Co-founder alleges jury misconduct, seeks new trial on charge
The co-founder of Denver’s International Church of Cannabis believes he’s entitled to a new trial on public-consumption charges after a member of the jury that convicted him alerted the court that the panel improperly discussed the case before it was over and prematurely reached its conclusion.
It’s the latest twist in a two-year saga that already has seen one mistrial.
A six-person jury found Steve Berke guilty on Feb. 1 of public consumption of marijuana and violating the Colorado Clean Indoor Air Act in an unusually long four-day municipal trial. The case was the first attempt at answering a question that has confused Denver pot smokers since legalization: What defines open and public consumption of marijuana?
Berke was fined $50 for the two convictions.
On Tuesday, Berke’s attorney, Rob Corry, filed a motion in Denver County Court seeking a new trial due to jury misconduct. In the motion, Corry said a juror submitted an affidavit to the court, stating that the “jury had discussed the facts of this case as early as Day 1 of the four-day trial, and that individual juror had formed impressions and reached conclusions in violation of the Court’s instructions given multiple times.”
It is standard procedure in jury trials for the judge to bar jurors from talking about the case before its conclusion.
The affidavit, the defense motion claims, also stated that the court clerk heard these improper jury discussions firsthand, and admonished the jurors for talking about the case. At least one juror, the motion said, knew that these pre-deliberation discussions could be grounds for a mistrial.
It is not known if the clerk reported these discussions to Judge Johnny Barajas.
The city filed an objection, arguing that jury verdicts cannot be impeached by affidavit except in very limited circumstances. City Attorney Rebekah Watada said Tuesday that she could not comment on pending litigation.
The juror is not identified in the defense motion, and the affidavit was filed under seal. Barajas, at the conclusion of Berke’s trial, had ordered the names of the jurors be kept secret.
Berke said he can’t see how the judge doesn’t declare a mistrial.
“I clearly had a prejudiced jury who apparently did not want to consider the evidence,” Berke told The Denver Post on Tuesday. “They believed that I was guilty from Day One.”
He said he looks forward to a new trial.
“I’d probably take the stand this time,” he said.
Corry said these juror revelations “implicate Steve’s constitutional rights.”
“I’m very optimistic that we’ll get a new trial granted,” he said.
The case stems from a 4/20 event held at the church on April 20, 2017. The trial centered on the definition of what constitutes “open and public” consumption of marijuana, which is illegal. The city successfully argued in this latest trial that the event was public because undercover cops were able to get into the building.
But this case already has seen one mistrial — in March 2018 — when a judge was unable to seat a jury after four potential jurors openly questioned the city’s theory about the case.