The co-founder of the International Church of Cannabis finally got his day in court Tuesday, nearly two years after Denver police cited him for public pot consumption, and almost a year after a judge declared a mistrial in the same case.
Steve Berke, who co-founded the church with two others in April 2017, is fighting a misdemeanor charge of open and public consumption of marijuana, stemming from a 4/20 event at the church that year.
Judge Johnny Barajas seated a six-person jury Tuesday in Denver County Court, a jury selection that featured none of the fireworks from a year ago, when prospective jurists openly questioned the case presented by city attorneys, leading to the mistrial.
This time around, the jury pool was doubled to 40 people. The trial is expected to take two to three days, the judge said.
In what many believe to a first in Colorado, Barajas provided to both counsels a written definition of “open and public” consumption, which is the heart of the cases against Berke and his co-founders, who will face the same charges in later trials.
The maximum fine in the case is $300. But industry experts believe that while this case may not set full precedent for public consumption of marijuana in Denver, it may finally address a question that has confused pot smokers throughout the city since legalization five years ago: What’s considered public and what’s considered private?
The two-year dispute stems from an undercover operation by Denver police on the International Church of Cannabis during the church’s private, invitation-only 4/20 celebration, during which many of the 200-plus attendees smoked marijuana in designated consumption areas.
Casey Federico, assistant city attorney, argued in her opening statement Tuesday that this event was considered public because people without invitations — such as undercover cops — were able to get into the church that day.
Rob Corry, a marijuana attorney representing Berke, told a different story. In his opening statement to the jury, Corry said Berke and the other owners had their lawyers check with the city attorney’s office before the church opened to make sure everything was above board.
“The same city attorney’s office here today,” Corry said. “They said you can smoke cannabis inside as long as it’s invite-only and private.”
Barajas said he came up with a definition of “openly and publicly” by consulting the dictionary and public and decency ordinances.
“Openly means completely free from concealment: exposed to general view or knowledge,” the judge’s instruction said.
“Publicly means in a public place or where the conduct may responsibly be expected to be viewed by a member of the public,” the instruction continues. “Publicly also means in public, well known, open, notorious, common, or general as opposed to private, secluded or secret.”
When Berke read the judge’s document, his eyes lit up.
“This definition looks great for us,” he told The Denver Post. “The city is going to have a hard time proving based on this that we weren’t private. Really good news for us.”
Industry experts agreed.
“This is a dream instruction for the defense,” said Sam Kamin, a professor of marijuana law and policy at the University of Denver, when told of the judge’s definition. “The city’s theory has always been that a place a member of the public could gain access to is public.
“That doesn’t sound at all like the instruction the judge gave.”
A few of Berke’s supporters — as well as the church’s other two founders — came to watch the proceedings.
“I have faith in the people of Colorado,” said Lee Molloy, a Church of Cannabis founder. “We had the mistrial, and now these people (the jurors) seem like they’re not sure why they’re here.
“I don’t think they’ll convict us.”
