Question of life's beginning key to medical marijuana

May 02, 2005

Chad Abraham, Aspen Times

After a judge's ruling Monday, a jury may have to decide when life begins. No, it's not about abortion, it's about pot - the medical kind.

The arrest of a Rifle woman last summer for growing medical marijuana has spawned a complicated legal case in which the viability of her marijuana plants is at issue.

Officers with TRIDENT, a downvalley drug task force, searched the home of Jennifer Ryan on July 30, 2004, allegedly seizing more than 100 plants, both full-grown and fledgling plants known as 'cuttings.'

TRIDENT's subsequent mishandling of the evidence may have hampered their case against the 23-year-old, who is licensed by the state to grow 24 marijuana plants for six of her patients, because the prosecution may have trouble proving which plants were full-grown and which were simply cuttings.

What is now impossible to discern is whether those cuttings constitute bona fide plants. That could be crucial for a jury in deciding whether Ryan violated the number of plants she was allowed by law to possess.

The mix-up of evidence appears to have started when TRIDENT officers, in violation of the Medical Marijuana Amendment in the Colorado Constitution, destroyed some of the full-grown plants, saving just a single leaf from each plant as evidence.

'It puts everybody in a little bit of a bind. What they did was they clipped a representative leaf from a plant and put the leaf in a little envelope and then destroyed everything else,' said Ryan's attorney, Kristopher Hammond.

'So all they have left is this leaf,' he explained, 'and it's impossible to tell whether that leaf was cut from a live, thriving plant or whether it was from a cutting.' The difference is crucial, Hammond said, because the cops had no way of knowing whether the clippings were going to survive.

District Judge James Boyd ruled that task force officers took the plants to a landfill after they 'learned about and discussed the implications of the Medical Marijuana Amendment.'

Under that 2000 amendment, 'the cops are required ... to keep the plants alive and to return them if she wins. That's out the window,' Hammond said.

Boyd said the destruction of the plants by police was 'not an innocent or good-faith mistake. TRIDENT knew or should have known that the number of plants would be important in determining whether or not a crime occurred.' The judge's ruling says TRIDENT conceded that it violated the Medical Marijuana Amendment.

The Medical Marijuana Amendment allows a caregiver to grow six plants per patient. 'She had four certificates, so 24 [plants are] allowed,' her lawyer said. 'The question then becomes, how many plants can they prove up against Jennifer Ryan?'

Further muddying the waters is the fact that some of the plants are dead.

'[With] a dead little thing that's all shriveled up, it's impossible for anybody to say whether it was a thriving plant on its own or it was just a cutting,' Hammond said.

'When does plant life begin?' Hammond continued. 'It's a bizarre question: If you cut a leaf off of a plant, is that a separate plant? Obviously our contention is that doesn't happen the moment you snip it off and put it in soil. It has to live and thrive on its own. And that's going to be hard for us to show because they're all shriveled up and dead.'

Boyd's ruling may hamper both the prosecution and the defense because it says that any piece of evidence that is less than a whole plant can't be used at trial.

'The judge's theory is that if you have everything, then you can tell whether it's a real plant or not,' Hammond said. 'Of course, they're all totally dead now so we don't know whether they would [have] thrived or not.'

The end result is 'it limits the evidence the prosecution can bring forward. They're not going to be able to produce any pictures of any of these plants. The judge said that if you destroy the root system, then you've deprived the defendant of a way to defend against the charges,' he said. 'The only admissible evidence will be the plants and/or cuttings which are in intact and haven't been cut by the police.'

Authorities claim they found 133 plants in varying sizes at Ryan's apartment. Hammond said he didn't know how many intact plants police plan to present as evidence. 'The only things they'll be allowed to introduce [as evidence] are either plants or cuttings that were left intact. If they cut anything off of it, they can't use it.'

A jury will take up the issue of when plant life begins during a four-day trial set to begin June 14 in Glenwood Springs.

Chad Abraham's e-mail address is chad@aspentimes.com


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