March 01, 2007
Joshua Zaffos, Rocky Mountain Chronicle
Brian Vicente was about halfway through schooling a roomful of defense lawyers on how to represent medical marijuana patients, when "there was a ruckus of some sort,'" says Vicente. "After the talk, [one of the attorneys] said, ‘There was a prosecutor in here spying and we had to kick him out.'"Vicente, the executive director of Sensible Colorado, a medical marijuana advocacy group, had a couple of reasons to be upset. First, the Jan. 25 training session inside the Larimer County Courthouse had been organized by the Colorado Criminal Defense Bar, which prohibits prosecutors and law-enforcement officers from all of its workshops. And, the alleged infiltrator is Vicente's opposing counsel, Deputy District Attorney Thomas Lynch, in an upcoming landmark case on the rights of Colorado medical marijuana patients and growers.
Vicente is representing James and Lisa Masters, who will stand trial this June. The Masters turned their Fort Collins home into the Larimer County branch of the Colorado Compassion Club, a network that distributes medical-grade cannabis to patients registered with the state under a medical marijuana law, Amendment 20.
Last August - during a child-welfare check on the couple's 4- and 6-year-old daughters - Fort Collins Police Services and the Larimer County Drug Task Force arrested the Masters for cultivation and intention to distribute marijuana. The police confiscated 30 pot plants and clones as well as grow-room materials, and placed the Masters' kids into foster care for nearly two months. (For more on the story, read "High noon," from the Jan. 17 edition, at rmchronicle.com and the update on page 11.)
Vicente believes the Larimer County District Attorney's Office got an illicit sneak peek of the Masters' defense when Lynch strolled into the training seminar. The deputy D.A. may have gotten away with a handout of Vicente's 20-page manual, "How to Defend Medical Marijuana Patients in Colorado."
"[Lynch] essentially took a copy of my playbook for protecting medical marijuana patients," says Vicente. "His actions, I feel, have tainted the entire Larimer County District Attorney's Office."
Vicente responded by making a motion to County Chief Judge James Hiatt, asking for Lynch - and the entire county D.A.'s office - to be recused from the case and replaced with an independent special prosecutor. Hiatt has agreed to hear Vicente's argument on Feb. 26.
The district attorney's office does not comment on pending cases, says spokeswoman Linda Jensen. She declined to answer whether the D.A. thought Lynch should be removed from the case or whether he had in fact obtained a copy of Vicente's playbook.
But not all of the training-session attendants believe Lynch sneaked into the seminar with the intent to sabotage the Masters' defense, or that he made off with any top-secret strategies.
"I have no indication that it was anything other than an innocent mistake," says Andrew "Guss" Guarino, executive director of the Colorado Criminal Defense Bar, who helped organize the training session, which he also attended.
Prosecuting attorneys are prohibited from the state defense bar's workshops, Guarino explains, so attendees can openly discuss strategies and tactics for how to argue a case. But Lynch didn't cause a "ruckus" and he left willingly, says Guarino. He didn't notice if Lynch took off with one of Vicente's manuals.
"If, in fact, he did do that, bad on us that we didn't check to see if prosecutors were in the room," says Guarino.
"Typically, there are no real secrets," he adds, "but we want a free flow of ideas and information, and it can only be done if there isn't someone in the room who is your adversary."
Guarino didn't comment whether the alleged gaffe should lead to the removal of Lynch, or the county district attorney's office, from the trial. But he's less fatalistic than Vicente about how the episode might affect the success of medical marijuana patients and caregivers in Colorado courtrooms.
Still, Vicente is adamant.
"It just seems so underhanded," he says. "Mr. Lynch's job is to impartially search for justice, not to jail people, and he's not being impartial" by coming to the training session.
"This affects due process rights of the Fourteenth Amendment, and certainly this instance has prejudiced the Masters and any others [with medical marijuana court cases] in Larimer County."