On Aug. 1, Denver attorney Sean McAllister wrote 4th Judicial District Attorney Dan May to protest what he saw as stringent negotiation tactics being taken by May's deputy working a case.
"We are only being offered a felony conviction with a recommendation for probation," writes McAllister, whose client was a medical marijuana patient growing within his plant limit, but without physical possession of his red card. "I don't understand this plea offer and it is inconsistent with previous dispositions achieved by me in your jurisdiction over the past several years. ...
"I have represented over 100 similarly situated criminal defendants in other jurisdictions over the past several years and I cannot think of one of my clients who was actually saddled with a felony conviction for slight overages of the plant limits or technical deficiencies with paperwork."
McAllister says he never received a response from May's office. But he and other defense attorneys are upset at what they perceive to be some kind of policy — created in what fellow Denver attorney Rob Corry calls "a parallel universe" — at the DA's office not to offer deferred sentencing to those charged with felony marijuana crimes, specifically those charged with possession with intent to distribute.
Sarah Christensen, a longtime Colorado Springs defense attorney, explains that deferred sentencing allows the defendant to enter a guilty plea, without the sentence becoming final.
"So the judgment and sentence is deferred, and it's postponed [by] whatever period of time you agree to," she says. "And at the end of that period, if you have stayed out of trouble ... then they withdraw your guilty plea and dismiss the case, and it never enters as a permanent conviction."
It's a common plea-bargaining tactic, used in cases ranging from domestic violence to sexual assault, but one that at least a handful of attorneys say has disappeared within the past six months in marijuana-related felony cases. Their defendants are forced into either accepting an agreement that involves pleading guilty to a felony charge, or taking their chances at trial, which can cost thousands of dollars, win or lose.
This, in addition to the taxpayer cost: 2010 numbers provided by the Colorado Judicial Branch put the average cost of taking a criminal case to trial in Colorado at around $1,200, not including the prosecutorial team's salary, the court reporter, operating expenses, etc.
Regardless, even the plea agreements that are offered seem suspect, says Christensen, who uses a hypothetical client to demonstrate her recent experiences.
"So they'd offer him probation, no jail. Well ... if he goes to trial and gets convicted, OK, the judge is not gonna do anything worse — to the guy who has 14 plants instead of 12 — than probation, no jail.
"So the DA will say, 'Well, I can offer you probation, no jail.' You're like, 'OK, that's what happens if I lose. That's not really a plea bargain. How about a deferred?' 'Sorry, can't do it.'"
And while a felony can haunt anyone's record, it brings added risk to medical marijuana workers and owners. Colorado law bans anyone with a drug-related felony, and those with a felony that has not been released within the last five years, from obtaining business licensure from the state.
May and MMJ
May has long been known as an antagonist to the MMJ industry, having lobbied city and county governments in the past year to place ban questions on ballots; when they haven't moved forward, he's pushed for tighter regulations.
But May says his approach to prosecuting felony marijuana cases is more or less the same as his predecessor's.
"I can tell you there's not a blanket rule that we never do deferred sentences in marijuana cases," May says in a phone interview. "It's something we'll review and try to decide what's appropriate.
"Typically a first-time offender, particularly a possessor, we're looking towards rehabilitation ... But as you become a repeat offender, or you're an actual distributor — particularly, let's say, you're distributing to our high schools — then we may not be looking as much rehabilitation in those cases."
Despite May's denial of a policy, Springs defense attorney Richard Bednarski has heard differently, as evidenced by early September e-mails between him and a deputy DA. He dictated them to the Indy over the phone.
"I wrote ... 'There's no way I can recommend to a client to plead guilty to a felony charge on a first-time offense. ... Would you consider a deferred judgment sentence to the class four felony?'" Bednarski reads. "And the response is, 'You know we can't do deferreds to drug cases outside of drug court.'
"I then responded by saying, 'I did not know that when dealing with marijuana cultivation cases, as I have received two [deferreds] in the previous year, of cases that did not go to drug court.'
"And her response was, 'We do not do deferreds, last time I checked.'"
In rebuttal, May says it's possible Bednarski was working with a new deputy, who was referencing a requirement that offers be approved by a supervising attorney.
"Some of our younger deputy DAs, we'll have them run by all their dispositions by a senior person who is a team leader, and assigned to their team to look at each disposition to make sure it's fair," he says. "I don't know if it was a situation like that."