Oakland County Patient Gets Redemption From Court Of Appeals

This article was originally published on the Marijuana Patients Organization site on January 23, 2013.

For those that have followed the tragedies and casualties of the Michigan Medical Marijuana Act, you may remember the name Barb Agro. Barb (72 years old) was convicted of growing 14 plants in her Oakland County home for her and her husband’s qualifying conditions. Prosecutors asked Judge Wendy Potts to forbid Mrs. Agro from informing jurors that she possessed a State Medical Marijuana card. The Judge obliged.

As a result of a very tragic and cruel denial of justice, by both prosecutor Jessica Cooper and Judge Wendy Potts, this very legal and sincere woman was denied her most basic of rights and convicted of a felony. Simply because the prosecutor and judge “don’t like the law”. The duo publicly stated their view of medical marijuana during trial and told jurors “that if Mrs. Agro was following the law, that they would not be there.”

Police should never have arrested Mrs. Agro, taken her property, or continued with prosecuting her the very second they learned Barb had a valid medical marijuana card, a license from the State of Michigan that clearly allowed for the small quantity of plants found locked in Barb’s basement. No sense in writing the Act here, or at least the part that gives clear instructions to prosecutors, law enforcement and Judges to leave patients alone. Ms. Cooper and Mrs. Potts know exactly how the law reads, they simply chose to ignore it.

Prosecutor Jessica Cooper spoke at a conference to the Michigan Municipal League just months before the assault on Barb Agro’s home, Ms. Cooper’s strategy to those in attendance, “keep raiding growers, dispensaries, and patients, they’ll get the point.” Even suggesting that, “this action (of raiding) was the only route other States take with the medical marijuana issue.”

Today Barb got some justice, and took the final steps towards redemption. Barb appealed her conviction to the Michigan Court of Appeals and they agreed with her, here is the court’s opinion and a part of that opinion below:

Finally, defendant contends that the prosecutor’s comments deprived her of a fair trial. We agree that the prosecutor’s comments were improper, but that the trial court’s jury instructions cured any potential harm to defendant.

“The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial trial. Prosecutorial misconduct issues are decided on a case-by-case basis, and the reviewing court must examine the record and evaluate a prosecutor’s remarks in context.”

During voir dire, the prosecutor asked the jurors if the judge said defendant’s conduct was illegal, whether they could convict and asked an individual juror if he found defendant grew marijuana in her house and the judge said that was illegal, whether he would hesitate to find her guilty. The prosecutor also stated, “And you know that if it was legal that we wouldn’t be here.”

Additionally, in the prosecution’s closing argument rebuttal, the prosecutor stated:
And then what happens is once charges are brought, we go before a Judge and the case begins to be argued. And the Judge makes legal rulings and determines what evidence is admissible and what evidence is not admissible, and whether a case is legally sound; that’s her job. If this case was improperly before you, it wouldn’t be before you. That -the Judge would have kicked it a long time ago. That is her job. If that -police officers acted poorly, or if there was something that was done that – it was illegal, the Judge rules on that. The Judge makes those decisions.

The prosecutor’s comments suggested that the trial court believed the case against defendant was “legally sound” or it would not be before the jury. We conclude that such comments were improper. Nevertheless, “[c]urative instructions are sufficient to cure the prejudicial effect of most inappropriate prosecutorial statements, and jurors are presumed to follow their instructions.” Unger, 278 Mich App at 235 (citations omitted). The trial court instructed the jury as follows: “If you believe I have an opinion about how you should decide this case, you must pay no attention to that opinion.” The jury is presumed to have followed this instruction.

Remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

Read the opinion here >>