Prosecution of marijuana attorney could impact industry, fellow lawyers say

, Prosecution of marijuana attorney could impact industry, fellow lawyers say

Jessica McElfresh

By John Schroyer

The week before Memorial Day, California lawyer Jessica McElfresh was charged with multiple felonies by the San Diego County district attorney.

Her alleged wrongdoing? Conspiracies to commit a crime and obstruct justice and manufacturing a controlled substance.

But a number of cannabis industry attorneys have another word for the charges: retaliation.

The reason, they say, is simple. District Attorney Bonnie Dumanis was embarrassed that her office lost in court to McElfresh when a judge ruled the DA must return $100,000 to James Slatic and his family. The money was confiscated during a Drug Enforcement Agency raid of Slatic’s Med-West Distributors in January 2016.

The district attorney – whose office declined to comment for this story – filed felony charges against McElfresh, alleging the attorney helped Slatic cover up a cannabis concentrate manufacturing operation.

Several cannabis attorneys suggested Dumanis’ action was in response to her office’s defeat. They also warned the case could have a negative impact for other legal cannabis businesses.

‘Vindictive prosecution’

“This is clearly a vindictive prosecution arising from the court’s order that they return the seized funds,” said Henry Wykowski, a prominent MJ attorney from San Francisco. “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.”

Shabnam Malek, one of the founders of the National Cannabis Bar Association (NCBA), said she was “shocked” by the news McElfresh was being prosecuted.

“This is extraordinary to me. I’ve never heard of anything like this happening,” said Malek, also of San Francisco.

Leland Berger, an Oregon-based member of the NCBA, said he was concerned “that the prosecution coming, following her successful obtaining the return of funds … gives the impression that the prosecution is retaliatory.”

Even the most zealous prosecutors who go after cannabis businesses typically don’t also charge the business’ lawyer, precisely because attorneys are supposed to be above the fray. That’s what makes McElfresh’s situation stand out.

Industrywide attack

Many cannabis attorneys are viewing it the same way as Berger.

“An attack on any of us is an attack on all of us,” he said simply.

McElfresh declined comment for this story.

But Wykowski said he spoke with McElfresh after the charges were announced and offered not only emotional support but logistical and legal help as well.

“The entire cannabis community, and especially the cannabis bar, should stand up on her behalf,” Wykowski said. “I’ve already told her that whatever I can do, I will do. … This is just not proper.”

In a statement, the NCBA said it’s “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,” the statement continued. “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.”

Wykowski agreed the San Diego County DA’s action was “obviously calculated to have a chilling effect on the representation” for the cannabis industry.

What happens next?

The case against McElfresh may go all the way to trial, Wykowski said, in part because the charge of conspiracy to commit a crime is “so broad that anybody can be sucked into it.” But the case could be dismissed before that, he said.

“I’ve read the complaint,” Wykowski said, “and in my opinion, she did not cross that line.”

Wykowski and Berger agreed McElfresh’s case is an outlier that, in all likelihood, won’t become commonplace across the nation. But the case still must play out and could take a year or even longer, the attorneys said.

In the meantime, McElfresh will be able to continue to practice law, even with the cloud of prosecution hanging over her, Wykowski said.

“I don’t see an impartial jury convicting either (McElfresh or Slatic),” Wykowski said. “But I would hope that a jury would see, in Jessica’s case, that she was merely fulfilling her ethical obligation to represent her client, and that’s not a crime.”

John Schroyer can be reached at [email protected]

18 comments on “Prosecution of marijuana attorney could impact industry, fellow lawyers say
  1. Phil on

    This is par for San Diego. The Sheriffs department has been conducting raids on many localtions and taking anything they can. One local raid they went so low as to steal a mans wedding ring and then refused to give it back even when no charges were filed.

    • Robert Hunt on

      Sheriff’s department and DA are very different animals. This is much more serious than police officers acting badly and should alarm all attorneys who represent the industry.

  2. Carol Bloodworth on

    So Trump tactics are making its way in the legal realm of the new and exciting cannabis sector. I hope the case is dismissed!

  3. Morgan Glenn on

    San Diego is known as a Republican bastion of military and law enforcement types who have no concern for the constitution. They operate as a criminal gang and take orders from those who have never respected the will of the people. Cmon. Even the secret service isn’t afraid of cannabis anymore.

  4. moldy on

    District Attorney Bonnie Dumanis should have been fired years ago. She has inflicted great pain on the cannabis community over the years and should be locked up.

  5. William Clark on

    No one should promote the canard that marijuana is socially undesirable, or dangerous–inherently toxic–like pharmaceutical drugs. Or even that it is a ‘drug’, except in Merriam-Webster’s third and broadest definition, as something which affects the mind. By that definition, religion and television (‘the plug-in drug’) should also be included. In truth marijuana is a medicinal herb, cultivated, bred, and evolved in service to human beings over thousands of years.

    “The Nixon campaign in 1968, and the Nixon White House after that had two enemies: the anti-war left and black people. We knew we couldn’t make it illegal to be either against the war or black, but by getting people to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, break up their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.” –John Ehrlichman

    Prohibition of marijuana is a premise built on a tissue of lies: Concern For Public Safety. Our new laws save hundreds of lives every year, on our highways alone. In November of 2011, a study at the University of Colorado found that in the thirteen states that decriminalized marijuana between 1990 and 2009, traffic fatalities dropped by nearly nine percent—now nearly ten percent in Michigan—more than the national average, while sales of beer went flat by five percent. No wonder Big Alcohol opposes it. Ambitious, unprincipled, profit-driven undertakers might be tempted too.

    In 2012 a study released by 4AutoinsuranceQuote revealed that marijuana users are safer drivers than non-marijuana users, as “the only significant effect that marijuana has on operating a motor vehicle is slower driving”, which “is arguably a positive thing”.

    No one has ever died from an overdose of marijuana. It’s the most benign ‘substance’ in history. Most people—and particularly patients who medicate with marijuana–use it in place of prescription drugs or alcohol.

    Marijuana has many benefits, most of which are under-reported or never mentioned in American newspapers. Research at the University of Saskatchewan indicates that, unlike alcohol, cocaine, heroin, or Nancy (“Just say, ‘No!’”) Reagan’s beloved nicotine, marijuana is a neuroprotectant that actually encourages brain-cell growth. Researchers in Spain (the Guzman study) and other countries have discovered that it also has tumor-shrinking, anti-carcinogenic properties. These were confirmed by the 30-year Tashkin population study at UCLA.

    Drugs are man-made, cooked up in labs, for the sake of patents and the profits gained by them. Often useful, but typically burdened with cautionary notes and lists of side effects as long as one’s arm. ‘The works of Man are flawed.’

    Marijuana is a medicinal herb, the most benign and versatile in history. In 1936 Sula Benet, a Polish anthropologist, traced the history of the word “marijuana”. It was “cannabis” in Latin, and “kanah bosm” in the old Hebrew scrolls, quite literally the Biblical Tree of Life, used by early Christians to treat everything from skin diseases to deep pain and despair. Why despair? Consider the current medical term for cannabis sativa: a “mood elevator”. . . as opposed to antidepressants, which ‘flatten out’ emotions, leaving patients numb to both depression and joy.

    The very name, “Christ” translates as “the anointed one”. Well then, anointed with what? It’s a fair question. And it wasn’t holy water, friends. Holy water came into wide use in the Middle Ages. In Biblical times, it was used by a few tribes of Greek pagans. And Christ was neither Greek nor pagan.

    Medicinal oil, for the Prince of Peace. A formula from the Biblical era has been rediscovered. It specifies a strong dose of oil from kanah bosom, ‘the fragrant cane’ of a dozen uses: ink, paper, rope, nutrition. . . . It was clothing on their backs and incense in their temples. And a ‘skinful’ of medicinal oil could certainly calm one’s nerves, imparting a sense of benevolence and connection with all living things. No wonder that the ‘anointed one’ could gain a spark, an insight, a sense of the divine, and the confidence to convey those feelings to friends and neighbors.

    Don’t want it in your neighborhood? Maybe you’re not the Christian you thought you were.

    Me? I’m appalled at the number of ‘Christian’ politicians, prosecutors, and police who pose on church steps or kneeling in prayer on their campaign trails, but cannot or will not face the scientific or the historical truths about cannabis, Medicinal Herb Number One, safe and effective for thousands of years, and celebrated as sacraments by most of the world’s major religions.

  6. Grass Roots Industrial Park on

    This is a total waste of Public funds. Hopefully this will be dropped and not set legal precedence. Take this into another context, should criminal defense attorneys need worry they will be charged by the DA as a cohort to a crime if they choose to represent and defend a postulated criminal? Bonnie Dumanis is an embarrassment to Western State University College of Law and to the profession.

  7. Debbie on

    This needs to become a landmark case based on the Constitutional right of all Americans to have fair legal representation. This injustice absolutely can not stand, for the sake of everyone, not just cannabis clients.

  8. Debbie on

    Furthermore, even though Bonnie Dumanis has said she won’t seek re election in 2018, she should be subjust to recall through the petition process immediately. Her aspirations for higher office should be ended through appropriate political channels. This is one case where inaction by the cannabis community would ultimately affect us all.

  9. George Bianchini on

    This is why some of us are forced to protect ourselves with extraordinary measures. Cameras, cameras and more cameras, micro cameras in the safe, in the walls, in the ceilings. The law enforcement community systematically commit crimes against the cannabis business community. And people like Bonnie Dumanis are their permission slip to commit these crimes against the people. Back to the cameras, leave the standard 8 camera system with DVR for the enforcers. The first thing they do is to disable the camera system. Having about a dozen micro cameras covertly covering your operation in places like the safe, the office and all other places that directly upload to the cloud will protect your operation. It also protects the honest police as their incident reports are real facts instead of the fiction that many law enforcement rely on. I have actually seen the joy and excitement in their eyes when they bust a person for growing or selling the worlds least toxic plant. Too many of them really seem to get off on the bust.

  10. William W. West on

    Bonnie Dumanis has a closet full of skeletons, She diverted allocated funds from a federal grant to pursue medical marijuana patients back in 2010 from “Endless Summer” to Operation Green Rx claiming they were purchasing medical marijuana on government land, which was not the case at all, then to top it off she placed one of her own on her “High Profile List” for 1/2 ounce of cannabis and 1/2 ounce of hashish. This in itself sounded funny since every day less than 30 miles away they (Mexico) brings in tons of meth and coke along with cannabis, yet none of those made her “High Profile List”. San Diego is a testing ground for fake laws and punishment of people that try to follow the AG guidelines and co-exist with the people.

  11. Peter Signoretto on

    Anyone that punishes or causes harm to someone that grows, sells or uses a harmless herb is a felcher! That also goes for the DA in this instance.

  12. Andrew Smith on

    Bonnie Dumanis license should be canceled as she doesn’t deserve to be a lawyer and is an embarrassment to the reputation of the legal profession. Such type of lawyers is harmed to the innocent people.

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