Med. Marijuana Enforcement Division vs. Corey Donahue ruled mistrial

Westword cover boy Corey Donahue has been in the news of late due to his affiliation with Occupy Denver. But before the movement got underway, he was best known as a pot activist who, this summer, was accused by the Medical Marijuana Enforcement Division of stealing documents without paying for them. He appeared in court this week on the charge -- but the procedure ended in a mistrial.

As William Breathes detailed in the August post linked above, Donahue asked for MMED documents in June -- a request that wasn't completed until late July, for reasons that are very much in dispute. Donahue arrived at the MMED offices on July 22, where department reps say he was told he had to pay for the documents in order to take them with him. Instead, he grabbed the paperwork and walked away.

Donahue's take? He claimed MMED violated his rights by not responding to his document request within a designated time period and argued that the department should have waived the fee because he needed them for research reasons. He added, "Why should I have to accommodate them when they have already not already accommodated me and violated the law?"

The case finally made its way into court this week, with medical marijuana attorney Rob Corry representing Donahue -- but a mistrial was declared, at Corry's request, during the jury-selection process. What happened?

"In the process of picking the jury, one of the audience members was filming -- and a juror complained about being filmed," Corry says.

The audience member in question was another marijuana activist, Miguel Lopez, Corry confirms; he was shooting video using his phone.

Why request a mistrial? "It was pretty clear the audience member doing the filming was affiliated with Mr. Donahue," Corry notes -- meaning the action could have prejudiced the juror against his client by association. Corry adds that Lopez "didn't do it at my behest, or at Mr. Donahue's behest. It was an honest mistake. So I moved for mistrial because of the possibility that my client's right to a fair trial had been compromised. Our goal is to make sure the trial is based on the evidence, not on other things."

This turn of events doesn't mean Donahue will skate on the charge. A new trial date has already been set for January 18. However, Corry wonders why the matter is being adjudicated in the first place.

"I'm not sure they have the evidence to convict him of any criminal offense," he says. "He has a right to any public documents within a government agency, and government agencies routinely waive copying fees for nonprofit requests -- and I don't think anyone's claiming Corey Donahue is a for-profit business."

Besides, he continues, "they never invoiced him for the copies -- and when Mr. Donahue made an identical request to the governor's office, they responded that there were no documents that fit his request. They said they didn't exist."

On a similar subject, Corry raises another of Donahue's gripes against the MMED -- namely that e-mails sent by former Department of Revenue supervisor Matt Cook were deleted shortly before he left his post with the agency. In September, Donahue charged that this action violated the Colorado Open Records Act, and while the division denies this accusation, Corry isn't so sure. "If MMED is destroying records under the Open Records Act, it would be interesting if that comes out as a result of this trial," he says. "They had no right to destroy a single e-mail, and if that's shown to have happened, it's an intentional circumvention of the act.

"If they're trying to convict Corey Donahue of some petty offense, they'll have to explain if they destroy documents," he goes on. "And if they do, he hasn't stolen anything, because they would have been destroyed anyway. They have to decide which way they go -- and they can't have it both ways."

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More from our Marijuana archive: "HempCon 2011: What do fake orgasms have to do with medical marijuana?"

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