City attorneys are one day into a controversial trial that is expected to last at least two more, with jurors ordered to not watch local news or read local media in the meantime. The furor isn't over a case involving murder, robbery or even drunk driving. This trial is about smoking pot in public and an alleged violation of the Colorado Clean Indoor Air Act — misdemeanors that carry maximum fines of a few hundred dollars and no jail time.
On January 29, Steve Berke, co-founder of the International Church of Cannabis, went on trial in Denver County Court. The city's attorneys charge that Berke and church co-founders Briley Hale and Lee Molloy threw a public party at the church on April 20, 2017, allowing those inside to smoke marijuana for a 4/20 celebration. Colorado state law bans "open and public" consumption.
The church founders don't dispute that there was smoking inside the church, but they argue that the event was a private, 21-and-up function, and therefore legal.
The case against Berke, who owns the church property, was recently split off from that of Hale and Molloy, and he switched attorneys. He's now represented by Rob Corry, while Hale and Molloy, who are scheduled for trial next month, are still represented by Warren Edson.
"This is going to be a little out of the ordinary. This one could go two days, maybe even three days," Denver County Judge Johnny Barajas told perspective jurors at the start of this trial.
Barajas had good reason to give the jury pool that warning. The case actually went to trial in February 2018, but so many jurors were excused by the defense and prosecution for a variety of reasons that it ended in a mistrial. Since then, the trial has been postponed at least three more times — but now at least Berke is finally getting his day in court.
Make that days.
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Undercover Denver police officers say they were able to enter the church's 4/20 celebration without an invitation, but the church's founders say those officers registered under false emails and misled the church's event staff; the trio wasn't cited until about a week after the 4/20 event. And Berke maintains that he never smoked in the church that day.
But Denver assistant city attorneys Casey Federico and Rebekah Watada argue that by allowing others to consume cannabis at what the city deemed a public event, Berke, Hale and Molloy were complicit in allowing others to break the law.
In opening arguments, Watada compared it to allowing teenagers to consume alcohol at your house, even if you didn't pour the drinks. She also offered an analogy to smoking pot at city-owned Red Rocks, turning around an example that came up last February before a mistrial was declared:
"If I'm at Red Rocks with my family, and someone hands their friend a joint or pipe, and that friend smokes it — is the person who gave them the marijuana complicit even though they didn't put that pipe to their friend's lips?" she asked.
While Edson represented Berke during the February 2018 trial, Corry was ready for the Red Rocks comparison, and responded that the city would be the responsible party under Watada's analogy. "If someone lights up a joint and smokes it [at Red Rocks], is the City of Denver complicit in that act?" he asked potential jury members. "Are we our brother's keeper? Do we have a duty as Americans to grab joints out of people's hands?"
But Corry introduced an even more powerful argument yesterday: a letter sent to his client by the Denver Department of Finance, confirming that the church is zoned as a residential property. Berke, who previously lived in the building, says that at least two people have resided there since he and his Elevationist religion group moved in; he plans to move back in, too.
"We have a pastor's quarters, kitchen and everything. We've always had people living there," he told Westword. Berke, confident and cheerful throughout the first day of trial, says the prosecution wasn't aware of the church's residential-property status. "They didn't know we were making this argument, and it surprised them," he said.
In fact, Federico and Watada objected to the letter being introduced, saying it was the first they'd heard of it.
Also promising to figure heavily in this case is Barajas's definition of "open and public," which he created himself in anticipation of the trial after referencing a Merriam-Webster dictionary and public and decency ordinances. Here it is:
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Openly means completely free from concealment: exposed to general view or knowledge.
Publicly means in a public place or where the conduct may reasonably be expected to be viewed by members of the public. Publicly also means in public, well known, open, notorious, common, or general, as opposed to private, secluded or secret.
After hearing that definition, Corry and Berke told Westword that the odds are good the jury will determine that the church's 4/20 event was private, and Berke will be exonerated.
The city has put almost two years and a lot of resources into the case, however. It's expected to call up to four Denver Police Department officers to testify as witnesses.
Depending on how the jury decides this case, it could affect not just the trial of Molloy and Hale, but the ultimate future of social pot consumption in Denver.