Marijuana: Is Denver adding charges to keep minor pot cases alive after Amendment 64?

After the passage of Amendment 64, we reported that Denver District Attorney Mitch Morrissey had called for a review of all pending pot cases that would be legal under the measure, with a bias toward dropping those unaccompanied by additional charges. Now, however, an attorney says a client accused of minor possession has been hit with a new count -- a move he sees as contradicting this policy and wasting resources.

The attorney spoke to us anonymously and asked that we refer to the incident in broad terms for fear that speaking out might negatively impact his client. So, generally speaking, here's what happened.

Several months back, the lawyer says, an adult was cited in Denver for minor possession of marijuana (he's said to have had less than a gram on his person), as well as possession of paraphernalia (a pipe). Because there were no other charges, the attorney and his client assumed the matter would be set aside, since neither of these actions will be against the law once Amendment 64 is signed by Governor John Hickenlooper on or before the first week of January.

Before long, prosecutors did indeed decide not to pursue these two counts. But because the individual was arrested while smoking in public, a new charge for this offense was added.

The attorney acknowledges that smoking marijuana in public will remain against the law even after Amendment 64 is signed. Indeed, the ACLU of Boulder's Judd Golden highlighted this particular issue in speaking about confusion among the public about what exactly A64 does.

"The public needs to know that Amendment 64 didn't legalize all marijuana-related activities -- and if someone is publicly consuming marijuana, that's still an offense," Golden told us last month. "Now, whether a charge of that nature would have much chance of being successfully prosecuted is another matter. It's hard to know if the public would appreciate the distinction between having a joint in your pocket or a lit joint in your hand, and I'd be surprised if convictions could be gotten very easily in the absence of aggravating circumstances. But even after Amendment 64 is signed, smoking marijuana in public will still be against the law in the same way that you can have a beer in your pocket but not drink it on the street corner."

Even so, the attorney referred to above sees the introduction of a smoking-in-public charge, for which his client was not cited at the time, as violating the spirit of the Denver DA's office announcement.

How does the DA's office respond?

Continue for more about an added charge in a minor marijuana possession case.   As you'll recall, DA Morrissey opposed Amendment 64, appearing at an October press event sponsored by Smart Colorado, the leading No on 64 organization, in the company of Arapahoe County Sheriff Grayson Robinson, Broomfield Chief of Police Thomas Deland and Vicki Ferrari, boardmember of the Colorado Drug Investigators Association (and former American Gladiators contestant). Afterward, Smart Colorado released the following quote from Morrissey:

"Amendment 64 would amend our overburdened Colorado Constitution and cause endless litigation. Amendment 64 will cost Colorado taxpayers money because of this litigation, and because it's a constitutional amendment it can't be fixed by the legislature. Drug policy does not belong in the Constitution."

Do these opinions imply that Morrissey is reticent to dismiss minor marijuana cases despite the post-election policy announcement? Denver DA's office spokeswoman Lynn Kimbrough rejects that theory.

"There's not necessarily a policy or practice to do that in every case," she says. "Every case will be decided based on its own facts."

Kimbrough notes that the DA's office doesn't directly prosecute such cases. "The City Attorney's Office handles lower-level petty offenses under a longstanding agreement with our office. The city attorneys are specially deputized under that agreement to prosecute offenses that are still violations of the state statute, as opposed to a city municipal offense."

With that in mind, she continues, "Mitch directed the City Attorney's Office to look at the facts of these cases" -- approximately seventy of them -- "and consider the charges" that would be legal under Amendment 64. "And if there were other charges or other circumstances, the City Attorney would consider dismissal."

In other words, "the city attorney would look at dismissing the cases where possession of less than an ounce by an adult would be the only charge. But it would not necessarily apply to other charges, such as public consumption. And we really wanted to get the word out that public consumption is still against the law."

Could this goal explain why the new charge was added?

"It's not uncommon to amend charges during different parts of the process to more accurately reflect the actual event," Kimbrough replies. "It would not be uncommon to have reviewed that case and seen that the possession charge and the paraphernalia charge were no longer appropriate, but a public consumption charge might be appropriate."

The attorney doesn't buy this explanation.

"If there was a good reason for that charge, which in my client's case is debatable, it would have been made originally," he says. "So why are they spending resources and finding ways to add charges? To me, it suggests that they are willing to spend prosecution dollars even if someone is only charged with less than an ounce. And that's unfortunate."

More from our Marijuana archive: "Marijuana: Denver DA Mitch Morrissey joins law enforcers denouncing Amendment 64."

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