Conviction upheld for marijuana cultivation

By Judy Harrison, BDN Staff
Posted July 28, 2009, at 8:28 p.m.

PORTLAND, Maine — The Maine Supreme Judicial Court on Tuesday unanimously upheld the 2007 conviction of one of the state’s most well-known proponents of medical marijuana for growing pot plants at his Madison home. The justices did not weigh in on whether the state’s medical marijuana law needs to be clarified.

Donald K. Christen, 55, was sentenced in August 2007 to 14 months in prison with all but six suspended, followed by two years of probation. A jury found him guilty four months earlier of aggravated marijuana cultivation and not guilty of drug trafficking at the end of a three-day trial in which Christen represented himself.

He has been free on bail pending the outcome of his appeal.

Christen could begin serving his six-month jail term at the Somerset County Jail as early as this weekend, according to Evert Fowle, district attorney for Somerset County, who prosecuted the case.

Peter Bickerman, the Augusta lawyer who represented Christen in the appeal, argued that Superior Court Justice Kirk Studstrup incorrectly instructed the jury about the state’s medical marijuana law. Bickerman also claimed that Christen was denied a speedy trial because it took place 27 months after he was indicted.

The justices, who heard oral arguments in the case last month in Portland, found there “were no obvious errors in the court’s jury instructions and Christen’s right to receive a speedy trial was not violated.”

Justice Ellen Gorman wrote the 10-page opinion.

Because Christen did not ask for specific jury instructions or object to jury instructions at the time of the trial, the court was limited in its review to obvious mistakes, Gorman wrote. She also said that although Studstrup never specifically told jurors that a designated caregiver could possess a usable amount of marijuana for each eligible patient, he did give them written copies of the law.

Gorman also found that Christen’s trial delay was largely due to his pretrial motions rather than solely the result of prosecutors — the standard for finding a trial has been unduly delayed.

Voters passed a referendum in November 1999 and the Legislature amended it in 2002 to allow the medical use of marijuana. The law allows a designated caregiver to possess 2½ ounces of harvested marijuana for the benefit of a patient eligible to receive medical marijuana plus a total of six plants, of which no more than three could be mature, flowering plants, according to Bickerman’s brief.

Since the enactment of the law, people have asked Christen to be their caregiver once they have received the necessary medical permission to use the drug medicinally from their physicians. Bickerman argued that Christen was following the law when Somerset County sheriff’s deputies, armed with a warrant on Nov. 10, 2004, seized 13 marijuana plants from his residence.

Christen, according to Bickerman’s brief, had the proper paperwork to show that he was acting legally as a caregiver to at least six people, including his wife, Pamela Christen, 45, of Madison, who was suffering from ovarian cancer.

James Mitchell, assistant district attorney for Somerset County, told the justices last month at oral arguments that Christen was convicted because he did not have the paperwork the law required.

Christen was found not guilty last December by a Somerset County jury on the same charge and a charge of furnishing marijuana, according to a story published in the Portland Press Herald. Walter McKee, the Augusta lawyer who represented Christen in the more recent case, told the paper it was the first time a defendant had proved he was growing and distributing marijuana legally under the state’s medical marijuana law.

A referendum question that seeks to make it easier for qualified patients in Maine to obtain medical marijuana will be on the ballot in November. The Legislature’s Health and Human Services Committee in April rejected a citizen initiative that would have had the state issue identification cards to qualifying patients and allow licensed nonprofit dispensaries to provide marijuana to those patients.

http://bangordailynews.com/2009/07/28/news/conviction-upheld-for-marijuana-cultivation/ printed on November 26, 2014