Pubdate: Fri, 02 Dec 2005 Source: Rocky Mountain News (Denver, CO) Copyright: 2005, Denver Publishing Co. Contact: http://www.rockymountainnews.com/ Details: http://www.mapinc.org/media/371 Author: Alan Gathright, Rocky Mountain News Bookmark: http://www.mapinc.org/pot.htm (Cannabis) POT DEFENDANT PROMISES FIGHT OVER CITATION Denver pot-bust defendant Eric Footer had to negotiate five backpedaling TV cameramen as he strode into the courthouse Thursday to obtain a Jan. 18 court date where he vows to fight a local citation issued under state law. That was the easy part. Now, his three-lawyer defense team has to successfully argue that the 39-year-old real estate consultant justifiably believed he could possess a tiny amount of marijuana because Denver voters passed Initiative 100 on Nov. 1. Ostensibly, at least, the initiative made it legal under city law for adults 21 or older to possess 1 ounce or less of the drug. "With the passage of I-100, Mr. Footer made the good faith, reasonable assumption that the possession of small quantities of marijuana by responsible adults was now legal in Denver," said Brian Vicente, an attorney who heads the marijuana advocacy group, Sensible Colorado, and is a member of Footer's defense team. But legal experts are skeptical that Footer can defeat the position of Denver authorities, who maintain that state law trumps the local ordinance. Officials from the city attorney's office say they have no choice but to continue prosecuting violators under the state possession law - as about 95 percent of minor marijuana busts have long been handled. Denver defense attorney Scott Robinson said it sounded as if Footer's team was engaging in "pretrial wishful thinking." A confident Vicente, however, laid out these potential defense tactics: The "mistake of law" defense. Under Colorado law, a person who reasonably misunderstands a state law because he genuinely believes he's shielded by passage of I-100 can be found not guilty. Home-rule cities, such as Denver, have historically been granted "great deference by courts in governing matters of local concern such as safety matters." Employing a "choice of evils" defense, attorneys may argue that Footer was justified in smoking marijuana as an "emergency measure" to treat a painful back condition and avoid the "private injury" risked by using alcohol, "a far more dangerous substance than marijuana." Robinson, who writes a legal analysis column for the News, said, "I laud them for being creative, but also I have to note there's a degree of naivete involved if they think they're really going to win on any of those defenses." Robinson wasn't the only expert not persuaded. Under state law, the "choice of evils defense talks about when it is necessary as an emergency measure to avoid an imminent public or private injury," said former prosecutor Karen Steinhauser, an adjunct professor at the University of Denver's Sturm College of Law. "This is not going to apply, (that) it was better to get high on marijuana rather than . . . on alcohol." As for the "mistake of law" defense, Robinson said: "The old saw that ignorance of the law is no excuse still cuts pretty well." Robinson also sides with the city attorney's argument that while Denver can invoke its home-rule autonomy to enforce ordinances that are tougher than state law, such as the city's pit bull ban, Denver can't substitute laws weaker than the state's. Simply put, Robinson said, "You can't water down the state law with a local ordinance." Both Steinhauser and Robison agreed with I-100 supporters that Denver police and prosecutors could use "prosecutorial discretion" and choose not to arrest or prosecute people caught with a bit of marijuana. But Robinson warned that if city leaders issued a policy against prosecuting pot possession, Denver could risk losing federal crime-fighting funds. - --- MAP posted-by: Beth Wehrman