HIGHLANDS RANCH MARIJUANA CASE COULD SET FEDERAL PRECEDENT

Probable Cause Found Against Marijuana Grower in First Court Appearance

A Highlands Ranch man who until last week made his living growing
marijuana in the basement of his home walked into a courtroom wearing
a tan prisoner's jumpsuit Thursday, the first steps in what legal
experts say could be a precedent-setting journey through the federal
justice system.

After a routine hearing, a magistrate judge found there is probable
cause for the drug-distribution case against Chris Bartkowicz to
continue toward trial and set his bail at $10,000.

Bartkowicz, who was arrested Feb. 12 by Drug Enforcement
Administration agents after they seized more than 200 marijuana
plants that Bartkowicz said were for medicinal use, is the most
high-profile person involved in medical marijuana in Colorado to face
federal prosecution. He is also one of the only people nationwide to
face federal charges since a Justice Department memo in October said
federal agents should respect state medical-marijuana laws.

That convergence of circumstances -- federal law, in which all
marijuana is illegal, versus Colorado's constitutional protection for
medical marijuana -- makes the case fertile legal ground. Bart
kowicz's attorney hinted during the hearing Thursday that little in
the case would be routine.

"There are complex legal issues that haven't been addressed in this
state," said the attorney, Joseph Saint-Veltri.

Saint-Veltri has declined to comment on the defense he intends to
mount, but legal experts say it would be nearly impossible for
Bartkowicz to claim a medical defense in federal court. In several
federal cases involving medical marijuana in California, judges have
blocked such testimony.

"Federal judges prohibit the defense from even uttering the words
'medical marijuana,' " said Bill Piper, director of national affairs
for the Drug Policy Alliance Network.

Such restrictions leave medical-marijuana providers exposed in court,
said Kris Hermes, a spokesman for the group Americans for Safe Access.

"If you get prosecuted in federal court, it's an all-but-guaranteed
conviction," Hermes said.

But two elements could add fresh legal intrigue to Bartkowicz's case.
The first is that Colorado's legal protection for medical marijuana
is written into the state's constitution, whereas other
medical-marijuana states have lower protection. Denver
medical-marijuana attorney Warren Edson said that could give
Bartkowicz a stronger argument that his prosecution violates states' rights.

"We don't really know," Edson said. "It's something we haven't been
able to argue in court yet."

The U.S. Supreme Court, however, has ruled in a prior case that the
federal government can regulate marijuana, even if it is grown, sold
and used entirely in a medical-marijuana state.

The other wild card is the Justice Department's October memo, which
said the government wouldn't target people in "clear and unambiguous"
compliance with state medical-marijuana laws. Hermes said it is
possible that defense attorneys could use the memo as ammunition in a
federal case. Indeed, there is a defense called
"entrapment-by-estoppel," where defendants argue the government
fooled them into breaking the law by leading them to believe what
they were doing was legal.

But prominent California medical-marijuana attorney Bill Panzer said
the memo likely doesn't offer enough protection for that defense.

"All it says," Panzer said, "is you might not want to go after a
cancer patient."