Judge clears 2 state workers of pot charges

A state district judge Tuesday dismissed charges against two governmental employees from Havre, accused of violating the law while working as medical marijuana caregivers, ruling that the state committed governmental misconduct and overstepped its legal bounds in conducting the investigation leading to the charges.

State District Judge Julie Macek dismissed all charges against sisters Delaine and Malisa Fitzpatrick, accused of selling more marijuana than was legally allowed, selling to a medical marijuana recipient who was not their patient, and having more marijuana on hand than was legally allowed by their number of patients.

Jeremy Yellin and Marta Farmer, attorneys for Delaine and Malisa Fitzpatrick, respectively, said they and their clients are very pleased with Macek's ruling.

"I am very happy that the judge took what occurred very seriously, " Yellin said Tuesday. "She didn't take this lightly at all. "

He added that the ruling shows that the facts do not always fit with "what appears to be the first blush on the cases. "

Whether the state will appeal the ruling has not yet been decided, Montana Attorney General Chad Parker, who prosecuted the case, said this morning.

"Whether or not to appeal is a decision that will be made in tandem with the appellate bureau, " Parker said. "At this time, I cannot comment beyond that. "

The main argument used in Fitzpatricks' motion to dismiss the charges was that illegal procedures were used in the sting operation to gather evidence against them.

Yellin and Farmer argued that the Montana Division of Criminal Investigation agent who went undercover had illegally obtained a fictitious driver's license and used that license to illegally obtain a medical marijuana patient card.

Yellin said Tuesday that many other arguments also fell into the motion — from the beginning, he and Farmer were concerned about how the investigation and case had been handled, including their belief that the Fitzpatricks had been targeted because they were government employees. Delaine Fitzpatrick, who was born in 1977, works for the Child and Family Services Division of the state Department of Public Health and Human Services. Malisa Fitzpatrick, born in 1982, is a state Juvenile Probation and Parole officer.

"Our clients are good people, good and decent people, and we were very concerned about how they were treated, " Yellin said.

The state Division of Criminal Investigation, the Tri-Agency Safe Trails Task Force in Havre and the Southwest Montana Drug Task Force-Region 3 began investigating the Fitzpatricks, registered medical marijuana caregivers in Havre, after informants began reporting the sisters were making illegal sales, the charging document said.

The reports included that the Fitzpatricks were selling marijuana to people who were not their registered patients in violation of the medical marijuana laws in effect at the time and selling more marijuana than was allowed under the law.

Between July 28, 2010, and Aug. 19, 2010, the agent made several purchases from the Fitzpatricks using his undercover Montana driver's license and undercover medical marijuana card. The telephone and face-to-face conversations preceding and during the transactions were recorded, as per a search warrant obtained previously, the document said.

On some occasions, the Fitzpatricks sold four ounces or more of marijuana to the agent, while the law in effect allowed caregivers only one ounce of prepared marijuana per patient, the document said.

After the sisters were arrested Aug. 19, 2010 officers searching their property found more than 10 pounds of prepared marijuana more than the Fitzpatricks could possess by their number of registered patients.

Farmer said Macek's ruling that governmental misconduct occurred in the investigation by using a fictitious license and medical marijuana card showed that the action of the investigators went much too far in their actions — the statute requires proof that shocking or outrageous conduct occurred, she said.

"My recollection was her using the term 'shocking' in what was displayed in this case, " Farmer said.

Yellin said the judge ruling that law enforcement must use legal means in investigations reinforces that the ends don't justify the means.

"This ruling in, our opinion, was a ruling for the people of the state of Montana as well as our clients, because what she decided is, we are a society of law, and if you are trying to fight lawbreakers, you cannot violate the law yourself, " he said.