Medical marijuana search & seizure: Rob Corry on appeal of disputed Frank Marzano verdict

The medical marijuana laws in Colorado are akin to a full employment plan for attorneys. Take this week's appeal of a case involving Frank Marzano, who was convicted in 2007 of cultivation and possession of marijuana after a search for a fugitive turned up weed -- and despite the fact that he had loads of patient information showing that the pot was MMJ. Attorney Rob Corry provides the details:

The opening brief in the Frank Marzano case, as well as other court documents available on the Cannabis Therapy Institute website, provide the basic facts:

Three years ago, authorities were searching for a fugitive named Randall Zandstra, who was suspected of holing up at a home in Loveland. U.S. Marshals got a warrant to search the property for Zandstra under complicated circumstances the brief describes as a "sham" -- and Marzano, the person actually living there, refused to let them keep poking around after determining that Zandstra wasn't present.

They did so anyhow, and subsequently happened upon plenty of marijuana -- and while Marzano had what's described in the brief as "41 pages of medical marijuana documentation" establishing that he was growing the weed for patients, he was busted for assorted drug beefs anyhow. He was ultimately cleared of distribution charges, but he was convicted of possession and cultivation -- a verdict that frustrates Corry, Marzano's attorney, who felt that the trial judge tied his hands.

"The judge held that Frank couldn't call as witnesses any patients who had not affirmatively and expressly designated him as a caregiver on their registry card," he says. "And if you read the definition of caregiver in the Constitution, it's an adult who has significant responsibility for the well-being of a patient -- and whether or not that person is on the registry card isn't dispositive of that person being a caregiver."

In addition, Corry continues, "we allege that the judge had a substantial bent of mind against Frank and medical marijuana. The judge said that I, his defense counsel, couldn't use the phrase 'medical marijuana' during the trial. He told the jury, 'I have ruled that there's no such thing as medical marijuana.' So I had to say, 'marijuana for medical use.' The judge used the words 'medical marijuana' over and over again, as did the prosecution, but I was under a separate command that really polluted Frank's opportunity to get a fair trial."

In addition, Corry says, "there's also a quite-prominent issue that maybe isn't as concerning to the medical marijuana community, but it's important for Frank, involving a warrantless search that is presumptively unconstitutional. They were after a federal fugitive who had last been seen at that property ten months before. That was their purpose for being there -- and he obviously wasn't there. They thought they had consent to enter from the executor for the owner -- the owner of the property was deceased, so the executor gave the marshals consent to enter for the purpose of arresting this alleged fugitive. But when they didn't find him, Frank, who had every right to be there -- he wasn't charged with trespassing, he was lawfully present -- told them to leave, and they didn't. They proceeded to do a complete search, top to bottom, and then got their warrant four hours later, which doesn't cure the violation. In fact, it probably exacerbates it."

In Corry's view, the case is important for Marzano, who's been living under a cloud since 2007. But he feels it's also a way to prove that members of the MMJ community "aren't second-class citizens. We ought to be able to claim the protections of the Fourth Amendment and the right to a fair trial. And it also deals with the parameters of an affirmative defense, which will be more and more important with the legislature potentially shutting down the medical marijuana registry.

"Caregivers will have to claim status independent of the optional registry card. The details of that will have to be worked out, but the fact remains that Frank had documentation for 34 patients in his home at the time of the search. It was nothing concocted afterward. He had the cards in his possession then. And there was zero evidence that a single gram of this marijuana was used for anything other than medical purposes -- which is something else I wasn't allowed to say in court."

Corry is hopeful that things will turn out better for Marzano this time around based on this week's hearing before the Court of Appeals. "The three judges were impressively well-prepared for our argument," he says. "They seemed like they'd read every inch of the record. And that gives me some confidence. I think we should win if the appellate court looks at the record, and I have every belief that it has, and will."

If he's wrong -- and Marzano likely won't learn about the decision for a few months -- Corry is prepared to appeal the case to the Colorado Supreme Court.

"Judges are usually right," he maintains. "But this time, with all due respect, the trial court got it wrong. And that's why we have appellate courts -- to correct errors and guarantee people's constitutional rights."

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Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
Contact: Michael Roberts