selected a candidate for prosecutor to support, Scott Isles, who says he will run with a pledge to lay off medical marijuana patients.

"We have candidates running for every office and we’re trying to find a judge candidate right now," said Sbresny, referring to a judge who ruled against him.

Kiel said medical marijuana supporters and anti-prohibitionists have clout in Kalkaska.

"Every single time our group has supported a candidate in our county, they’ve been elected," he said.

Their political clout has limits, however. They had planned to march in the Trout Festival parade on April 28, until they were told they would not be welcome.

"They decided that they didn’t want to allow that kind of entity into the parade at all, they said it’s a family parade," Sbresny said. "It’s funny. Over 70 percent of the people in this county voted for the (medical marijuana) law to be enacted."

Ultimately, the group marched in the parade by way of a technicality. They entered as a Michigan Department of Transportation Adopt-A-Highway group, and Sbresny said they were well received.

"We’re not a radical group," he said. "We’re just an informative group and we’re part of our community."

Kiel said the group still had to slip into the parade inconspicuously, because they were told the t-shirts they wore emblazoned with marijuana leaves were not welcome, but once they marched, they were a hit.

"We were congratulated, we were thanked, we had a bunch of people come out and get their pictures with us," Kiel said.

CANDIDATES FOR PROSECUTOR

Michael Perreault, an assistant county prosecutor who has taken over some of Donnelly’s cases and who is running for prosecutor as a Republican, said he does not believe the county deserves a reputation for being aggressive when it comes to marijuana cases.

He doesn’t believe the record shows Donnelly targeted medical marijuana users. He said he could only think of two medical marijuana cases that came through his office in the two years he’s been there – Kiel and Sbresny.

Perreault said he couldn’t say whether Kalkaska County was more or less aggressive with marijuana cases in general than other counties.

"I haven’t practiced in other counties.

I just wouldn’t know how other counties handled it," Perreault said.

He said he doesn’t plan to be overly aggressive with medical marijuana cases. If elected, he said he would merely follow the law.

Cases currently pending in the Court of Appeals and at the Supreme Court to be decided this summer will likely spell out guidelines for medical marijuana prosecutions for the near future.

"We’ve got to support the law," Perreault said. "If the Supreme Court rules one way or the other, I’m going to support the orders of the Supreme Court, however it comes out."

Isles, who recently returned to Kalkaska County from Midland and plans to run for prosecutor as an independent, has the support of the medical marijuana activists. Isles said he opposes medical marijuana prosecutions.

When people in Kalkaska learn he is running for prosecutor, he said the first thing they ask him about is medical marijuana.

"I know there’s a lot of people who have been very unhappy about what’s been happening," Isles said.

Isles says he has personal experience that leads him to support medical marijuana – he had a sister with cancer who was able to extend her life beyond doctors’ expectations through the use of medical marijuana.

Isles has been a criminal defense attorney in Midland for 19 years, but he said he grew up in Kalkaska and graduated from high school there.

"The position of prosecuting attorney is not to bring charges and try cases and seek convictions, the real reason you hire someone for this job is to use their discretion in terms of when to bring cases and when not to," Isles said. "The problem we have is that people in law enforcement have viewed marijuana as an illegal recreational drug, and they are not flexible enough of mind to accept the fact that it is now medication."

Perrault has filed to run for prosecutor and Isles has not. As an independent, Isles has until mid-July to file to get on the general election ballot.

JAIL NEARLY KILLED HIM

Sbresny faces felony marijuana charges after police raided his home and found close to 200 marijuana plants. He says that number is misleading because most of the plants were tiny and not viable, and the actual amount of marijuana he possessed, he maintains, was insignificant. Police and prosecutors disagree and Sbresny faces trial on Sept. 10.

Kiel’s case has already gone to trial, he’s already been found guilty, and he’s already served his jail sentence, but he is still fighting the prosecution of his case. It is currently pending in the state Court of Appeals.

"I’ve served the sentence, but I still can’t possess firearms, I can’t hunt, I can’t be a caregiver, I’m a felon," Kiel said. "I also can’t file a lawsuit until this is finalized."

Kiel’s case began in 2009 when his home was raided after he talked about his medical marijuana grow operation in an article in the Northern Express. He was charged and convicted of possessing more marijuana than what is allowed under Michigan Medical Marijuana laws.

Kiel still suffers from injuries incurred when he fell through a picture window in 1994 and he believes use of medical marijuana has saved his life in the years since.

"I don’t grow pot, I grow medical marijuana," he said at his 2010 sentencing. "I’m a medical user who uses it to live."

At trial, Kiel and his attorney were prohibited from using a medical marijuana defense after Circuit Court Janet Allen agreed with an argument from Donnelly that defendants who can be shown not to have followed the MMMA are not entitled to use the act in their defense.

The issue of when defendants can use the MMMA as a defense is now before the state Supreme Court and is expected to be decided this summer in the case of People vs. King. Kiel’s case is on hold in the Court of Appeals awaiting the outcome of King, because his case hinges on whether he should have been allowed to use an affirmative medical marijuana defense.

Kiel served 42 days in jail of a fivemonth sentence. He was released after he paid a $5,000 fine and the remainder of the sentence, less time off for good behavior, was suspended.

Kiel said due to lingering health issues, jail nearly killed him.

"My whole case, from beginning to end, was illegal," Kiel said. "You cannot target a patient. You cannot."

Kiel, whose been a self-described marijuana activist since 2007, runs a compassion club and he travels around the state to help and support people who face prosecution for medical marijuana use.

He plans to attend a marijuana legalization rally on May 15 at the state capital in Lansing sponsored by a group for which he volunteers, the Committee for a Safer Michigan.

ECLECTIC MIXING BOWL

Donnelly’s death was an unexpected shock to the county. He was mourned by supporters and non-supporters alike.

And his death might have taken some of the fire out of Sbresny’s and Kiel’s campaign to reform the way officials treat medical marijuana patients in the county because their campaign had been focused on removing Donnelly from office.

At the time, Sbresny and Kiel were in the thick of mounting a recall campaign against the prosecutor.

Sbresny had painted on his white 1992 GMC Sierra pickup truck, in big, bold letters, "RECALL DONNELLY."

With Donnelly’s death, Sbresny painted over the message.

"I let it go one day, sitting in my driveway," Sbresny said.

Kiel said the recall campaign ended immediately and the petitions against Donnelly were destroyed.

"That was the end of it," Kiel said. "He died. There was no reason to badmouth him."

Now Sbresny has decorated his truck with messages in favor of marijuana legalization and opposed to prosecution of medical marijuana users. He’s also got two anti-Obama bumper stickers on the back of his truck.

The mixture of seemingly liberal and conservative viewpoints is appropriate for the pro-medical marijuana campaign in the county, which has become an eclectic mixing bowl of political messages.

"The people that are in our movement out here, they’re really conservative people who just want to be left alone to be dealing with themselves," Sbresny said.

When the marijuana activists marched in the Trout Festival parade espousing the legalization of pot, Sbresny said some of them also marched in support of Gary Glenn, a right-wing Republican candidate for US Senate who opponents describe as an anti-homosexual crusader. Glenn has made opposition to civil rights for homosexuals a focal point of his campaign.

Kiel said marijuana legalization attracts members of the Tea Party along with members of the Occupy movement, people at opposite ends of the political spectrum.

"It’s brought out a lot of groups that are just plain pissed off at government," Kiel said.

Kiel said he doesn’t align himself with one political group, but he said he believes in the Constitution, which, despite what courts say, he believes prohibits the government regulation of marijuana.