The Michigan Court of Appeals has reversed the conviction of Paul Heminger, an Alger County man, for growing twenty-two pot plants in what he argued was an entirely legal act under the state’s medical marijuana law. In an unanimous decision, the court held that veteran prosecutor Karen Bahrman’s closing argument was “clearly and thoroughly improper” based on her “personal diatribe” against the law itself, and its supporters, for “their vision for the country where everybody can walk around stoned.”
What is notable about the case—an otherwise run-of-the-mill drug-war prosecution—is how vividly it brings to life a cultural and political dynamic that exists just below the surface of thousands of similar cases but is often impossible to document: the personal and sometimes vehement contempt that many prosecutors have for the people they charge and try.
According to the appellate court’s summary of the proceedings,
An orthopedic surgeon provided uncontroverted evidence that he [Heminger] had a long-existing doctor-patient relationship with defendant, that x-rays confirmed that defendant had stage-four degenerative arthritis in his shoulders, and that in 2009 the doctor indicated that defendant’s treating the pain caused by his arthritis by using marijuana was appropriate.
The prosecution argued that twenty-two plants was more than necessary for Heminger’s personal medical use. The jury apparently agreed, convicting him for violating Section 8 of Michigan’s “Medical Marihuana Act”, though not before hearing a great deal in closing arguments about just what prosecutor Karen Bahrman thought of the law as it stands, and what she thought of people like Paul Heminger.
Now, because it – it’s got to be obvious to you how we – we meaning law enforcement – feel about the Medical Marijuana Act, I want to start by saying that we don’t object to the idea of giving desperately ill people an escape from their suffering, not at all. We object to the – the act as drafted. And it – it really epitomizes the problem with legislation being drafted by a special interest group, as opposed to duly elected legislatures, as much as we all love to hate them.
She went on to say that the existing prescription regime, “renders this entire act much more meaningless than it is to start with.” But her choicest words were reserved for the defendant and his ilk.
You know, they do nothing to support the government services they want, and have nothing but criticism for the government services they don’t want. We’re trespassers and tramplers of their rights right up until they need us to protect them from the violence that they attract to the community. And their hostility towards anyone who disagrees with their vision for the country where everybody can walk around stoned is also kind of remarkable.
But all that said, you are unfortunately not here to judge the Medical Marijuana Act or the Alger Hemp Coalition. You are just here to judge this particular defendant on these particular facts. And in deed [sic] all of us – all any of us can do is just handle one case at a time until something changes.
When it came to deciding if this argument improperly prejudiced the rights of the defendant, the appeals court didn’t find it a particularly hard call.
The prosecutor’s closing argument was clearly and thoroughly improper. The prosecutor embarks on a political commentary, and a personal diatribe discrediting the MMA as a whole, claiming (without supporting evidence) that its protections are being abused by recreational users and exploitative physicians…and suggests that those suffering from chronic pain are simply cheating the system. She also denigrates the general population of lawful medical marijuana users, claiming that they attract violence to the community and advocate that everyone be allowed to “walk around stoned.” Finally, she states that it is unfortunate that the jury cannot judge the MMA…By making these unfounded, irrelevant and inflammatory statements, the prosecutor essentially argues that defendant’s affirmative defense is nothing more than a drain on the community, and that even if he is innocent under the MMA he is simply exploiting the system. As a result, the prosecutor encouraged the jury to convict defendant despite the protections of the Section 8 defense. This affected defendant’s substantial rights.
Taken together, Bahrman’s attack on the medical marijuana law, its supporters, and the physically ill defendant who dared to avail himself of the defense it provided him amount to a remarkably explicit expression of derision for people who managed to pass a state law she disagreed with, and for the basic humanity of Paul Heminger.
One the one hand, Bahrman is hardly alone in her behavior. Last month we reported on a Florida case in which the prosecutor referred to the defendant’s “beady little crackhead eyes” and called him “crackhead little brain.” And here are thirty other examples of improper argument, from Open File posts alone.
But few of these reveal as strikingly as People v. Heminger the role that prosecutors’ cultural and political views play in the cases they bring, the way they try them, and the emotional forces that time and again cut against their duty to be, as the court wrote here, “a minister of justice, not simply…an advocate.”
Bahrman, meanwhile, sees nothing wrong with what she said, and is reported to be considering an appeal to the Michigan Supreme Court.