A Highlands Ranch man who until last week made his living growing marijuana in the basement of his home walked into a courtroom wearing a tan prisoner’s jumpsuit Thursday, the first steps in what legal experts say could be a precedent-setting journey through the federal justice system.
After a routine hearing, a magistrate judge found there is probable cause for the drug-distribution case against Chris Bartkowicz to continue toward trial and set his bail at $10,000.
Bartkowicz, who was arrested Feb. 12 by Drug Enforcement Administration agents after they seized more than 200 marijuana plants that Bartkowicz said were for medicinal use, is the most high-profile person involved in medical marijuana in Colorado to face federal prosecution. He is also one of the only people nationwide to face federal charges since a Justice Department memo in October said federal agents should respect state medical-marijuana laws.
That convergence of circumstances — federal law, in which all marijuana is illegal, versus Colorado’s constitutional protection for medical marijuana — makes the case fertile legal ground. Bart kowicz’s attorney hinted during the hearing Thursday that little in the case would be routine.
“There are complex legal issues that haven’t been addressed in this state,” said the attorney, Joseph Saint-Veltri.
Saint-Veltri has declined to comment on the defense he intends to mount, but legal experts say it would be nearly impossible for Bartkowicz to claim a medical defense in federal court. In several federal cases involving medical marijuana in California, judges have blocked such testimony.
“Federal judges prohibit the defense from even uttering the words ‘medical marijuana,’ ” said Bill Piper, director of national affairs for the Drug Policy Alliance Network.
Such restrictions leave medical-marijuana providers exposed in court, said Kris Hermes, a spokesman for the group Americans for Safe Access.
“If you get prosecuted in federal court, it’s an all-but-guaranteed conviction,” Hermes said.
But two elements could add fresh legal intrigue to Bartkowicz’s case. The first is that Colorado’s legal protection for medical marijuana is written into the state’s constitution, whereas other medical-marijuana states have lower protection. Denver medical-marijuana attorney Warren Edson said that could give Bartkowicz a stronger argument that his prosecution violates states’ rights.
“We don’t really know,” Edson said. “It’s something we haven’t been able to argue in court yet.”
The U.S. Supreme Court, however, has ruled in a prior case that the federal government can regulate marijuana, even if it is grown, sold and used entirely in a medical-marijuana state.
The other wild card is the Justice Department’s October memo, which said the government wouldn’t target people in “clear and unambiguous” compliance with state medical-marijuana laws. Hermes said it is possible that defense attorneys could use the memo as ammunition in a federal case. Indeed, there is a defense called “entrapment-by-estoppel,” where defendants argue the government fooled them into breaking the law by leading them to believe what they were doing was legal.
But prominent California medical-marijuana attorney Bill Panzer said the memo likely doesn’t offer enough protection for that defense.
“All it says,” Panzer said, “is you might not want to go after a cancer patient.”
– Article from Denver Post.