International Church of Cannabis co-founder Steve Berke was found guilty earlier this month on public cannabis consumption charges. The verdict was supposed to be the culmination of nearly two years of legal battles with the City of Denver, and the drawn-out fight resulted in a mere $50 fine for Berke, who was convicted of two misdemeanors.
But Berke just came out swinging.
On Tuesday, February 12, Berke's attorney filed a motion for a new trial in the case on the basis of jury misconduct, pointing to an incident that occurred outside the courtroom shortly after the initial verdict on February 1. A crying juror came over to Berke's attorney, Rob Corry, and told him that "I fought my ass for him, but the other jurors didn't listen. ... The whole time we were [deliberating], everyone else said, 'Guilty.'"
Hearing the juror's remarks, Berke said he was considering filing for a mistrial. He wasn't bluffing.
According to Corry's motion for a new trial, the juror who approached him after the trial filed an affidavit on Thursday, February 7, claiming that "the jury had discussed the facts of the case as early as Day 1 of the four-day trial, and that individual jurors had formed impressions and reached conclusions in violation of the Court's instructions given multiple times. Such affidavit is corroborated by another sworn affidavit of a witness to the trial and to the statements of the juror."
Judges traditionally prohibit jurors from talking about the case or reading media reports pertaining to the trial before it ends. In his motion, Corry claims that the court clerk heard the referenced discussions, and reprimanded the jurors for violating a court order. However, the affidavit also notes that Corry was unsure whether Judge Johnny Barajas was aware of the jury's discussions.
According to the motion, the jurors also had improper contact with the court bailiff. "Furthermore, improper communications between the jury and bailiff during deliberations have been found to have a reasonable possibility of affecting a jury verdict and thus warranted a new trial," the document reads.
The Denver City Attorney's Office could not be reached for comment on the case.
Berke was convicted of public pot consumption and violating the Colorado Clean Indoor Air Act during the church's inaugural 4/20 event in 2017, at which undercover Denver police officers say they were able to freely enter the consumption-friendly portion of the celebration. Berke and his attorneys argued that the consumption portion of the event was private and required an invitation to get inside.
During the trial, much was made of the different definitions of public and private. There was also the suggestion that entrapment might have been involved in the police actions.
That issue is likely to come up when church co-founders Lee Molloy and Briley Hale go on trial. They were originally part of Berke's case, but their case was split off last year. The two had been scheduled to go to trial on Tuesday, February 12, but their court date was postponed when Berke decided to dispute his verdict.
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