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January 15, 2013 at 6:50 AM

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Why is Bellevue still charging marijuana possession cases?

Last May, a Bellevue police officer found seven grams of marijuana in the car of a 26 year-old tech-industry worker. There is no evidence driver, Aaron MacPhee, was high or drunk; he had no criminal history; he just had a few joints worth of pot.

In November, voters voiced — no shouted — their disapproval of low-level marijuana possession charges. At least nine county prosecutors dismissed such pending cases after the election, citing the "will of the people," and acknowledging the difficulty of getting a jury to convict.

But the case against MacPhee continues. On Tuesday, his attorney, Scott Leist, is arguing for a dismissal in the Bellevue division of King County District Court. He cites a 1934 U.S. Supreme Court ruling from end of alcohol prohibition, which tossed a criminal case against apparent bootleggers because prohibition was "deprived of force" by the end of prohibition.

The analogy with marijuana prosecutions today is spot on, said Leist, a former Seattle police officer and prosecutor. "We’re talking about a crime that is not even a crime anymore," he said.

Bellevue city prosecutor Susan Irwin disagrees. MacPhee knew he was committing a crime, Irwin said, and Initiative 502 is not a retro-active get-out-of-jail free card.

"Even though the law has now changed, it was in a effect at the prior time," said Irwin. Dismissing this case, she said, would be unfair to the people who were convicted of misdemeanor marijuana possession in similar circumstances.

I doubt those folks would care. More importantly, prosecutors consistently talk about exercising discretion, directing limited resources to important cases. This prosecution sounds like a statement, even though Initiative 502 easily passed in Bellevue.

Others will be listening. Leist said he's heard from several other defense attorneys, with similar pending cases in Bellevue, who'll be watching the outcome on Tuesday.

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