The Oakland County Prosecutor's office is contemplating filing criminal charges against a medical doctor for his involvement in certifying two medical marijuana patients in 2009 - shortly after Michigan's Medical Marijuana Act (MMMA) was implemented.
The protracted case against Robert Redden and Torey Clark was initially dismissed back on June 17, 2009, by former Oakland County District Judge Robert J. Turner. The district court's dismissal was appealed by Oakland County's prosecutor and, since then, the case has been dragging on between various appellate and trial courts.
During an evidentiary hearing held on February 20, Assistant Prosecutor Beth M. Hand, told Circuit Judge Denise Langford Morris that she believes "there is a serious Fifth Amendment problem that Dr. [Eric] Eisenbud faces relative to his testimony that he would be giving here today ... in light of his testimony he gave at the preliminary examination... I believe that Dr. Eisenbud should be advised of his right to an attorney, prior to him testifying, in what could result in criminal charges being brought against him."
Defense Attorney Michael A. Komorn responded, saying that he was "told [about] this moments ago. The law says you can't prosecute a doctor for making a certification. So I don't know what she's talking about."
While those initial courtroom discussions were taking place, Dr. Eisenbud was in Colorado waiting to testify by way of a video-link. He was unable to hear what was being said because the audio was muted at the direction of Judge Lanford Morris.
Prosecutor Hand continued to elaborate her concerns to the Court, stating that it "is the People's position, after reviewing the medical records as well as the doctor's previous testimony, that he may very well be in violation of MCL 750.492. As well as there is testimony that he gave during the preliminary examination relative to items that were contained in the medical records of at least one of the defendants that is, in fact, not in the medical records - at least the medical records that I was provided by the defendants... MCL 750.492 indicates that 'a health care provider or other person, knowing that the information is misleading or inaccurate, shall not intentionally, willfully, or recklessly place or direct another to place in a patient's medical record or chart misleading or inaccurate information regarding the diagnosis, treatment, or cause of a patient's condition.' There's both a felony for willful disregard of that ... as well as misdemeanor for recklessly violating that. The physician's certifications in this case, as well as the physician's statement are, in fact, part of the defendants' medical records as required by the Michigan Department of Community Health that those items be kept as medical records in part of the physician's file... In issuing the certification, which is now a part of the medical records, there are falsehoods inside of the certification relative to what is contained in the medical records. And therefore [Dr. Eisenbud] is going to subject himself, I believe, to a violation of 750.492."
Judge Langford Morris then expressed that she "wish[ed] that this had been raised prior to today so that the doctor could be advised of the assertions that have just been placed on the record... I think we do need to place it on the record in front of the doctor and, quite frankly, I would want to give him a few minutes to think about it because none of you represent the doctor."
Dr. Eisenbud was then allowed to participate and listen to the proceedings. Judge Langford Morris advised him that "the prosecution has just advised defense counsel today, and the Court just now, that apparently there is some possibility ... that the statements that you may make during your testimony could be utilized against you as a foundation for possible criminal charges by the prosecutor."
Dr. Eisenbud responded, stating that "if there is even a possibility of criminal charges against me, I will not testify in this hearing and I will be represented by an attorney... I'm totally surprised. I'm absolutely dumbfounded..."
Judge Langford Morris further notified Dr. Eisenbud that "what [Prosecutor Hand] stated - off the record where you couldn't hear - is that you might be testifying about issuing a certification which may contain falsehoods."
Defense Attorney Komorn interjected, arguing that "I just find it odd and extremely inconvenient for the doctor. I know he took his second day off to be available ... to be told today, moments before that this is what they came up with. It's almost an attempt to thwart what we're trying to get done today. I just can't see it any other way. I think costs should be levied for him, for us, for the payment of this [video conference]. To wait until the last minute is offensive to all that this Court stands for: efficiency, fairness to the parties. It is just beyond belief that we are here talking about this now and he's being threatened - so to speak - and didn't have a chance to talk to counsel before. I just find it outrageous, at this point."
Later on in the proceeding, Prosecutor Hand asserted that the "existence of 750.492 just came to my revelation, Judge, probably several days ago when I learned via an email - I think from one of co-counsel's people that they utilize - I think his name was Eric VanDussen, I think. And [the email] got forwarded to me from various other people about the existence of 750.492. When I read it in conjunction with the medical records I have, as well as looking at the certifications. Judge, I'm ready to go today. This is not to my advantage to adjourn this proceeding... I know it's my obligation, as an officer of the court, to let any witness know when I think that there may be - a criminal charge could be levied against them based on their testimony. And I wont apologize for doing that anytime."
Judge Langford Morris again addressed Dr. Eisenbud, informing him that "Obviously you've heard the prosecutor - you've heard defense counsel. This apparently is something that is relatively new. Quite frankly, I don't ever recall having this as an issue in this court. And I mean in my court and I've been here for over 20 years."
The Redden/Clark case was one of the first instances in which a published appellate opinion was issued regarding the MMMA. The Michigan Court of Appeals' September 14, 2010 opinion contained the following findings of fact: "During the preliminary examination, the prosecution argued that defendants were not entitled to assert the affirmative defense from § 8 of the MMMA because they did not each have a registry identification card at the time of the offense as required by § 4(a) of the MMMA... The prosecution acknowledged that defendants could not have obtained a card previously because the state had yet to begin issuing them. However, the prosecution contended that defendants were required to abstain from marijuana use until they were able to obtain a card. Defendants argued that the plain language of § 8 of the MMMA did not require possession of a card... The prosecution contended that defendants failed to comply with § 8 of the MMMA because they had not shown a bona fide patient-physician relationship with Dr. Eisenbud and also failed to establish that they possessed an amount of marijuana that was not more than was reasonably necessary to ensure uninterrupted availability for the purpose of treating their conditions. Defendants argued that they each met the requirements of § 8 because they each had a signed authorization from a licensed physician with whom they had a bona fide physician-patient relationship and who concluded that they each had conditions covered under the MMMA. Defendants also argued that the amount of marijuana was reasonably necessary... As an initial matter, the plain language of § 8 does not place any restriction on defendants’ raising of the affirmative defense. Nevertheless, the prosecution argues that the affirmative defense under § 8 is unavailable to defendants because they did not possess valid registry identification cards at the time of the offense, in violation of § 4."
The Court of Appeals' Redden/Clark opinion ultimately held that the "prosecution contends that this section justifies its position that § 4 must be adhered to in order for a defendant to invoke § 8, because the affirmative defense is only available to a defendant who complies with the other provisions of the MMMA. However, as defendants argue, this position ignores that the MMMA provides two ways in which to show legal use of marijuana for medical purposes in accordance with the act. Individuals may either register and obtain a registry identification card under § 4 or remain unregistered and, if facing criminal prosecution, be forced to assert the affirmative defense in § 8... The plain language of the MMMA supports this view. Section 4 refers to a “qualifying patient who has been issued and possesses a registry identification card” and protects a qualifying patient from “arrest, prosecution, or penalty in any manner . . . .” MCL 333.26424(a). On the other hand, § 8(a) refers only to a “patient,” not a qualifying patient, and only permits a patient to “assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana . . . .” MCL 333.26428(a). Thus, adherence to § 4 provides protection that differs from that of § 8. Because of the differing levels of protection in sections 4 and 8, the plain language of the statute establishes that § 8 is applicable for a patient who does not satisfy § 4."
The February 20, 2013 affirmative defense hearing, for which Dr. Eisenbud had been subpoenaed to testify, was adjourned and a new date has not yet been rescheduled by the Court.
(NOTE: When Prosecutor Hand stated in court that she had been forwarded an email apparently originating from this reporter, she most likely was referring to an article that was forwarded to her, which this reporter published on February 13, 2013. See: Doctor charged with certifying undercover officers to use medical marijuana )
(An unedited video of the February 20, 2013 hearing in the Redden/Clark case can be viewed at: http://vimeo.com/60272365 )