Jul 8, 2015

Teenage Sex Offender Sentenced Harshly

Convicted sex-offender
Zachery Anderson
Often, our law firm represents someone accused of criminal sexual conduct. In such cases, one of the penalties is being listed on the sex offender registry -known as SORA in the industry- as a component of the sentence.

These days there are not many things worse than being labeled a sex offender. There are many cases, however, where if the details were known, they would reveal that the convicted offender is not a monster at all but rather, someone that exercised poor judgement on a single occasion.

Examples include so-called "Romeo and Juliette" situations where the accused is only a few years older than the all-too-willing victim. Other tough cases involve situations where the victim lies convincingly about his or her age.

In Michigan, 17 is the age of legal consent for sexual activity; younger than that and the older person can be charged with criminal sexual conduct.  This is what happened in the case of a 19-year old young man from Indiana when he crossed the state line into Michigan for a sexual liaison. The object of his affection lied, telling him she was 17 when in fact, she was only fourteen.

The couple "hooked-up" on the Hot or Not app. This app, like Tinder, allows for easy access to a multitude of profiles.

Unfortunately for Zachery Anderson, by the time his love interest returned to her home in Michigan, the local sheriff was already there, conferring with her very-concerned mother over her sudden albeit temporary disappearance.

Anderson was charged with criminal sexual conduct in the 4th degree, a misdemeanor. At his sentencing hearing, however, the district court judge denied Anderson's request for the age-based deferral status and required him to register as a sex offender.

Not getting youthful trainee status was a huge blow, requiring Anderson to register with the Michigan State Police for the next 25-years. He cannot have an email address; he cannot live near a park -his parents live near a boat launch on the St. Joseph River which is deemed to be a "park"; he cannot access the Internet which he needs to do for his computer science major.

At his sentencing hearing, even Mr. Anderson's victim called for leniency, but to no avail. Instead, the district court judge sentenced him to 90-days jail, denied Holmes Youthful Trainee status, and required Anderson to register on SORA. In doing so, the judge criticized Anderson's uses of the social media app "Hot or Not" and the casual hook-up culture so prevalent among teenagers.

In cases like these, the sentencing judge should take into account the relative ages of the participants. Under Michigan law, a victim cannot "consent" to sexual activity until attaining the age of 17. Also, consider that, although not a complete defense to such charges, the uncontested fact that the victim held herself out to be of the age of consent should be taken into account by a sentencing judge.

Related: Although it will not assist young Mr. Anderson, we did note a few months back in this post that certain provisions of Michigan's SORA were deemed unconstitutional by a federal judge in Detroit.

Jun 12, 2015

Married to the Medical Marijuana Patient

Justice Richard Bernstein
Yesterday, the Michigan Supreme Court, in one of Justice Richard Bernstein's first opinions, held that when a husband-wife medical marijuana operation is not conducted in strict accord with the Medical Marijuana Act, the wife, whose role was limited to assisting with the harvest schedule, is not afforded immunity under the MMA. So let's break that down.

In the case, People v Cynthia Mazur, Oakland County Circuit Judge Colleen O'Brien denied defendant's request for immunity under the act because the grow operation conducted within the marital home was not in accord with the provisions of the MMA. Ms Mazur's role in the operation was limited to writing-out the harvest schedule of the pot plants on sticky notes.

Defendant's husband was both a registered marijuana patient as well as a care-provider. Ms. Mazur, however, was neither.

She appealed the trial court's denial of her request for immunity, but the Michigan Court of Appeals affirmed Judge O'Brien's ruling. The Supreme Court agreed to take a look. In its opinion, the High Court left the door open for the defendant, however, by ruling that her sticky notes detailing harvest dates constituted supplying hubby with "marijuana paraphernalia" as that phrase is defined in the act.

Accordingly, Justice Bernstein's opinion concluded that if these sticky notes were the prosecutor's only evidence, then the charges against Mazur had to be dismissed; the prosecutor could, however, rely on other evidence to secure a conviction, the Court held.

This case is the first of a triad of pot cases from the Oakland County Circuit Court to result in an opinion from the Michigan Supreme Court. Decisions in the two remaining cases are expected within the next few weeks as the High Court prepares to end its 2014-2015 term.

One of the take-aways from this case is that spouses of registered patients may avail themselves of the immunity of the MMA, even if they are not registered care providers or patients, if the operation is conducted in strict accord with the act.  If the operation is rogue or being conducted outside compliance with the MMA, then criminal liability can attach to the non-registered spouse.

We note, and perhaps this is the other take-away, that the Mazurs are now divorced.

Oct 21, 2014

Stoned Driving Gets Much Needed Legislative Attention

Social acceptance and decriminalization has equated to more people getting behind the wheel after they have consumed marijuana.  However, unlike alcohol, there is no standard measurement to determine whether someone has had “too much” weed while operating a motor vehicle; if blood is drawn and there is any THC, the active ingredient of pot, then the driver is in violation. 

THC metabolites can remain in your system for up to 30-days.  Thus, just because a driver has trace amounts of marijuana in their blood stream at the time of the arrest, does not prove the individual was feeling the drug’s effect at the time of the traffic stop.  Consequently, this gap in the law has left police, prosecutors, and Cheech and Chong with an incredible amount of uncertainty. 

When an officer pulls a driver over and determines they have probable cause to believe the driver is under the influence of a controlled substance, the individual’s blood is drawn to be tested for THC.  This is where the process gets complicated because unlike alcohol (.08), there is no specific threshold that defines what exact amount of THC in the blood means a person is under the influence at the time of operation.  [Note: in Washington state, the legal threshold is 5 ng/ml.]

In People v. Koon, the Michigan Supreme Court held that if you are a medical marijuana patient, you may operate a vehicle with THC in your system, so long as you are not impaired or under the influence.  From a practical standpoint, this holding makes little sense.  For example, this blogger fails to understand why it is safe for Mr. Cheech to operating his vehicle with marijuana in his system because he has his medical marijuana card, but unsafe for Mr. Chong, because he lacks the state certification.       

Law enforcement and members of the driving public need a standard to measure the legality of operating a vehicle when the driver uses marijuana.  Currently, patrol officers use methods akin to conducting field sobriety tests. 

Training is available but it is expensive, and takes 3-weeks.  Most officers will admit they simply use the same subjective tests that are administered for “drunk” drivers –glassy eyes, smell, speech.  This is not a technical analysis. 

Last week, Governor Snyder signed legislation to allow police to conduct a preliminary roadside analysis for control substances.  However, until the actual statute is published, and it regulations are developed, little is known about the mechanics of how these tests will be performed. 

Earlier this year lawmakers removed a provision from legislation proposing a roadside saliva test for controlled substances after concerns were raised about scientific accuracy.  Thus, it appears that until marijuana impairment is better understood, it will be up to police officers to make a subjective assessment as to whether a driver is “under the influence” of a controlled substance when operating their vehicle. 

This makes us a bit uncomfortable over here at our law firm.  If you or a friend have recently been subjected to a roadside sobriety analysis, you may want to give us a call to discuss your options.

Jul 28, 2014

Blood Draws May Require a Warrant in Some Suspected Drunk Driving Cases

By: Brent Scott

If you are of the opinion that our government is already too invasive (think PRISM – the clandestine mass electronic surveillance data mining program launched by the NSA back in 2007), you may not want to read any further.  Did you know that by merely obtaining a driver’s license you are also consenting to a blood test? 

Michigan’s implied consent law provides that a person operating a motor vehicle is considered to imply his consent to have chemical tests of his blood, breath, or urine to determine the amount of alcohol or a controlled substance if the person is suspected of operating while intoxicated.

Now, courtesy of a recent SCOTUS decision, the pendulum may be swinging in the other direction.  In a 5-4 decision, authored by Judge Sonya Sotomayor, the Supreme Court agreed with Tyler McNeely’s defense counsel that an involuntary blood draw is a "search" as that term is used in the Fourth Amendment.  

A technical reading of this decision is that a search warrant is generally now required for a blood sample to be withdrawn from a suspected intoxicated driver’s body.  However, as our SCOTUS likes to do, it opened the door for an "exigent circumstances" exception in some drunk-driving situations where a warrant would not be required.

Specifically, in McNeely, the Defendant was stopped for speeding.  McNeely was asked to submit to an alcohol breath and blood test, both of which he refused.  When the hospital staff took a blood sample without the arrested driver’s consent, the result was that McNeely's blood-alcohol levels were above the legal limit; he was charged with driving while intoxicated. 

McNeely’s defense lawyer moved to suppress the test arguing the blood draw constituted a search and the officer needed to obtain a warrant.  After all, the officer testified at the suppression hearing that he had time to obtain a warrant, but simply chose not to.   

So where does this leave us?  It appears that prosecutors are barred from arguing that implied consent searches are “per se” valid and constitutional because a blood draw is a "search".

Justice Sotomayor’s decision states:
We hold that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant…. "In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.
However, as the loony Lee Corso likes to say, “not so fast my friend.”  The Court also reiterated that police are not required to get a warrant if there is some true exigency:
 We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test. That, however, is a reason to decide each case on its facts, as we did in Schmerber, not to accept the “considerable overgeneralization” that a per se rule would reflect…” and …"exigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process.
Well that certainly clears it up for me…   

From a practical standpoint, it is tough to tell how the McNeely ruling will play out on the highways and byways of America.  On one hand, metabolism does not automatically create an exigency thus, a warrant is called for.  On the other hand, since a warrant takes time that creates a delay where alcohol will be metabolized and eliminated from the suspect’s blood stream, minute by minute by minute. 

While time seems to be the key element in the evidence preservation equation, the High Court did not elaborate on what the exigent circumstances might be to trigger an application of the exception.

Perhaps law enforcement will be able to streamline the warrant process in drunk driving cases – I’m sure the district court judges will love being woken up at 2:00 a.m. to make probable cause determinations. 

Bottom line: the explicit recognition that some chemical tests require a warrant is certainly a good thing for defense attorneys and for the rights of the accused.  As always, it takes good lawyering to figure out how to best use the McNeely case. 



Jan 8, 2014

The Plea

This is a post that received recognition as the 2013 "JDog Memorial Blawg Post" for the best post on criminal law, in the opinion of Scott Greenfield, a prolific law blogger over at Simple Justice and a veteran criminal defense lawyer from New York City.

It is Tuesday at 9.30am and I am in the booth.

The booth is a tiny box where I have the honor of talking to my client through an inch of bullet-proof glass. I say “talking”, though it’s really more like yelling, since it’s pretty hard to hear through that glass.

“Booth” is a misnomer too. “Booth” reminds me of the precursor to something fun. You buy tickets to a movie or carnival rides at a booth. No such fun was happening today.

Really, the booth is purgatory, a limbo my clients sit in after they’ve made their way from the prison and to the courthouse basement’s holding cells, but before they enter the courtroom where they await final judgment.

This particular morning, I am wearing a navy flannel Brooks Brothers No. 1 sack suit, a white shirt I freshly pressed at 5.30 that morning, and a somber tie that reflected my mood.

In gross juxtaposition, my client is in an orange prison jumpsuit and has a thermal on underneath to keep warm. I guess this hell follows Dante’s rules.

My client is a good man who’d recently made a series of terrible decisions, all of which led to where he is today. Despite his cock-ups, he was truthful and admitted his mistakes not only to his family, but to members of his community.

Then the police became involved.

And he got arrested.

And his mistakes became a “case.”

And that’s how we ended up on opposite sides of the same sheet of glass on Tuesday at 9.32am.

Today, he is ready to plead guilty to the charges against him. In exchange for giving up his Constitutional right to a jury trial, he is offered a sentence far less than what he would see if he were found guilty at trial.

Though we’ve already done this before back up at prison, I review with him one last time his written guilty plea colloquy, and explain to him word by word the rights he is giving up by pleading guilty. I’m reading it to him like I’d read “Hop on Pop” to a kindergartner.

But he’s not a kindergartner. He’s a grown man. And this isn’t “Hop on Pop.”

It’s 9.34am. I’ve finished reviewing the colloquy with him. He’ll sign it out in the courtroom, since now his hands are shackled behind his back and we’re separated by an inch of bullet-proof glass.

It’s 9.35am, and I can only watch as my client sobs and tears stream down his face.

You see, up until this point he’s been a man of god. An educated guy, he’s worked the same job for the last 25 years, and been married to the woman he loves for the last 30. He’s lost all of that now.
(Did I miss the day in law school they taught you how to handle this?)

According to the arrangement with the District Attorney’s office, he faces up to five years in a state correctional institution for the crimes he’s pleading to. If he’s really good (including credit for time served) he’ll get out in about two years. If he runs into problems in prison, he’s going to miss his son’s high school graduation.

I ask him if he as any more questions for me before we go into the courtroom.

“Lord Jesus, what have I done? Will God forgive me? My wife’s left me. Leo, what am I going to do?”
He spits out this sentence between sobs. A man, broken. But in an instant, he musters up all the dignity he has left. He toughens up his features and tries to wipe his eyes on his elbow—which is difficult seeing as his arms are handcuffed behind his back—and puts on an air of stoicism.

And I tell him. “Bill [not his real name], when the court officer asks you how you plead, you say ‘Guilty’”.
He nods.

According to that fancy framed piece of paper from the Pennsylvania Supreme Court hanging on the wall of my office, I’m an attorney and counselor at law. But the three years of schooling and two years out in practice hadn’t prepared me for this—telling a grown man, through bullet proof glass, who until thirty seconds ago had been crying like a baby, that he was going to be spending the next five-ish years of his life outside of the city he’s lived in his whole life, shipped out to Bumblesuck, Pennsylvania (which alone would be enough of a shock) to take up residence at the taxpayer’s expense in a state correctional institution. And I can tell you that a state correctional institution is no Sandals resort. Hell, it’s not even a Howard Johnson.

“Leo, what am I going to do with the rest of my life?” He asks me. While his expression is still stoic, his bloodshot, watery eyes belie his terror. That look—the feeble attempt to cover fear with toughness—it’s a look that will quickly become familiar to me.

At 9.37am, two knocks on the door interrupt us. The court crier pokes his head in. “The Judge is ready,” he says, then shuts the door behind him.

I stand up. Bill stands up, hands cuffed behind his back, and the sheriff walks in prepared to lead him out to the courtroom.

Through the glass I shout: “Bill, I’ll see you inside. It’s been my honor to represent you. Remember — everyone is better than the worst thing they’ve ever done.”

I turn and walk out of the booth, prepared to meet my client in the courtroom for judgment.


Leo Mulvihill, Jr. is a criminal defense lawyer from Philadelphia, PA.  We here at the electronic criminal lawyer can appreciate his experience and his sentiments; we've been there with some of our clients. Defending the accused can be a rough road at times.  Few cases go to trial; the majority end with some sort of plea.

We cannot help but wonder what crime Mr. Mulvihill's client pled to, and what sentence was meted out by the judge.  From the tone of the post, sounds like the client was headed to prison.

Jan 6, 2014

Governor Cuomo Announces [Limited] Medical Marijuana for New York

By:  Timothy P. Flynn

Later this week, New York Governor Andrew Cuomo is scheduled to announce, in his State-of-the-State address, an executive initiative allowing the limited use of medical marijuana under a set of narrow circumstances.  This is surprising given the Governor's opposition to medical marijuana and given New York's long-standing tough drug laws; some of the toughest in the nation.

The announcement is also surprising given the perennial attempt made by some of the assemblymen in Albany to pass a medical marijuana bill. While the pot bills seem to shoot through the Assembly, they die in the state senate due to the opposition from a staunch caucus of career anti-pot senators.

To get this accomplished, Governor Cuomo, in addition to his change of heart, is utilizing a little known but long-standing provision in his state's public health law.   The proviso, known as the Antonio G. Olivieri Controlled Substance Therapeutic Research Program, allows for the limited use of controlled substances such as marijuana to treat cancer glaucoma, and other diseases "approved by the [New York State Health] Commissioner."  With the Governor's sudden support, as many as 6 hospitals will be selected this year to administer the program and the administrative "red tape" will be dispatched with presumed executive enthusiasm.

For the record, Antonio Olivieri was a New York City councilman and state assemblyman who died at the relatively young age of 39 from a brain tumor.  He was an early proponent of the use of medical marijuana, using it himself to alleviate the effects of his chemotherapy treatments until his death in 1980.

Of course, this comes as big news in New York, with the initiative touted in an above-the-fold article in Sunday's NYT, which is where the simple minds over here at this law blog first heard of the  policy switch.  According to the NYT, Gotham issued nearly half a million pot-related misdemeanor tickets in the decade from 2002 through 2012.

Although this development represents a shift from Governor Cuomo's anti-medical marijuana stance, New York's law is very limited, with tight controls envisioned to prevent abuse.  And let's not forget that Cuomo is up for re-election in November in a state where, at least according to one college poll, 57% of the voters support legalization of medical marijuana.

When they get around to implementing this medical marijuana program, New York becomes the 21st state in addition to the District of Colombia to legalize medical marijuana.


Dec 25, 2013

Convicted Chicago Cocaine Dealer Seeks Executive Clemency for Christmas

Drug lifer Jesse Webster
Last week, reading the Sunday NYT, I came across an article about Jesse Webster's plight in the federal penitentiary in Greenville, IL.  Webster's first and only conviction was handed down in 1996 for trafficking in cocaine.

Unfortunately for Webster, a former drug dealer from Chicago's South-Side, he caught his case back in '96 when the mandatory minimum sentencing guidelines were at their harshest.  Doubly unfortunate for Webster, his was a federal conviction rather than one under Illinois state law.

The thrust of the article was to illustrate the plight of non-violent drug dealers and their arguably "victimless" crimes.  Over the years, I've come across similar media coverage for Michigan's drug lifers [most of whom have been set free by now], and one case from Indiana where a convict was sentenced to life without parole on a marijuana manufacturing and delivery conviction; he was busted with over 100 pounds.

Dan Barry of the NYT profiled Webster, drawing comparisons to his prison buddy, Reynolds Wintersmith, Jr., a former crack cocaine dealer from Rockford, IL.  The two spent 16-years at the Ft. Leavenworth penitentiary in Kansas.

Like Wintersmith, Jesse Webster wrote to President Obama seeking executive clemency and a commutation of sentence.  Unlike Webster, however, Wintersmith's request was granted by Obama along with 8 other petitions for a commutation of sentence along with an additional 13 presidential pardons.

Webster's number has not yet come up.  The ACLU estimates there are about 2800 federal prisoners doing life sentences for "non-violent" drug offenses.  Of these convicts, the NYT suggests that there are dozens, if not hundreds, of first offenders or convicts with only a juvenile record before catching the "bullet".

These days, the federal sentencing guidelines have softened a bit when it comes to mandatory minimums in drug crimes, particularly after the passage in 2010 of the Fair Sentencing Act.  More recently, the DOJ signaled a significant shift away from harsh mandatory minimum sentences and announced an end to the so-called "war on drugs".

This shift, however, has not aided men like Webster who have been caught in the federal drug enforcement machine and are getting the life squeezed out of them one day at a time.