Last month, attorney Rob Corry estimated that prosecutors had wasted $100,000 in its failed pot prosecution of Josh Jones -- a case he felt should have never been taken to trial.
He sees similar prosecutorial wrongheadedness in the case of another client, Colorado Springs' Elisa Kappelmann, a licensed marijuana grower who's also been acquitted of pot possession and distribution charges. Why? He elaborates below.
"The whole thing started with flyovers from Homeland Security," Corry says. "The City of Colorado Springs' vice narcotics unit requested that this $7 million surveillance plane be flown down from the Canadian border so it could monitor the heat signatures of various warehouses in Colorado Springs."
Gear on the craft soon "identified the Beacon Street warehouse," Corry continues, "which included six separate suites of growers, none affiliated with each other."
Not that such a plane was necessary to inform authorities about the warehouse. "The strange thing is, the police knew a burglary had occurred and been reported at one of the suites," Corry notes. "It was the burglary of marijuana plants, and the police came and investigated -- so they saw the plants. But even with that knowledge, they still had to do a flyover, using a thermal-heat signature to determine if there were plants in there.
"That seemed like an extreme waste of taxpayer dollars, and the jury did care about that," Corry maintains. "Taxpayers who fund this stuff want to hear about it, and knowing about the waste did inform their decision."
After seeing infra-red images from the Homeland Security plane, law enforcers on the ground ran power records for the warehouse, discovering elevated usage. That was enough to justify search warrants for each of the suites and what Corry describes as "a full-blown SWAT team raid" on May 12, 2010. "They broke in the doors with a battering ram -- the whole drill we've seen in other cases. And then they started to prosecute these people," including Kappelmann. But she didn't simply roll over.
"Elisa had ample paperwork to justify the plant count she had," Corry goes on. "Even with six plants per patient, she and her boyfriend were well under the approved plant count." Kappelman had 22 patients total, and law enforcement counted 99 plants, a total Corry disputed because 22 of them were unrooted clones. However, Corry says, "even 99 was well under the amount they were allowed to have -- and one patient had a fifty-plant recommendation. We didn't even have to focus on that."
Problem is, the officer who working the case "was operating under the belief that the dispensary model was illegal until July 1, 2010," when HB 1284, the bill that set regulations for the medical marijuana industry in Colorado, went into effect six weeks or so after the raid. "But that was false. In fact, the opposite was true: If you were a business after that date, you were required to have been in operation before then -- so he had it precisely backward."
If that was true, why was the case prosecuted?
Page down to continue reading about the Elisa Kappelmann acquittal. Corry points his finger at 4th Judicial District Attorney Dan May, one of the state's most vocal medical-marijuana industry critics. "The DA's responsibility is to provide adult supervision to these law-enforcement officers and clear up their misconceptions," Corry allows. "But in this case, he was fully on-board with the political effort to undermine medical marijuana in Colorado Springs. And he did worse than compound the error: He tried to build the case around the alleged non-compliance with the requirement that a caregiver do more for a patient than simply providing medicine."
In Corry's view, "Elisa and Don McKay," the aforementioned boyfriend, "blew that one out of the water. They testified that they did everything for these patients, and many of the patients wrote letters to the prosecutors saying they did more, too."
Also important to the jury, Corry believes, was the decision by Kappelmann and McKay to "register their business as Southern Colorado Medical Marijuana LLC" -- a name that hardly seemed design to hide their activities from law enforcement. "That was on file with the Colorado Secretary of State, the Colorado Department of Revenue and the City of Colorado Springs' sales tax and licensing division" -- and later with the subsequently created Medical Marijuana Enforcement Division. "They never tried to deny anything or dance around it, which again brings up why law enforcement had to do a flyover when a simple check of the address would have shown what they were doing and where."
Armed with this information, the jury deliberated for six hours before exonerating Kappelmann of the two felony counts against her. And while Corry doesn't know if the amount spent in this failed effort actually topped the 100K he believes prosecutors burned through while trying to imprison Jones (the latter was tried twice, with one effort ending in a mistrial), he suspects the totals are similar.
Why didn't the DA's office bail out earlier? "I think there's a pride factor," Corry says. "When a prosecutor files a case, it's an uphill battle to get them to change their mind and realize they shouldn't have filed it. We succeed at that many times, and those cases don't necessarily make the news. But there's human nature from the prosecutor's side. They have a 95 percent conviction rate, so they're not used to losing, not used to folding."
If they did in cases like Kappelmann's, though, "they would save us all a lot of time and money," Corry continues. "The amount of time and effort that goes into prosecuting these cases is immense. But Elisa never believed she did anything wrong, and she always believed she was following the law. And she was. She fought it all the way, and she won."
We Believe Local Journalism is Critical to the Life of a City
Engaging with our readers is essential to Westword's mission. Make a financial contribution or sign up for a newsletter, and help us keep telling Denver's stories with no paywalls.
Support Our Journalism
Here's a video of Kappelmann right after the verdict, as originally shared by the Colorado Springs Independent.
Follow and like the Michael Roberts/Westword Facebook page.
More from our Marijuana archive: "Medical marijuana: State wastes $100K when caregiver beats rap?"