By Anne Stanton
Archie Kiel of Rapid City is out of jail after serving 42 days for the
felony conviction of possessing and manufacturing less than 20 marijuana
plants. Kiel was the subject of a story on medical marijuana growers in
the Express in August, 2009 and has been in one legal battle after
another ever since.
He is appealing his conviction with the state Court of Appeals and has
been assigned an appellate attorney. Kiel said he wants the felony removed
from his record in order to become a medical marijuana caregiver again.
Kiel believes he has a good chance of winning because a Court of Appeals
ruling in mid-September states that a caregiver does not have to present
medical marijuana cards for his patients in order to use whats called an
affirmative defense. That decision came three weeks before Kiel was
sentenced on October 6.
During his trial, Kiels attorney was prohibited from using the
controversial affirmative defense because Judge Janet Allen of the 46th
Cirtcuit Court banned any discussion. She ruled that the affirmative
defense contradicted another portion of the Medical Marijuana Act.
Kiel said that his newly hired attorney, Mike Maddaloni, should have filed
an emergency motion for a new trial after getting paid a $4,500 retainer,
but never did.
He really disappointed me, let me down. All he told me, told my family,
was he was working on it, working on it. He originally told me he wouldnt
file a motion for a new trial because he didnt think the Kalkaska courts
would honor the law as it was written, Kiel said.
By the time Maddaloni got around to scheduling a hearing date for a new
triala week before Kiels release from jailKiel decided to appeal his
case to the state Court of Appeals rather than take his chances with Judge
If a new motion wasnt approved by Judge Allen, I would plain be
screwed, he said.
To illustrate the significance of the affirmative defense decision,
Kalkaska Assistant Prosecutor Kirk Metzger dropped felony charges on
November 5 against another medical marijuana caregiver Terry Provost, who
was unable to present any medical marijuana cards or patient paperwork
when his house was raided on May 18, 2009.
It was only many months later when Provost came up with proof that the
patients had qualifying medical conditions at the time he was raided.
Thats in contrast to Kiel who was able to present proof of doctor
approvals and/or medical marijuana cards for himself and all five patients
at the time of his raid on August 13, 2009.
Terry even answered the door with a loaded 9 millimeter pistol, Kiel said.
Provost, also represented by Maddaloni, said he had the gun because he was
just robbed, allegedly, by his estranged wife and thought she was back
again with her friends to steal his truck. When Provost realized police
officers were at the door, he put his pistol in the back of his pants, and
it dropped to the floor. Deputies seized Provosts guns, swords, grow
lights, and plants. None of the items have been returned. (Provist is
trying to get back a rifle given to him at the age of 14 by his father,
but has been refused because it was stolen from the Detroit Police
Department some 40 years ago.)
Kiel said he is filing paperwork to prove Kalkaska Prosecutor Brian
Donnelly used extreme prejudice in his caseHe didnt acknowledge the
Court of Appeals affirmative defense decision when he demanded I go to
jail. Its a mess. But its what needed to be done. This is what we were
trying to clear up for everybody, and in the end it will help everyone
Kiel said this relatives and friends paid $4,528 in court fines and costs
to earn him an early release from the five-month sentence. He also earned
10 days for good behavior and five days for a rehab class. While serving
his jail sentence, Kiels health deteriorated and he was taken to Kalkaska
Memorial Health Center, he said.
I was barely able to walk without hanging onto walls, he said. You
cant take pain medicine when youre in jail. So I didnt sleep and it
stressed my brain and heart rate. I had a three-week migraine, double
vision, and I thought something was seriously wrong with one side of my
brain. My left eyeball was sucked back in my head, my left ear didnt
work, and I was numb on the left side. They said it was extreme stress and
my spine was a wreck.
After Kiel was discharged on November 17, his son drove him to Munson
They wanted to give me steroid injections on my spine, put me on a
morphine drip for the pain, and knock me out for two days because they
were worried about stress levels. My body was a wreck. But I didnt want
to stay, so I had to sign a paper that I refused to be admitted, and sign
another paper on what to do in case I didnt make it.
Kiel said he plans to file formal complaints against Donnelly, Maddaloni,
and Probation Officer Sharon Wagner, who is married to Detective Wagner,
the lead investigator in Kiels case. She wrote in her pre-sentencing
report that he had no physical handicaps, Kiel said.