Cannabis Attorney Prosecution May Hurt Industry
You’d think legalization is moving forward, then we move a big step back when sh*t like this goes up in smoke.
Just before Memorial Day, San Diego-based cannabis attorney Jessica McElfresh was charged with a slew of felony charges by the local DA, for suspected “conspiracies to commit a crime and obstruct justice and manufacturing a controlled substance.” What’s fishy is that many in the cannabis industry say these charges are District Attorney Bonnie Dumanis’ form of revenge as a result of losing a case against McElfresh.
It’s not rocket science. Dumanis could easily be using this to retaliate against McElfresh because she was embarrassed that her office lost a case, since the judge ruled that Dumanis return the confiscated $100,000 to James Slatic, which was originally taken during a DEA raid in Med-West Distribution back in January 2016, a company involved in the selling of medical cannabis products. People in the know say that this entire case is vindictive, and it can have a serious impact on cannabis businesses anytime soon.
DEA agents confiscated the entire inventory of Slatic, his business records, and more than $324,000 in cold cash. It doesn’t stop there – the DA even froze Slatic’s business accounts including those of his wife and stepdaughters, preventing them from accessing a total of $100,693.85 despite the fact that no one was formally charged of any crime. Since then, Slatic has been on a battle so that his family’s assets would be returned. The judge handling the case demanded that Dumanis return the $100,693.85, almost 6 weeks after Slatic’s attorneys successfully argued that the assets must be returned since it wasn’t part of the Med-West Distribution business.
In a news article released by Slatic’s law firm, Slatic says, “It is about time.”
“We did nothing wrong,” he adds.
What Other Cannabis Lawyers Are Saying
Even other cannabis lawyers have spoken their mind about this ussue. According to Henry Wykowsk, a San Francisco-based lawyer: “This is clearly a vindictive prosecution arising from the court’s order that they return the seized funds. As bad as that is in and of itself, this is clearly calculated to send a chill to the attorneys that defend cannabis businesses, that they can become targets.” Thing is, it’s really unusual to charge a lawyer in general.
But in this case, it could be used as a scare tactic, instilling fear in cannabis businesses and making it more difficult for them to get access to legal help which they have all the right to. Shabnam Malek, a founder of the National Cannabis Bar Association (NCBA) admitted that she was “shocked” by the prosecution of McElfresh. Malek adds, “This is extraordinary to me. I’ve never heard of anything like this happening.” According to Leland Berger, also an NCBA member based in Oregon, he’s worried “that the prosecution coming, following her successful obtaining the return of funds, gives the impression that the prosecution is retaliatory.”
NCBA released a statement, saying: "[they are] gravely concerned about the chilling effects that the handling of this case may have on attorneys serving cannabis industry clients, possibly resulting in the inability for this new industry to access competent legal services.
Several state bars have recently acknowledged the importance of ensuring that state-lawful cannabis businesses have access to legal services.
Access to legal services is necessary to help the cannabis industry comply with the myriad regulations designed to keep the public safe and marijuana out of the hands of children. Prosecutions like this one will undoubtedly serve to deter lawyers from representing clients in the cannabis industry for fear they, too, may be prosecuted."
Attack on Industry
Cannabis lawyers are on the same page as Berger. As he says, “An attack on any of us is an attack on all of us.” McElfresh refused to comment on this case, but Wykowski had a discussion with her after the charges were made public, and he offered moral, logistical, and legal support.
“The entire cannabis community, and especially the cannabis bar, should stand up on her behalf,” Wykowski says. “I’ve already told her that whatever I can do, I will do… This is just not proper.”
McElfresh may end up going to trial, according to Wyskowski, because charging a lawyer of a conspiracy to crime is “so broad that anybody can be sucked into it”. But there’s also the possibility of having the case dismissed before a trial happens.
Both Berger and Wykowski agree that this case is such an outlier that it probably won’t happen again anywhere in the country. However, it should still play out and unfortunately might even take a year or more to resolve.
Despite this, McElfresh can still continue practicing law despite the threat of prosecution, according to Wyskowski.
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