Jim Kenyon: Pot Case Still Smoldering

Published: 4/3/2016 1:39:52 AM
Modified: 4/5/2016 10:58:28 AM

About a year ago, Tom Orkney, a disabled Navy veteran, was arrested by Lebanon police at one o’clock in the morning for smoking marijuana in his own home.

Why police bothered is a mystery to me. Even a bigger mystery is why, 11 months after Orkney’s arrest, the cops and city prosecutor are still coming after him. His case remains pending in Lebanon District Court with no end in sight. The waste of time and resources is mind-boggling.

I’ve written a couple of times about Orkney’s ordeal. He suffered a serious head injury 40 years ago while serving overseas, according to the military medical records that he and his wife, Kari, shared with me.

Orkney, 59, began using medical marijuana with a doctor’s permission in 2010 to combat severe headaches and a mood disorder. He saw pot as a benign alternative to Vicodin, a powerful and potentially addictive prescription painkiller that Veterans Affairs doctors had been giving him for years.

Orkney had a license from the state of Washington, where he lived before moving to New Hampshire, to “engage in the medical use of marijuana.”

Orkney used his license, issued by his physician in 2014, to purchase marijuana at a dispensary in Washington.

None of this mattered to Lebanon cops at the time of his arrest — and apparently still doesn’t. They’ve gone through the time and expense of compiling a 49-page case file for a misdemeanor charge that carries no jail time and a maximum fine of $1,200.

But this is what Lebanon police do. Last year, marijuana busts accounted for 157 (65 percent) of the department’s 240 total drug arrests. That’s three pot busts a week.

Along with pulling Orkney’s driving record in Washington, police also checked with the FBI and Bureau of Immigration and Customs Enforcement. (Big surprise: Orkney isn’t an illegal immigrant.)

Police also went onto Orkney’s Facebook page, which included such incriminating evidence as weather reports (“79 and sunny today”).

It appears the cops were using Orkney’s Facebook posts to show that he had been living in Lebanon for eight months prior to his arrest, which from their viewpoint, invalidated his Washington medical marijuana license.

The police file also included the column that I had written about his arrest in May 2015. I’m not sure what that could prove — Orkney already had acknowledged to police that he had smoked pot that night. But I’m glad to see Lebanon cops subscribe to the paper.

Although parts of Orkney’s file are stamped “Confidential Record, Do Not Copy,” I had a chance to look at it because Lebanon Police Prosecutor Ben LeDuc was required to provide the file to Orkney’s attorney, Brandon Ross, of Manchester. When I asked, the Orkneys emailed me the file last week.

Ross told me that the amount of time he’s spent on the case, combined with the work that police have put into it, “exceeds the maximum fine that (Orkney) could receive by thousands of dollars.”

“It’s just an absolute waste,” Ross said.

A brief refresher on how the case began:

On April 25, 2015, three Lebanon officers entered an apartment building on School Street to investigate a “domestic issue.”

Sgt. Richard Norris wrote in his incident report that “while speaking with one of the parties involved in the domestic issue in the common hallways of the apartment building, I could smell the strong odor of freshly burnt marijuana.”

The cops deduced the odor was coming from the Orkneys’ apartment next door. Kari Orkney, who had been asleep, answered their knock. Before the Orkneys could gather their wits, the cops were inside the apartment.

“The three of them just bulled their way into our home,” Tom Orkney said.

Officer Adam Fisher spotted a box on the living floor that turned out to contain a bag with roughly a half ounce of marijuana and paraphernalia.

Orkney pulled out his medical marijuana license from Washington. “I had read the law thoroughly,” he said. “I figured that I qualified” to use medical marijuana in New Hampshire.

The cops chose to disagree. On went the handcuffs, and a ride in the back of a cruiser to the Lebanon police station to be photographed and booked.

The Orkneys aren’t wealthy people. So imagine their relief when Ross offered to take the case for free.

Early on, Ross asked police to consider dropping the charge.

In 2013, New Hampshire had passed a law allowing for the medical use of marijuana, but it has yet to be implemented even now. Complicating matters further, New Hampshire law regarding medical marijuana licenses issued in other states is a bit ambiguous.

“Mr. Orkney is an older man with a brain injury who tried to do everything right,” Ross said. “He got all the paperwork (from Washington) that he should have gotten. Unfortunately, the law is terribly worded.”

I suspect Lebanon police didn’t expect Orkney to put up such a fight in court. People charged with possessing small amounts of marijuana seldom get a lawyer. Police make an arrest, the accused pleads guilty, and the state collects a fine of $500 or so, plus $100 in court fees.

“They’re an easy money-maker for the state,” Ross said.

New Hampshire is the only New England state that hasn’t decriminalized the possession of small amounts of weed, which means offenders get saddled with a criminal record.

But it looked as though police were willing to make an exception in this case.

At the time of Orkney’s arrest, Lebanon still was using an officer without a law degree to prosecute misdemeanor cases.

The police prosecutor offered a deal: The misdemeanor charge against Orkney would be dropped if he pleaded guilty to violating a city ordinance that prohibits the possession of drug paraphernalia.

In all likelihood, Orkney would be hit with a fine of $100, which would be suspended upon 12 months of good behavior. Ross recommended he take the deal.

Before the plea agreement could be finalized, however, personnel changes took place in the police department. LeDuc, who is an attorney, was brought in to prosecute misdemeanor and traffic cases, for which he’s paid $79,000 a year.

When LeDuc came aboard, the deal went away, Ross said.


“I’m not privy to that information,” Ross said.

LeDuc said he couldn’t discuss the case because it’s still a court matter. But on Thursday, Police Chief Richard Mello was willing to sit down with me.

Mello became chief in December. I hadn’t met him, but had heard that he was a reasonable guy. Mello, 43, has spent more than 20 years in law enforcement, including seven years as a police prosecutor in Hollis, N.H. (He hasn’t been to law school, but has a master’s degree in criminology.)

Orkney’s arrest dated back to before Mello’s arrival in Lebanon, so LeDuc filled him in. Mello told me that LeDuc was unaware of his predecessor’s offer to reduce the charge against Orkney.

Although the decision still rests with LeDuc, I got the impression that the offer could be back on the table soon.

Unfortunately, Ross recently had to withdraw from the case; he’s cutting back on his pro bono work to focus on his paying business. “I feel bad that I couldn’t continue this one,” he said. “This case makes me so angry.”

The case is scheduled for a status hearing on April 11. As it stands now, Orkney will be going before a judge at the Lebanon courthouse without an attorney at his side.

“It hasn’t helped my stress level,” he told me. “I’ve had three heart attacks; sometimes it feels like I’m headed for another one.”

On Friday, I called the Orkneys, who moved to Surry, N.H., a small town near Keene, last year. I mentioned the possibility that Lebanon might renew its plea offer. Orkney seemed relieved.

“I don’t have many choices,” Orkney said. “I probably should take it.”

He’s probably right. He can avoid a criminal conviction, won’t have to come up with the money to pay a stiff fine, and can move on with his life.

And Lebanon police can still claim victory, no matter how much of the taxpayers’ money they wasted in pursuit of a petty offense.

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