When kidnapping isn’t criminal

A Young Michigan Medical Marijuana Attorney Stands by His Principles and Teaches Child Protective Services How to “Just Say No” to Government Abuse

© By Michael J. Nichols

Tears flowed like rain for Steve and Maria Green on Friday October 25, 2013. This time, the tears were tears of joy. Six weeks after Child Protective Services grabbed their six-month-old old child, literally yanking her from Maria Green’s arms, the Green family was reunited.

Thousands of hours in attorney time, thousands of dollars in fees for expert witnesses and countless sleepless and stressful moments later, a judge banged the gavel and granted the one wish for Steve and Maria: getting their infant child back.

“This case tears at the heartstrings of any parent,” says Michigan Medical Marijuana Attorney Josh Covert of East Lansing. Child Protective Services agents originally stormed the home of the Greens based on allegations that are believed to be from a person who fathered children with Maria Green.

The claim? They were growing and using marijuana in the home and around the infant and other children.

This is more than just any case of a spiteful ex leveling charges to get back at a person with whom he has a child. This case takes on a whole new life when the worlds of advocates of an old medicine that is finding new support in the medical community clash with the worlds of social workers, police investigators and others who are paid to enforce the laws as they are written. This is a case involving medical marijuana patients. Covert says, “They have no choice but to grow their own medication because of the way the statute is written and has been interpreted.”

The politics, social media, news coverage and emotions were about to come to a head. Oct. 28, 2013, was the date scheduled for a trial before Judge Richard Garcia in Ingham County. Citizens around the county were served with summons to fill the jury pool from which lawyers for the Greens, the Ingham County Prosecutor and the Guardian Ad Litem for the baby would pick jurors.

The question? Should the state of Michigan have jurisdiction over the Green family, thus giving the Court the power to dictate terms for the Greens to live by while they live on their medication.

The problem? Steve suffers from major grand mal seizures and medication that is in the form of traditional pills makes him sick and does little to prevent potentially fatal episodes. Since the legalization of marijuana for medicinal purposes in 2008, Steve’s life has improved greatly. Further, other forms of breaking down and ingesting THC have made it easier for him to use it without exposing others to contact.

However, THC is a lightning-rod. “Reefer madness” and Nancy Reagan’s iconic “just say no” campaign during the 80’s created the stereotypical “pothead.” Covert, who volunteered almost all his time to the Greens reflected on how some judges view medical marijuana: “some judges have said on the bench that it is used to accomplish one thing ‘numb’ a person.”

Covert adds that it is getting only slightly easier since the passage of the voter-initiated Michigan Medical Marijuana Act in 2008. “It is almost as if there is a movement among law enforcement to work even harder and perpetuate the stereotype,” he said. “They want to justify the criminalization of a plant that was treated as medicine by many successful civilizations long before we even thought of ‘the drug war.’”

The infant was seized from the home on Friday the 13th of September. It was more than just luck. It was planned well and executed in a flash.

CPS workers rushed to put together a petition to file in court that was signed by a prosecutor and remove the child on an emergency basis. The Greens were in the midst of fighting an older criminal charge from Oakland County based on manufacturing marijuana and had hired Covert for that case.

Covert was on the verge of getting the case dismissed when he got the call. “By the time I got to the courthouse in Lansing, they were already in front of a referee. All I could do was watch and listen with amazement while the government did this to a family. I was stunned, I was angry and I was upset.”

Covert stepped away from his own emotions and reflected on what he learned as a law student: “I thought about how my clients must be feeling.”

The Greens belong to several activist groups for patients. Soon word got around. Then the media grew interested and coverage of this government maneuver took on a life of its own. Links to the coverage show that it literally spanned the globe:

• The Daily Mail (London)
• USA Today
• WILX-TV Channel 10
• Detroit Free Press
• WZZM-TV Channel 13
• Michigan Radio
• WLNS-TV Channel 6
• Fox Detroit

In Michigan, a jury must first make a finding of jurisdiction by a “super-majority” following a trial before the government has the right to start imposing court orders on a family. As the outpouring of support for the Greens grew, the government workers clutched to their power-grab much like the infant clutches to a binky.

First CPS filed one amended court document after another, changing and adding allegations against the Greens in an effort to find something that would stick. As lawyers met in pre-trial conferences, Judge Garcia continued to express his concern about what happened, how the government would prove it belonged in this family’s life and what would happen if a jury granted the government that right.

Covert had marshaled together resources from other lawyers to top physicists at nearby Michigan State University to point out certain flaws in the testing methods that claimed there were tiny sub-particles of the remnants of THC in the baby’s hair.

An outside vendor from hundreds of miles away was the only remaining hope for CPS – having conducted a test that claimed .3 picograms – yes .3 picograms — of a molecule that is left behind by the breakdown of THC had been found in the baby’s hair. .3 picograms is the equivalent of half a teaspoon of sugar in three Olympic-size swimming pools. The amount is so small it cannot be seen with even a microscope.

“When I heard that, I almost felt glad because I knew all the different ways that test actually proved that this baby was never actively exposed to marijuana use … even if the measurement was perfectly accurate and absolutely could not have been a false positive. Of course we all know that there are no absolutes in science.”

Covert, his colleagues at the Nichols Law Firm and his co-counsel, David Rudoi of Detroit, were on the eve of trial. One last scheduling conference with Judge Garcia was all that stood between him and a long weekend of preparation for the courtroom battle.

Then the assistant prosecutor indicated in chambers that there was a solution he was willing to live with: no trial, no jurisdiction and a voluntary period of informal monitoring to make sure there are no issues with improper exposure to the baby or her siblings in the home.

If so, case dismissed; game over; government packs up and goes home.

Covert knew that his clients were about to get their baby back if they would only agree to an informal working relationship with CPS for a brief period: “Recent developments made the trial unnecessary as we were able to show that several of the allegations in the petition for removal were baseless” he said. “The parents did not forego the right to have a jury trial and there were no admissions of guilt. The parents agreed to cooperate with CPS during its investigation and are going to prove that their home is a safe one for their baby.”

Questions remain about the manner in which CPS snuck behind closed doors to pull this baby from the clutches of her mother and father and why CPS did it. Is it because the Greens are activists? Is it because their different? Is it because someone at CPS just does not like medical marijuana?

The media interest both nationally and internationally may wane. But the focus on the policies, actions and motives of CPS employees should burn bright. “I think what drove the interest is that most people don’t believe that a child should be removed from the home when a parent is using marijuana as medicine,” says Covert. “Think about all the different types of potentially impairing drugs that do not have the same stigma as marijuana.”

“Remember that the right to parent is a fundamental constitutional right” he adds. “That is why we do not just take a child away just because a mother starts over-using her Ambien and the father has a problem controlling his drinking.” Covert continues “To get where we are today in this one story of one family took a lot of hard work and determination. The parents did not back down and insisted that the state recognize and uphold the medical marijuana act as originally intended by the people and voters of the state of Michigan.”

However, often politicians need to galvanize support and dollars for their campaigns. You cannot get elected without a well-funded war chest and that requires motivated contributors. Political beings from Attorney General Bill Schuette to State Senator Rick Jones have made very clear that law enforcement should crack down on marijuana because after all, it is still a violation of federal law to possess, use or grow it.

Sometimes people like this forget that in a Republic like the United States of America, the founders of the feast of rebellion from the rule of King George III had a theme. That theme resonates in new democracies still today: in order for the government to truly have authority, it must be derived from the consent of the governed.

In 2008, more than 60% of the governed in the State of Michigan told the government to make medical marijuana legal. It seems as if some of those government officials have done everything they can to whittle away at the will of the people since the MMMA was passed. Right down to the legislature passing a bill under the penal code to criminalize almost any form of transporting marijuana so that the bill did not have to garner a 3/4th majority in the legislature.

Passing the bill as an amendment to the penal code avoids the constitutional requirement for a 3/4ths majority to amend a voter-initiated law like the MMMA. The legislature did this and the governor signed it and by doing so, they frustrated the consent that they were given by the governed. Who cares? What do we do about it? If you have a conscience – neglect it at your peril.

Joshua Covert is an attorney with the Nichols Law Firm, PLLC based in East Lansing. He focuses his practice on medical marijuana and DUI/DUID defense. He graduated from Cooley Law School in 2011 and is currently pursuing a masters degree (LLM) in Criminal Law. He is originally from Kalamazoo.

Michael J. Nichols dedicates his practice to DUI/Criminal Defense. Nichols is the State Delegate to the National College for DUI Defense and the Secretary of the Michigan Association of OWI Attorneys. He is an adjunct professor of DUI Law and Practice and Forensic Evidence in Criminal Law at Cooley Law School and a member of the American Academy of Forensic Sciences (associate/jurisprudence section). He is author of several publications including the newly-updated OWI Book for Michigan lawyers by West, “Measuring Nothing” on mass spectrometry by Aspatore-West and “Mens Rea” – a monthly column in the Ingham Legal News.