electronic criminal lawyer

The United States' Crime Clock

2012-01-22T12:24:00.000-05:00

I would not trade living in an open Democratic society for anything. Ours is a government of laws where personal liberties are ingrained into the societal fabric as rights.

Freedom comes at a price, however. One component of our Democratic society is the constant tension and interplay between our freedoms and the enforcement of our laws.

One of the costs we all pay at the national, state and local levels is the cost of enforcing our criminal laws. Some of us pay directly as crime victims; the rest of us pay indirectly in maintaining the much-needed law enforcement apparatus and court system.

Still others among us jack-up the costs of freedom by committing crimes. On a national level, the modern crime rate is truly shocking.

Here is a look at the crime rate in the United States according to U. S. Department of Justice:

Homicide. One person is murdered in the US every 31 minutes.

Rape. One person is raped or sexually assaulted every 2.7 minutes.

Assault. An assault occurs every 7.2 seconds.

Theft. A person is a victim of theft in the US every 2.3 seconds.

Burglary. A home is burglarized somewhere in the US every 9.1 seconds.

Domestic Violence. One woman is victimized by an intimate partner every 1.3 minutes; One man is similarly victimized by an intimate partner every 6.7 minutes.

Child Abuse and Neglect. One child is reported abused or neglected every 35 seconds.

Elder Abuse. An elderly person is victimized every 2.7 minutes.

Hate Crimes. Someone reports a hate crime to the police every 73 minutes.

Drunk Driving. A driver is killed in an alcohol-related highway accident every 29 minutes.

Identity Theft. Someone's identity is stolen in the US every 8.7 seconds.

Policing for these crimes; charging the crimes; hiring law enforcement and prosecutors; appointing lawyers; and allocating judicial resources for the prosecution, supervision and, in some cases, incarceration is a gigantic portion of our public budget.

Here in Michigan, the Department of Corrections is among the largest bureaucracies in the state government. We routinely keep legions of our citizens behind bars.

Somehow, we need to figure out, as a free society, how to reduce this population and cut these costs.

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Medical Marijuana Get Huge Boost in Oakland County

2012-01-13T08:20:00.004-05:00

Here is a post from renowned criminal defense attorney Neil Rockind. Apparently, Neil's big marijuana case resulted in all charges being dismissed yesterday by Oakland Circuit Judge Daniel O'Brien. Along with some other local "heavy hitters" from the criminal defense bar, this group of defense attorneys challenged prosecutions of dispensary owners.

Here is Neil's take on this significant development in the medical marijuana jurisprudence:

Twenty-four hours ago, I was sitting at my desk ruminating over the Hon. Daniel O’Brien’s ruling: the ruling that gave the seven (7) Clinical Relief Medical Marijuana defendants their freedom back. I am still thinking about the ruling today. How did we get here? What happened? It is much easier to contemplate these things knowing that we prevailed and that justice was done. When the case was dismissed, I knew that it was a big deal but a day, an overwhelming number of media requests and hundreds upon hundreds of supportive comments later, I now know that this was a REALLY, REALLY BIG DEAL!

On August 25, 2010, employees and operators were subjected to a narcotics team – Special Response Team Raid. The feeling of terror was only intensified by the employees feelings of betrayal and humiliation when they discovered that some of their patients were actually undercover police officers. Here the employees thought that they were helping these patients and instead learned that the police officers had duped them. They later learned even more: the officers had forged medical marijuana patient cards with the knowledge of at least one prosecutor, gained access to the facility by pretending to be patients and signed attestations claiming to be patients who suffered from a debilitating illness. Our clients tried to help these people just as they tried to help and assist thousands of others. As it turns out, the only time our clients provided marijuana to people who were not patients was when they provided it to undercover officers pretending to be patients. The irony is still not lost on me.

The Clinical Relief employees should never have been charged. Period. There are no ifs, ands or buts about it and while they are free today, it took nearly 2 years of litigation to do it. Unfortunately, the fight for justice was not without casualties.

I never had the pleasure of meeting Sal Agro. Sal Agro was Nick Agro and Anthony Agro’s father. He was Barb Agro’s husband of many years. By all accounts, the Agro family was a strong, traditional story. Sal worked for a local school. Barb Agro worked for a local police department. Shortly after the raids, arrests and detentions of his family, Sal Agro was hospitalized. He died a few days later …. his final days no doubt spent worrying about his family.

There were other casualties and other painful moments. One I’ll never forget…the face of a scared wife. Anthony Agro, another defendant in the case, is married to a beautiful woman. In better times, I imagine them out with friends on a Saturday night…an attractive couple with few worries. I didn’t meet them in that environment. My first contact with Agro’s wife was in a courtroom — her husband facing prison. The look on her face said it all: stress, fear and worry. I imagine it is the look of someone waiting in a waiting room as a loved one is in a risky surgery.

I learned a great deal about myself during this case. But I learned a lot about others too.
I discovered that my fellow lawyers, eg, Jerry Sabbota, Steve Fishman, Cheryl Carpenter, Tom Loeb and others, are powerful and committed advocates. Being a part of this team was an incredible experience. Scary is the fact that it took all of us, and our appellate expert, Stuart Friedman, to prevail. It should not take so much firepower to overcome the government but it does. Our fight in which we have maintained the same mantra — our clients relied on the statute — only to he heard 2 years later is a testament to how the government will not listen to reason.
In the end, as is the case so often in life, it came down to our audience. The Hon Daniel Obrien revealed his courage. He patiently listened to us. He patiently listened to the prosecutors. He gave them every opportunity to make their case. In the end, they could not and when there was nothing else to say, he said it all: “case dismissed”.

Way to go guys.

Neil is passionate about this subject and a master of his craft. An effective advocate and criminal defense lawyer, Neil does not care about the issue that this blog has seized upon in our critique of the MMMA: that many card holders -patients- are inflating their condition and simply using marijuana for recreational purposes.

Neil's take is that when people comply with the law, and receive a legitimate certification from the state, they should not be prosecuted based on the political views of the local prosecutor. He makes a very good point folks.

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Burney's Illustrated Guide to Criminal Intent

2012-01-02T08:48:00.000-05:00

This post is a reprint from the excellent criminal law blog of New York City criminal defense attorney Nathan Burney. This post has picked up a lot of attention, perhaps due to the artwork that accompanies the written text. The post is from Burney's "Illustrated Guide to Criminal Law."

Rather than just linking to the post, we took the pains to reproduce it here. Warning, the post and the art are somewhat dark, but then so is the criminal law.

Well, there you have it; a lesson in criminal law, intent and mens rea on the order of what a law student would attempt to glean from a criminal law course in her first or second year of law school.

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SCOTUS to Hear Cheney Secret Service Agents' Appeal in First Amendment Lawsuit

2012-01-01T16:14:00.000-05:00

Does a brief political "exchange" between a citizen and a sitting member of the executive branch of government constitute protected speech under the First Amendment? Is the calculus changed when the citizen, in urging his words upon the public official, actually reaches out and touches the official?

SCOTUS has granted certiorari to consider such questions and to determine whether an arrest is invalidated when made in retaliation for the exercise of free speech. The case is Reichle and Doyle vs Howards.

Back in 2006, a Colorado man took his son to a piano recital in the Beaver Creek resort area when he saw the former Vice President, Dick Cheney, emerge from a shopping center and begin speaking to bystanders. This man, Steven Howards, drew the attention of Cheney's nearby secret service detail when he said into his cell phone he was going to ask Cheney how many kids he killed today.

When it was his turn to greet the VP, Howards told Cheney that his Iraq policy was "disgusting". As Cheney was turning away from the man, Howards allegedly reached out and touched Cheney on the shoulder, thereby engaging the secret service detail, who detained him for questioning and eventually arrested him for assault.

In a civil rights lawsuit subsequently filed in federal court, Howards claimed that his arrest violated his right to free speech under the First Amendment to the U.S. Constitution. The secret service agents asserted governmental immunity but the Denver-based Tenth Circuit Court of Appeals disagreed, holding that Howards' case should proceed on the basis that law enforcement officers cannot make an arrest based on the exercise of an individual's right to free speech.

For their part, the government asserted that the simple assault on Cheney was sufficient to make the arrest. Also, the government asserts a public policy interest in supporting secret service officers' need to make split-second decisions without having to second guess the liability implications of their actions.

The case will be scheduled for oral argument sometime in March or April 2012. Justice Kagan will not take part, presumably due to her involvement in the case when she served as the U.S. Solicitor General.

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Disparate Sentences for Local NBA Stars

2011-12-24T10:47:00.002-05:00

A well-respected blog on sentencing picked-up on the infamous NBA drunk driving cases coming out of the 48th District Court in Bloomfield Hills, MI. The blog noted the difference between Jalen Rose's straight-forward OWI conviction [he did 14-days in the OCJ]; and the weapons charge component to Big Ben Wallace's OWI charge, recently resolved in the Oakland County Circuit Court before Judge Shalina Kumar.

Here is what the blog had to say about the two cases:

On the surface, it would appear that Wallace committed a (much?) worse offense but ultimately got a (much?) lighter sentence than Rose. Of course, maybe there are some specific differences in the cases not obvious on the surface that justify this seeming disparity. And, perhaps more importantly, the mere fact that can be (and often is) a lot of "low-level" sentencing disparity in this arena does not, in an of itself, necessarily establish that the applicable sentencing law is either unjust or ineffective.

Reading this blog post and being a local criminal defense attorney, I could not resist posting the following comment:

Great blog, DAB. This comment is from a criminal defense attorney in Oakland County, MI, where this Ben Wallace and Jalen Rose stuff went down. First, it is a suburb of Detroit; not in the "D", as we say. Also, Bloomfield Hills, where the district court is seated for that area, is a posh tony burb. (i.e. there are NBA stars driving around partying).

This comment seeks to shed some light on the "disparity" in the sentencing for the two NBA stars. Rose had the misfortune of driving drunk within the jurisdiction of the 48th District Court and to have his case randomly assigned to Judge Kim Small. Judge Small has made national headlines over the years for her drunk driving sentences; they often involve some jail time, even for first offenders with no criminal history. Currently, a group of high-end defense lawyers have challenged Judge Small, seeking to have her disqualified from all drunk driving cases on the basis that she is not fair or impartial, and that her "one-size-fits-all" sentencing policy (i.e. jail for all offenders), violates the "individualized sentencing" mandated by Michigan statute.
This is why Jalen Rose went to jail last summer.

In the case of Ben Wallace, the big fella was OWI while packing some loaded cold steel in his Cadillac, upping his game to the felony level, and thereby "just passing through" the 48th District Court. Fortunately for him, although he too was randomly assigned to Judge Small, his attorneys executed a "fast break", waiving the preliminary exam, and binding Wallace over to the trial court. Once there, probation was available all day long. Good bye Judge Small; hello Judge Shalina Kumar.

Unlike Rose, however, Wallace will have a felony weapons conviction on his record. Last year, Wallace spoke of going to law school. This probably puts the kabosh on that notion.
Here is a link to our local blawg coverage of Big Ben.

Sometimes an accused's notoriety helps his cause; sometimes it hurts the case.

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Michigan's Parole Process Explained

2011-12-17T10:02:00.000-05:00

From time to time, my appellate clients write to me asking questions about the parole process. Incarceration and parole affects all of us to the extent that it dampens our societal freedoms and add costs to those freedoms.

The purpose of this post is to explain Michigan's parole process to our readers. While we recognize that most readers of this blog do not have friends or family behind bars, the process is nevertheless significant to all Michigan taxpayers.

The Parole Board.
The Parole Board in Michigan was recently reduced in 2011 from 15 members to the current 10 members. The parole board members are appointed by the Director of the Michigan Department of Corrections (MDOC). The Board is the sole paroling authority for felony offenders committed to the MDOC. Members serve 4, 3, and two year terms. Regular meetings are convened by the board to assess and decide parole applications.

The Parole Eligibility Report.
A felony offender must serve the minimum sentence with the MDOC prior to becoming eligible for parole. A Parole Eligibility Report (PER) is prepared on behalf of the applicant by a staff member of the MDOC. This report informs the parole board of the background of an inmate-applicant, and makes sure the applicant's parole file is complete.

The PER also makes recommendations to the parole board for each applicant, taking "misconduct" tickets and the prior criminal record into account. The generation of this report is a critical step in the parole process.

If an applicant has not completed all of the requirements set forth in the judgment of sentence, or if his file is otherwise incomplete, this is noted in the report and parole will be denied.

The Parole Board's staffers use the PER to score a prisoner's parole guidelines. These statutorily-mandated parole guidelines form the backbone of the parole process.

The Parole Interview.
Upon submissions of a prisoner's PER, the prisoner is eligible to participate in an informal and non-adversarial interview with one or more Parole Board members assigned to the prisoner's parole panel. After this interview, a Case Summary Report is generated for the Parole Board's review.
This interview is an excellent opportunity for the prisoner to address members of the board, face-to-face, in order to make a positive impression on his candidacy for parole. The prisoner can address major misconduct tickets, and explain how and when he plans to complete any missing training requirements in order to enhance his eligibility for parole.

Of course, in a perfect world, the prisoner will have completed all required components set forth in his judgment of sentence. This is why good lawyering is so important at the trial phase of the accused's case. Corrections to the presentence investigation report must be made in the lower court as this is the “bible” relative to the prisoner as far as the MDOC is concerned. An inmate will be forced to live within the confines of any errors unless they are corrected on appeal within the timelines set out in the Michigan Court Rules.

Transition Accountability Plan.
Under the Michigan Prisoner Reentry Initiative, the Parole Board and the MDOC are required to formulate a Transition Accountability Plan (TAP) for each prisoner facing parole eligibility.
The TAP serves the dual goals of assisting the prisoner with re-entry into our society, as well as assisting the Board with its parole decision. The TAP identifies specific risk factors for a particular inmate, sets goals relative to minimizing the identified risks, and sets forth a specific plan to help the inmate meet the established goals.

The Parole Board’s Broad Discretion.
In making decisions on parole, the Parole Board has very broad authority to decide the inmate's fate. Nevertheless, the legislature has imposed some restriction on the Board's parole decisions.
For example, the Board must follow the regulatory framework summarized in this post. Also, in no case will a prisoner be granted parole unless and until the Board is satisfied the prisoner will not become, "a menace to society or to the public safety."

In exercising its discretion, the Board takes into account a prisoner's remorse for having committed the offense for which he is incarcerated, his overall mental health, and his "social attitude". A healthy positive attitude is what it takes to achieve parole status; but that is a difficult attitude to acquire and portray from within the grim walls of a prison. The inmate seeking parole must toughen his resolve to acquire and maintain the proper attitude, shutting out all competing negative factors.

Returning to Society.
A prisoner's fate lies squarely within the hands of the Parole Board. At a minimum, the process described above must be followed to the "T". The most important factor beyond having all of one's required sentence components completed, including the payment of restitution, is the adoption and maintenance of a strong positive attitude.

Recidivism is a plague to our society and costs all of us dearly. The Parole Board's job is to identify likely re-offenders and keep them locked-up for the duration of their sentence. This is the cost to society for safety and the enjoyment of our freedom. If the parole process works, prisoners can attain parole, complete parole, and re-join the ranks of law abiding citizens.

Resources.
The Michigan Court of Appeals published an opinion last month, People vs Haegler, explaining the nuts and bolts of the parole board in the context of the appellant-prisoner's CSC conviction and failed attempts at parole.

Some attorneys specialize in parole and probation consultations, assisting clients with the preparation and correction of their initial presentence reports, as well as with the parloe process. Professional Parole Consulting is such an outfit located in Detroit, MI.

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Guilty Plea Appeals: The Prison Tour

2011-11-27T08:40:00.000-05:00

The "Wall" at the Michigan Reformatory

Perhaps because my first job out of law school was with the Michigan Court of Appeals, I have always maintained a robust appellate docket to my law practice. For the past several years, for example, I have served as a level two roster attorney for the Michigan Assigned Appellate Counsel System.

Excited to get approval from MAACS at the intermediate level, I pictured myself working on cutting edge legal issues in capital cases; reviewing the trial work of some of my seasoned criminal defense colleagues; and drafting meaningful appellate briefs in cases of great import. Unfortunately, my stint with MAACS had little to do with all that, and instead involved a steady diet of guilty plea appeals.

Under chapters 6 and 7 of the Michigan Court Rules, when a defendant pleads guilty, that defendant no longer has an appeal of right from his judgement of sentence. Such a guilty plea conviction is appealed via an "application for leave to appeal". In other words, the appeal is discretionary by our intermediate appellate court; they can [and do] reject most of these appeals, not being convinced that the application poses a legal issue worthy of a merit-based review.

Ionia, MI has several MDOC assets

When a defendant pleads guilty and the sentence calls for prison, he is shipped first to the Egler Reception Center in Jackson, MI. After a period of quarantine, the prisoner is then assigned to one of the MDOC assets placed throughout Michigan. As a MAACS roster attorney, you must schedule a trip to that facility to meet with your new client.

Human nature being what it is, many of the defendants that plead guilty are subsequently overtaken by a serious bout of 'buyer's remorse' once they have had sufficient time to reflect upon their momentous procedural decision. Or when they emerge from their inevitable appointment with a prison "writ writer"; so-named for their involvement with the Habeas petitions of their fellow prisoners.

The problem with guilty plea appeals is there are often very few viable issues on appeal once your client subjects himself to a properly conducted plea hearing. My experience has been that most of these convicted felons can no longer stand the site or the thought of their trial lawyer; in fact, it is that trial lawyer's fault that the defendant is now incarcerated. Usually, their complaint on appeal is that they were talked into taking the plea; or pressured by their attorney.

Michigan's oldest prison

Another common complaint from my inmate clients is that they were promised, both by their trial attorney and the prosecutor, a much more lenient sentence than the one they actually received at their sentencing hearing.

Last week, I went on a tour of Michigan to meet with five of my MAACS clients in four separate MDOC facilities. I started out at the oldest prison in our state: the Michigan Reformatory in Ionia. This facility is very old school; from the "Wall" that blocks the facility off along the eastern boarder of the property, to the Eisenhower-Era administration cube at the public entrance to the facility.

I had to meet with a young inmate from Pontiac that signed an affidavit in support of my motion to vacate the appointment of appellate counsel as this youngster had no viable issues on his manslaughter conviction; he's doing a dime.

From there, it was across the street to the supermax facility to interview an armed serial home invader with convictions from two county circuit courts; he didn't like either of his two court-appointed trial lawyers. Not so sure he like what I had to say either.

From Ionia, it was northwest to Muskegon, then further north to Manistee; knocking out visits at each of the several facilities along the way. I finished-up my visits around 6:30 pm with a gentleman from Detroit that shot his wife in the face [she lived; it was an accident, he now claims].

Crawling across the state along M-10, I had plenty of time to reflect on my appellate practice and the various jams folks get themselves into. I was sure glad, ripping by Midland around 9:00 pm, to see the signs for trusty ole I-75 South.

At least it was a pleasant fall day; I rented a car to avoid putting all those [unreimbursed] miles on my vehicle. In all, I had earned about $425 for the all-day trip and felt like I accomplished very very little by way of legal substance.

But that's the nature of a guilty plea appeal prison tour. I think it's time to change my diet.

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Michigan Court of Appeals Rules State Clerk Must Testify in DWLS Cases

2011-11-06T08:16:00.001-05:00

In a 2-1 decision, the Michigan Court of Appeals recently ruled that a certificate mailed to a state driver, notifying him of his suspended license, is "testimonial" as that term is used in the constitution thus, the Secretary of State must produce it's clerk at a trial for driving on a suspended license.

The case, People v Nunley, arose in a district court in Washtenaw County. The prosecutor attempted to introduce notice of the defendant's suspension, without calling a clerk from the Secretary of State's office to lay the proper foundation for the entry of that key document.

Both the district court and the circuit court denied the prosecutor's request to admit the document of suspension; a key element in any DWLS case.

The Court of Appeals panel reasoned that because the prosecutor must establish that the motorist received notice as an element of the crime, it held that introduction of the actual notice document, without producing the necessary foundational witness, violated the accused's right under the Sixth Amendment to the U.S. Constitution to confront and cross examine all witnesses.

In a well-reasoned 7-page dissent, Presiding Judge Henry Saad concluded that the notice was not "testimonial" under the analysis of seminal U.S. Supreme Court caselaw. Judge Saad characterized the notice as merely "administrative" and emphasized that, when the notice was sent to Mr. Nunley, no crime had yet been committed [i.e. Nunley had yet to drive on his newly suspended license]. As such, the notice could not be testimonial in nature.

The result of this decision is that the prosecutor must now secure the appearance of the state clerk from Lansing in order to obtain a DWLS conviction. Should the administrative costs of securing a conviction alter the analysis of the accused's constitutional right to confrontation of witnesses? We think not.

The Washtenaw County Prosecutor has promised further appeal to the Michigan Supreme Court.

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Panel Appointed to Examine Indigent Criminal Defense

2011-11-01T06:59:00.000-04:00

This past week, Governor Rick Snyder issued an executive order appointing 10 people to serve on an "advisory commission". Their mission: to quickly assess and make recommendations to the executive and legislature about the delivery of effective legal representation to the indigent accused.

Along with the 10 gubernatorial appointees, the commission also includes state legislative leaders from each political party; two from the state house and two from the state senate.

In reviewing the Governor's appointments, it was good to see Oakland County well represented. Oakland County Circuit Judge Colleen O'Brien is on the commission along with former Oakland County Bar Association President Judith Gracey.

The problem presented to the Commission is how to provide effective assistance of counsel, as guaranteed under the United States and the Michigan Constitutions, for accused individuals that cannot afford to hire a lawyer. Michigan is considered to be among the worst states in the Union in providing legal services for indigents.

This blog covered the problem last October when the Michigan Supreme Court reversed course in the Duncan v State of Michigan case, granting summary disposition to a constitutional challenge to our system of court appointed legal counsel. So now the executive branch will make an attempt to fix what most everyone agrees is a broken system.

Here in Oakland County, this blogger has observed many a colleague providing quality legal service on a court-appointed [thus, low paying] basis. A court-appointed lawyer may go through 50 pleas before taking a case to trial.

Similarly, at the appellate level, roster attorneys for the Michigan Appellate Assigned Counsel System subsist on a steady diet of guilty plea appeals which are essentially thankless fools' errands; done dirt cheap. These MAACS attorneys, however, wait for a legitimate appellate assignment to come along, providing the opportunity to file a merits brief seeking to correct a constitutional wrong.

While professionally gratifying, the trial and/or appellate attorney can expect to be compensated at the rate of about $20 - $25 per hour.

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SCOTUS to Hear Michigan Case on Plea Bargain Process

2011-10-30T15:59:00.000-04:00

This week I had a 3-day jury trial. When it was completed, I walked out of the courthouse but my client did not.

In such criminal cases, at the brink of trial, it is common that the plea discussions give an accused serious pause. Rejection of a reasonable plea offer can result in significantly more time in prison thus, the stakes are high.

The counsel-driven plea process is at the heart of a Michigan case up for oral argument this week at SCOTUS: Lafler v Cooper. The case comes from the Wayne County Circuit Court; straight out of the Frank Murphy Hall of Justice.

The female victim in the case was shot 4-times by Anthony Cooper: twice in the buttocks, once in the abdomen, and once in the hip. She survived these gunshot wounds.

Cooper's lawyer rejected a plea offer that would have capped his prison term to the lower end of his sentencing guidelines on an attempted murder charge. The offer was rejected on grounds that the medical evidence in the case would demonstrate that Cooper was only trying to maim his victim; not kill her. Counsel pushed for a reduction of the charges to assault with intent to do great bodily harm.

Well, as I've learned over the past two decades: "good luck with that..."

After his jury trial conviction, Mr. Cooper was sentenced to 135-360 months in prison. On appeal, he raised a claim that he received ineffective assistance of counsel during the plea bargain phase of his case in contravention of his rights under the Sixth Amendment to the U.S. Constitution.

With his appeals exhausted in the state courts, Cooper filed a petition for Habeas Corpus in federal court. The federal court ruled that the state appellate court erred by not accounting for the "affirmatively deficient advice" of Cooper's trial counsel in rejecting the prosecutor's initial plea offer.

The remedy: the federal court ordered specific performance of the initial plea offer: i.e. a 50-month prison term. Understandably, the prosecutor appealed hence, the case now resides on the SCOTUS docket.

We will keep an eye on this one for you as it implicates how defense counsel handles the all-important plea bargain process. So stay tuned...

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Medical Marijuana Legislative Update

2011-09-22T06:44:00.000-04:00

Three years after the passage of the medical marijuana referendum and its attendant Medical Marijuana Act, there have been many developments in Michigan's municipalities, within our legislature, and from the appellate courts. This blog post is a snapshot of what is currently pending at the Michigan House and Senate.

HB 4661 Prohibits the operation of marijuana dispensaries near churches, schools, and day care centers;

HB 4834 Requires photograph on a medical marijuana card;

HB 4850 Limits transfers of medical marijuana;

SB 416 Clarifies permissible causes of action under the Medical Marijuana Act;

SB 504 Prohibits dispensing medical marijuana within 1000 feet of a church or school;

SB 506 Clarifies a "bona fide physician patient relationship" relative to the Medical Marijuana Act.

In addition to these bills, there is a growing patchwork of local ordinances further regulating permissible uses of medical marijuana; particularly grow operations and distribution networks.

Stay tuned for the latest on these legislative developments in this and other areas of our constantly evolving criminal law jurisprudence.

CSI Oakland County

2011-09-21T17:42:00.002-04:00

Hard to believe that right here in Oakland County, Michigan, there is sufficient crime to sustain a nearly $2 million dollar a year crime lab. Yet that is what Oakland County Sheriff Mike Bouchard announced last month in conjunction with his department's request for an expanded crime lab.

Sheriff Bouchard is expected to continue touting the Oakland County crime lab's accreditation by the American Society of Crime Lab Directors; the first lab in Michigan to achieve such status. Allocation of the resources for the proposed expansion (up to 3 additional employees and the constantly advancing hi-tech equipment with which they will work) seems like politically rough terrain in these times.

Apparently, the expansion will allow Oakland County to by-pass the lab operated by the Michigan State Police, thereby significantly reducing delays. The MSP crime lab has been flooded with additional work since the City of Detroit shuttered its crime lab amid claims of mismanagement and abuse; claims that are being investigated by the MSP.

This blogger recently experienced the effects of the MSP lab's processing delays in a felony case in Oakland County. It took the Oakland County Prosecutor nearly 8-months to confirm blood reports tying my client to a crime scene.

The prosecutor ended up sending the blood-work to a private lab in Virginia. During the months it took to process the evidence, my client was sent to prison on another unrelated matter from Detroit.

Although the delay was not the accused's fault, he sat in prison on dead time in my case, willing to plead guilty and get his Oakland County case over with. This was not possible due to the evidentiary delays. Not that I am asking you to shed any tears for this hardened skell; but we pay for such delays one way or another.

If an expanded lab lessens delays, expedites justice, and eases the burden on the state lab, that's all good. It's just a shame that our community sports enough crime to make such an arena possible.

http://www.clarkstonlegal.com/

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What To Do If You Are Accused of a Crime

2011-09-03T09:13:00.000-04:00

If accused of a crime, either a misdemeanor or felony, you must consult with an attorney as soon thereafter as possible. If you have access to a cell phone or the Internet, you will not be far from a lawyer.

Get an Attorney. This is the first step to protecting your rights. You are guaranteed a lawyer by our federal and state constitutions; the question is, who will represent you?

If you elect to go with a court-appointed attorney, you just will not know about the quality of that attorney until it is too late. Some, not all, court appointed attorneys are overworked, inexperienced or both; they are gaining their experience on your watch. This could be a good thing. Others are apathetic; these are the worst kind of publicly appointed lawyers because they will not fight for your rights or file the proper motions (i.e. motion to supress evidence, motion to quash the information and dismiss the case, motion to reduce bond, etc...) It is a well known fact that Michigan is among the worst states in compensation for court-appointed attorneys. Attorney adage: if you are any good, don't waste time taking low-paying public defender appointments.

Retained counsel is often a better way to go. But whom do you hire among the maize of attorneys out there? Do some research on the Internet. A good web site for this is Avvo.com; this site profiles lawyers and doctors. Lawyers showcase their accomplishments in a format that is easy to search and access. Also, the lawyers are rated by Avvo so you can see who has sufficient experience in your area.

Your Preliminary Examination. Once you are arraigned on a felony in the district (or local municipal) court, this is the first step in the criminal process where you make a strategic decision. If I have a client who thinks we will take his defense to a jury trial, I always hold the preliminary exam.

A preliminary examination is a right defendants have created by a Michigan statute. The district court must listen to evidence presented by the prosecutor to determine whether there is probable cause that the accused has committed a felony. If so, the case is "bound over" to the trial court. If not, the case is dismissed.

Apathetic jaded attorneys see so many of their clients get bound over to the trial court, they begin to lose focus on the reasons for holding an exam. These reasons include: 1) forcing the government to establish probable cause; 2) you will learn something about the prosecutor's case against you; 3) you will have the opportunity to see some (not all) of the witnesses the government has arrayed against you; 4) you have the constitutional right to confront these witnesses through your attorney's cross-examination; and 5) all testimony taken at your exam will be available in a transcript from which you can further prepare your defense.

Adjusting Bond. If you are bound over by the district judge, and you are incarcerated, you will want to adjust your bond so you can get out of jail in order to better prepare your defense. Bond is designed to ensure the accused's appearance at all future court dates as well as to protect the public. A judge will consider several factors when deciding on your bond, such as: a) the seriousness of the offense charged; b) your prior record; c) your track record of showing up on the case; d) substance abuse issues.

A court has the option of setting a personal recognizance bond, (meaning that you don't have to post any money), a cash bond requiring that you post the amount of the bond to get out of jail; a surety bond (you must secure the bond through a licensed bondsman who pledges the bond in exchange for some collateral that you or a friend or family member pledges as security); a 10% bond (meaning you only need to post 10 percent of the bond amount, but the court collects this sum at the end of your case; you do not get it back).

In addition to the amount and type of bond, a court can set myriad conditions on the bond such as no alcohol or illegal drugs, home confinement, no contact with the alleged victims.

These are just some of the preliminary matters that come up in every criminal case. Stay tuned for more detailed guides dealing the the nuts and bolts of a criminal jury trial.

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When Children Live with a Child Murderer Endorsed by the Family Court

2011-08-25T11:06:00.000-04:00

A very worried Trisha Conlon

This bizarre family law custody case is playing out in Seattle, WA. The unusual facts of the case bring into sharp focus the challenge of putting parents' often-questionable decisions through review by a family court judge.

In 1995 Trisha Conlon married Marine fighter pilot John Cushing, Jr.; a man with a tragic past. His ex-wife, Kristine Cushing, shot to death their two young daughters, 4 and 8, while they slept in their Southern California home. This was in 1991, when Mr. Cushing was on active duty in the Marine Corps and Mrs. Cushing, by all accounts, was an ideal soccer Mom.

Kristine Cushing's murder trial featured the now infamous "Prozac Defense"; she was found guilty by reason of insanity and sentenced to a mental institution where she did a nickle, followed by a decade of intensive in-patient style psychiatric treatment. She was discharged without restriction in 2005.

Meanwhile, John Cushing tried to put the pieces of his life back together. He married Trisha Conlon, with whom he had two sons. Sadly yet predictably, the couple divorced in 2004. Mr. Cushing's next "life-choice" was to re-marry his first wife, Kristine Cushing, the now-excused infanticidal murderess.

Today, Lt. Col. Cushing (retired) lives on Vashon Island, WA with a split-custody arrangement whereby one of his sons lives with him; the other lives with Ms. Conlon. The brothers reunite during holidays and vacations. Under this custody arrangement, Conlon eventually became aware that her ex-spouse not only re-married his first wife, but also shared a marital home with her and Conlon's son.

This information was difficult to come by as Mr. Cushing attempted to conceal his family arrangements. The distance between the two parents provided the necessary cover. Ms. Conlon, now living in Oregon, resorted to her family law attorney and his private investigator.

Seeking a change in custody to place her son into her home, Conlon brought proof of the Cushing reunification to the attention of the family court in King County, Washington (Seattle), arguing the arrangement was a "change in circumstance" detrimental to her son's best interests. She lost her case last month; a hearing on appeal is set for next week.

This case is a testament to the lengths people will go in the name of love, marriage, and progenitorship. Many, perhaps most of us, would not make the same decision as the Lt. Col. in this case; infanticide is just a flat-out "deal-breaker". On the other hand, imagine the love and forgiveness Cushing must have for his first wife to be able to take such a risk.

To the extent that his decision has placed his son in harm's path, it will be up to a family court judge of the King County Superior Court in Seattle to determine what is best for the boy under its jurisdiction.

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New Court Rules Expand Jury's Role in Michigan Trials

2011-07-02T11:34:00.006-04:00

This week, the Michigan Supreme Court integrated one of its pilot projects, involving the specific tasks of trial jurors, into the Michigan Rules of Court. The significant changes take effect September 1st.

The MSC order, with only Justice Diane Hathaway dissenting, essentially revolutionizes the role of the jury. Trial lawyers will note the sea change authorized by the new rules.

Some of us have already utilized these rules by conducting trials in Oakland Circuit Judge Potts' courtroom.

The new rules are significant in that, for the first time, standard jury instructions will be supplemented with legal theories of the issues, drafted by the opposing counsel. A trial judge, however, retains all "editorial" powers relative to the theories and issues submitted by the lawyers. Under the old rules, in addition to a reading of a series of standard instructions, the parties requested various "special instructions" applicable to their specific case.

Here are the other significant changes:

In addition to the standard opening statement, parties may now request making an "interim commentary" as the evidence is going in. This creates the possibility of editorializing the content of the evidence as it is entered into the record; the old rules limited all pre-evidence commentary to the opening statement.

Also, a distinct possibility of in-trial interactive dialogue with a jury is possible given the new provisions allowing jurors to submit their own questions to witnesses.

Where appropriate, litigants will submit trial notebooks to jurors containing witness lists and relevant documents.

In civil cases, where depositions will be read into the record at trial, the parties must submit joint deposition summaries to the jury.

In cases utilizing expert testimony, one party's expert will be allowed to hear the testimony of the other party's expert, rather than sitting in the hallway of the courtroom under the usual sequestration order.

Perhaps most significant, jurors will be permitted to discuss the case amongst themselves during regularly scheduled breaks in the trial rather than waiting until formal deliberation when the proofs are completed.

In her dissent, Justice Hathaway commented that the rules allowing for interim jury questions, interim deliberations, and the submission of deposition summaries, will poison the trial process with unnecessary complications.

We here at the Law Blogger must admit that, with lawyers being, er, lawyers, the new rules have fantastic potential to complicate the trial process. On the other hand, the Wall Street Journal's Law Blog applauds these developments to the extent that they treat jurors as thinking adults; not a bunch of kindergartners.

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Senate Proposes Statewide Registry for Medical Marijuana Patients & Caregivers

2011-06-26T08:34:00.001-04:00

Earlier this week, a bill was submitted to the plenary Michigan Senate by the Judiciary Committee that would require a state-wide registry for medical marijuana patients and care providers. Senator Rick Jones, a sponsor of the proposed legislation and chairman of the judiciary committee said the registry would be a "critical tool" for law enforcement.

The mechanics of the proposed law would require the DCH to submit a registrant's name and address to the state police within 48-hours of issuing the marijuana registration card. The police would then be able to call-up the data, for example, during routine traffic stops.

Of course, the compassion care industry is up in arms, viewing the bill as a significant affront to a registrant's privacy. An earlier version of the bill called for the submission of a wider scope of personal information about a registrant.

Oddly, the ACLU has come around on this bill, opposing the earlier version as overly intrusive, but conceding that a state-wide registry could prevent potentially dangerous raids where lots of feathers get ruffled. Still, the ACLU's official position is that the bill, even as amended, needs a separate "probable cause" requirement prior accessing the database. Unworkable, in our humble opinion.

Senator Jones' committee was busy this week, also introducing another medical marijuana related bill; this one to stop those pesky lawsuits filed by high profile lawyers against municipalities over their pot ordinances.

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Michigan's Super Drunk Law After Six Months

2011-06-05T11:07:00.000-04:00

It's still too early to tell if Michigan's new "Super Drunk" driving law is having an effect on making our roadways safer. The law took effect last November.

Some following the law have noted that due to plea deals, many convicted of this law are going to rehab rather than jail. One of the provisions of the law was to double the jail term from 90 to 180 days for convicted super drunk drivers.

According to Eaton County district judge Harvey Hoffman, an early proponent of the new law, more folks are jumping into sobriety courts, or extended rehabilitation programs. Judge Hoffman cites chronic jail overcrowding as a chief factor in sentencing super drunks to rehabilitation over a six-month jail bit.

Of course, here in Oakland County, there is no such thing as a plea bargain and the prosecutor no longer participates in district sobriety courts. If you are charged under the Super Drunk law, you will not get an offer to reduce the charge to impaired driving, even if it is your first offense. Your fate will be in the hands of your sentencing judge.

By comparison, the Eaton County prosecutor has a new policy in super drunk cases of approving a plea reduction to impaired in exchange for the accused's assent to enter into a sobriety court program, forcing the offender to come to terms with their drinking problem.

The 0.17 blood alcohol level which triggers the new law is not an outrageously high BAC. On average, the BAC of an arrested driver is 0.16; very close to the super drunk threshold.

So the best thing to do is simply stay off the roads when you've had too much to drink; that way, we're all safer. If you cannot do that, go on ebay and purchase a "Big Blue Book" as a compulsory 12-step program may be in your future.

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Murder has no Statute of Limitations

2011-05-10T21:10:00.000-04:00

Veteran defense lawyer Michael McCarthy (L)
and veteran prosecutor John Skrzynski

Prosecutors cannot take their time once they make the decision to prosecute a case. Generally, the law does not reward any party that sleeps on their rights and duties.

Normally, the prosecutor has a certain period of time, known as the "statute of limitations", within which to charge a crime. An exception to this rule is murder; there is no statute of limitations on a murder charge.

The Oakland County Prosecutor recently brought two cases that alleged murders that took place in 1978 and 1968, respectively. The 1968 case charged Nolan Ray George, a suspected serial killer, with the first degree murder of Gwendolyn Perry. Likewise, the 1978 case charged Wilburn Cooper with first degree murder.

Cooper's jury convicted him in two hours flat. As for Mr. George, his defense lawyer, veteran attorney Michael McCarthy attempted to keep out evidence of so-called "prior bad acts"; two prior murders. Oakland Circuit Judge Michael Warren ruled the other murders admissible; George also was jury convicted in short order.

Forty years, thirty years, or ten; if the prosecutor can marshal evidence to prove the elements of an open murder charge beyond a reasonable doubt, murderers should pay the price for their heinous crimes. The competing interest, of course, is that any evidentiary trail grows ice cold over the decades; a defense is very difficult to mount with the passage of an ocean of time.

Mr. McCarthy was probably asked why on earth he would represent a serial killer a dozen times if he was asked once.

The criminal justice system requires seasoned defense lawyers to force the government to prove its case; each and every time. Only in this fashion do we maintain our individual liberties and avoid becoming a police state.

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Michigan Attorney General Files Amicus Briefs in Medical Marijuana Cases

2011-04-06T09:14:00.003-04:00

Michigan Attorney General Bill Schuette has filed amicus briefs in two medical marijuana cases pending in Michigan appellate courts; one case is from Oakland County, the other from Isabella County.

The Oakland County case, the well-known People v Redden debacle, involved whether an unregistered marijuana user could nevertheless assert the defenses set forth in the Medical Marijuana Act. That case is pending before the Michigan Supreme Court.

In the AG's Redden brief, the assertion is that only qualified patients may avail themselves of the statutory defenses set forth in the MMA. The Court of Appeals held otherwise.

The case from Isabella County tests whether anyone can earn a profit from their pot-growing efforts.

We will monitor each of these cases and report back to our readers.

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SCOTUS Erodes Witness Confrontation Requirement

2011-03-12T10:18:00.000-05:00

This case was straight out of Detroit. Anthony Covington was lying next to his car at a gas station, shot in the stomach, bleeding out, but still alive and speaking with the Detroit Police.

Just before he died, he identified Rick Bryant as his shooter. Bryant's subsequent conviction, based largely on the dying man's identification, went all the way to the SCOTUS and was decided last month.

Conviction affirmed; and in the process, one of the many exceptions to the hearsay rule is broadly expanded at the expense of accused persons everywhere.

The 6-2 decision in Michigan v Bryant erodes the confrontation clause of the Sixth Amendment requiring that all witnesses against an accused be brought to court. Surprisingly, Justice Sotomayor wrote for the majority; Justice Giinsburg recused herself; and just as surprisingly, Justice Scalia wrote in dissent.

This case is significant to the extent that it allows police officers to testify at a trial about what an out-of-court (i.e. hearsay) witness said when that witness is no longer available for purposes of cross-examination and in-court confrontation. Whether a dying man's declaration comes into evidence at a criminal trial depends on the "testimonial" nature of his utterance.

Prior SCOTUS decisions have addressed this problem. Until now, two domestic violence cases established each end of the continuum.

In the well-known case of Davis v Washington, the declarant's statment -made during a 911 call- was admitted because the emergency was ongoing when the statement was made. The presence of the emergency made the statement non-testimonial and thus, admissible in court even though the declarant was not present at the trial.

On the other hand, when a statement is made after the emergency is extinguished, as in Hammond v Indiana, then such a statement is clearly testimonial; that witness must be brought into court, or the statement is excluded from trial. The witness in Hammond made her statement from the safety of her home during a subsequent police visit.

The Bryant Court constructs a complicated two-perspective test to determine the "testimonial" nature of a dying man's declaration. A reviewing court must now consider both the declarant's primary purpose in uttering the statement, along with the recipient's purpose in receiving the statement. Say what??

Writing for the dissent, Justice Scalia, not usually a champion for the defense but an ardent supporter of the confrontation clause, thinks the question "is an absurdly easy one". The murder victim from Detroit, in his last breath, was telling the Detroit Police who shot him so they could apprehend the shooter; not to stop any "emergency". Therefore, the statement was testimonial in nature and should not be admissible in court according to Scalia's analysis.

Seems like each year SCOTUS issues at least one decision from Detroit and the surrounding area that has a local murder at issue. Last year it was Warden Berguhis v Thompkins; this year it's Rick Bryant's case.

Kinda sad that we're known for the laws that get spawned from these murders.

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Are Digital Inspections Constitutional?

2011-03-02T04:40:00.001-05:00

Whether a search of your computer is legal depends, in large part, on where the search takes place. If you are singled-out at an international boarder, for example, you are going to be searched regardless of the presence of a "reasonable suspicion".

If you are in a place where you have a reasonable expectation of privacy, on the other hand, the Fourth Amendment to the U.S. Constitution requires probable cause prior to a justified police search of your digital data.

This issue is coming-up with increasing frequency as people travel with their digital lives at their side; and thanks to the increasing sophistication of law enforcement search methods.

Courts have determined that international borders are areas where government interests trump any reasonable expectation of privacy, if one even exists at all. Customs agents at these boarders are trained to look for smugglers, terrrorists, and child pornographers.

The heightened search and seizure powers of Customs agents were tested in a recent case involving a local contract employee with the Walled Lake Consolidated Schools. Two years ago, Craig Aleo was intercepted at the US-Canadian border in Buffalo, NY. Customs agents conducted a digital inspection of his laptop and discovered images of child pornography; some of them made and distributed by Aleo.

The former Davisburg resident and Walled Lake schools employee was sentenced last January by federal judge Bernard Friedman to 60-years in federal prison.

While no one wants their digital life disturbed when traveling through borders, particularly lawyers with briefcases of confidential goldmines, neither does anyone feel sorry for child pornographers or terrorists.

In another recent case, this one involving a suspected "terrorist", the former Muslim chaplain at Guantanamo Bay was routinely subjected to digital inspections whenever he re-entered the US. Once, upon being searched and released, the Muslim chaplin discovered that the Customs agent left a forensic scan disc in his computer. Although the chaplain was not a terrorist, he fit the profile, so the digital inspections were conducted.

A thorough digital scan of a lap top computer can take more than 3-hours, and that's without securing a warrant. Forensic hard-drive copies take even longer to produce.

Digitized information does not always carry signs of illegality like child porn images. Evidence of terrorism, for example, is often well-hidden and encrypted in the machine's hard-drive.

The National Association of Criminal Defense Lawyers has taken the position that laptop computer searches conducted at international borders are "non-routine" and thus should require some modicum of articulable suspicion.

Such articulable suspicion is required by highly invasive search modes such as the search of a person's ailmentary canal. A laptop search is probably even more intrusive as it encompasses your entire being, both personal and professional.

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Retired Wayne Circuit Judge Heading to Trial as an Accused Defendant

2011-02-13T10:29:00.005-05:00

It remains one of the biggest cocaine busts in Michigan history. Over 100-pounds were seized by the Inkster Police Department in early-2005. So much cocaine, it literally stunk-up a courtroom in the Frank Murphy Hall of Justice; Judge Mary Waterstone's courtroom.

The case was so huge, Judge Waterstone feared her courtroom, and the cast of characters surrounding it, would be overwhelmed. Her instincts were correct as the case has gone South for everyone.

Fast-forward 6-years. Judge Waterstone, the former Assistant Wayne County Prosecuting Attorney, and the Inkster police detective in charge of the original case are heading to trial next month on perjury-related felony charges of their own before Wayne Circuit Judge Timothy Kenny.

The original cocaine distribution charges alarmed now-retired Judge Waterstone. In the ensuing investigation which engulfed her, Judge Waterstone has gone on record stating the assistant prosecutor was in way over her head, that she didn't trust the drug dealers' high-profile attorney, that the case should have been charged in federal court, she feared for her own safety and for the safety of her staff, and she feared the witness-for-the-prosecution (a paid confidential police informant) would wind-up dead.

Alexander Aceval and Ricardo Pena were jury-tried on possession and distribution charges related to the massive cocaine haul. During trial, Wayne County Assistant Prosecutor Karen Plants sought an ex-parte meeting with Judge Waterstone, advising the judge that her police witnesses were lying to the jury.

The mechanics of the bust involved the informant, while in touch with the Inkster Police, transporting the cocaine from Aceval's "J Dub" bar in Riverview, with Aceval following in his own vehicle. Police took-down both vehicles but did not charge their informant. At Aceval's trial, the police apparently provided false testimony as to whether they knew or had been in contact with their informant. Nor was the jury told that the informant was to receive a 10% commission from the forfeited funds generated in the bust upon Aceval's conviction.

Hearings had been conducted (in camera) at the request of Aceval's attorney seeking the identity of the police informant. Judge Waterstone, confident that an informant did exist, ruled that the identity of the informant was an issue that could not be raised at trial before the jury.

When she learned of the officers' perjured testimony, Waterstone says she faced the dilemma of protecting the informant's life; believing the defendant's attorney, James Feinberg, could not be trusted with such information.

Around the time of Aceval's trial, attorney Feinberg was making headlines elsewhere, representing one of the most notorious drug gangs in Detroit history; the so-called "Black Mafia Family". Once the Aceval trial got underway, Judge Waterstone observed that attorney Feinberg's obvious strategy was to simply ignore her order regarding the confidential informant's identity, and pursue a line of questioning designed to put the police witnesses "on the spot" relative to their informant.

Perplexed by the law enforcement perjury, with death threats lodged in the case from the outset, the prosecutor (with Waterstone informally kept in the loop) consulted with the Wayne County Prosecutor's renowned appellate-chief, Timothy Baughman, who recommended using a separate sealed record of the prosecutor advising the judge on the particulars of the perjured testimony, then continue with the trial.

Both the judge and the prosecutor are now second-guessing that decision as they head into their own trial(s). Ironically, Judge Waterstone subsequently lamented to investigators that rather than follow Baughman's suggestion to continue with the trial, she wished that she had consulted with fellow-judge Tim Kenny, who is now presiding over her trial and could ultimately sit in judgment of his former colleague on the bench.

When Judge Waterstone stepped-off the case, her successor, Judge Vera Massey Jones, un-sealed the in camera hearing transcripts which revealed the prosecutor's decision not to object to known perjured police testimony to avoid "telegraphing" the informant's identity. Judge Waterstone endorsed the decision, stating: "I think the CI (informant) is in grave danger. I'm very concerned about his identity being found-out."

In the meantime, Pena was jury-convicted and Aceval's initial trial resulted in a hung-jury before Waterstone. Aceval's second trial ended when he pled guilty to possession of cocaine with the intent to deliver. He was sentenced by Judge Vera Massey Jones to 10 to 15 years prison.

Aceval appealed his guilty plea conviction which was affirmed by the Michigan Supreme Court just last December. Of note in the Supreme Court's decision, former Justice Maura Corrigan declined to take part in the case, indicating that she may be called as a character witness on Judge Waterstone's behalf.

The case against Waterstone, the prosecutor and the cops is being prosecuted by the Michigan Attorney General due to the obvious connections with the Wayne County Prosecutor's office. Last Friday, more than twenty pre-trial evidentiary motions were argued before Judge Kenny in the lead-up to the trial, scheduled (firmly) for March.

This case impugns the very integrity of our criminal justice system. The final result will not be clear until all the dust from the trial and subsequent appeals finally settles.

For our part, we will convey the significant developments in the case in this blog; stay tuned.

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SCOTUS Expands Accused's Right to Effective Assistance of Counsel

2011-02-05T15:52:00.002-05:00

Since 2009, I have served as a roster attorney for the Michigan Appellate Assigned Counsel System (MAACS). While a MAACS roster attorney hones his knowledge of the many facets of criminal law in the appeal context, most assignments involve assessment of yet another guilty plea appeal. No glory in that to be sure.

Many of the guilty-plea appeals involve the Sixth Amendment issue of ineffective assistance of counsel. Often, youthful offenders claim they are forced by trial counsel to "take a deal" that they later regret. Rarely do these claims have merit. In almost every case, the Michigan Court of Appeals is not persuaded that the accused youth tendered anything but a knowing and voluntary guilty plea.

The mantra of the trial court taking the plea comes to mind: "Are you pleading guilty here today because you are guilty of this offense?" The accused, sheepishly, states in the affirmative.

Last year, however, the SCOTUS decided Padilla v Kentucky. The case reversed the conviction of a legal immigrant on the basis of ineffective assistance of counsel where the accused was not properly and fully advised of the immigration consequences of his guilty plea. Padilla was told not to worry about deportation because he had been in the country so long.

The Padilla case has drawn much attention among scholars of the criminal law; not for its immigration component, but for how it has expanded the scope of a lawyers duty to advise their clients of all the myriad consequences associated with their plea.

These consequences go far beyond the mere risk of incarceration and fines. The potential "collateral" consequences could an individual's right to obtain a loan, obtain insurance benefits, bear arms, to vote, serve on a jury, serve as a foster parent, to participate in particular professions, terminate pension benefits, determine where a person can live, result in the loss of child custody, and in the case of sex crimes, doom the individual to a near lifetime of onerous registration requirements. This is but a partial listing of the potential consequences.

Difficulties certainly arise for the lawyer facing her client's guilty plea. The collateral consequences associated with the plea are often scattered across the Michigan Penal Code, and the federal statutes.

Defense counsel is often oblivious to this trap-laden universe. The courts are wholly unconcerned with consequences to a plea that they do not impose. For their part, prosecutors are not troubled with matters outside their direct control.

Add to this the fact that Michigan's court-appointed defense counsel advises the accused on nearly a pro-bono basis, and you have the makings for a constitutional catastrophe; or at least an imminent collision with the Padilla holding.

In the Internet-Age, as the number of people with criminal records have increased, so has the ability of employers, educators, lenders, and landlords to gain direct access to those records. This makes obtaining legal advise as to the collateral consequences of a guilty plea all the more compelling.

Lawyers will have to be sharper than ever as they ambulate across the minefield of the criminal case. Keep your eyes wide open has always been a trait of the best criminal defense attorneys.

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Email Snooping by Spouse Results in Felony Criminal Charges

2011-01-07T07:30:00.000-05:00

Oakland County Prosecutor Jessica Cooper has elected to prosecute a Rochester Hills man for accessing his wife’s email account. The emails were accessed from a computer that the husband purchased for family use.

The criminalization of conduct involving computers and privacy has had federal and state law components. For example, the Electronic Communications Privacy Act was initially passed to proscribe electronic eavesdropping and was significantly expanded in 1986 from traditional “wired” forms of electronic communication, to include all forms of digital electronic communication.

A few years earlier, the Computer Fraud and Abuse Act outlawed electronic espionage. The federal computer crime scheme also features several “technology-neutral” provisions allowing prosecution for a variety of criminal acts involving a computer.

By creating a statutory right to privacy in Internet communications, the federal law creates an expectation of privacy in our digital transmissions and provides a tool for selective prosecution.

But does that expectation of privacy extend to a marital home? To the family computer?

A Rochester Hills woman, Clara Walker, is the complaining witness in the Oakland County case against her third (former) husband, Leon Walker. The husband purchased a family computer and set-up a gmail account for his wife. Shortly thereafter, suspecting his wife was conducting an affair with her second husband, Mr. Walker accessed his spouse’s gmail account to get the proof.

Apparently, his suspicions were well-founded as the couple was divorced last year.

The price of this confirmation, however, was high. Walker has been charged with unauthorized access to a computer; a five-year felony charge due to Walker's circumstances. The case, charged early last year, has kicked around the 52/3rd District Court and the Oakland County Circuit Court since March, surviving the defendant's motion to dismiss. Trial has been scheduled for Valentines Day.

The unauthorized computer access provisions of the Michigan Penal Code under which Walker has been charged are part of a 1979 statute designed to combat identity theft and computer hacking. The provisions in the act create a presumption that access to another person’s computer file or digitized data was unauthorized. Various access or password-related exceptions are available to rebut the statutory presumption.

Two prior convictions, or an amount involved in the crime between $1000 but less than $20,000, elevates this computer crime from a misdemeanor to a felony. Cooper has received criticism for charging an individual for alleged conduct resolved in family court. As she'll tell you; "happens all the time."

The case recently began receiving national attention when Walker, formerly an IT professional for Oakland County, cast Attorney Ray Cassarr aside in favor of "Feiger Law". Figures.

Mr. Walker’s trial, over which Oakland Circuit Judge Martha Anderson will preside, should present some interesting evidence. The private family circumstances leading to the Walker's divorce proceedings may be deemed relevant to the criminal case. Also, given the way the statute is worded, some interesting defenses can be presented to a jury. Among them, the defense counsel could focus the jury on whether a spouse’s separate email account on a family computer is private and whether there is an expectation of privacy in such an account when your husband has the password.

Any conviction will most likely be appealed. We here at the Law Blogger will keep an eye on this one for you. Expect updates.

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Bloomfield Hills' Medical Marijuana Ordinance Challenged by Lawsuit

2010-12-18T09:37:00.001-05:00

Bloomfield Hills passed an ordinance in October requiring card-carrying certified medical marijuana users to register with the Bloomfield Township Police Department. The ordinance also requires the submission of a form to the police disclosing the “patient’s” drivers license number and date of birth, whether the patient owns or rents their home, and identifying how many other patients share their home.

In addition, the ordinance limits the number of medical marijuana patients that can live at one address and prohibits growing medical marijuana anywhere in Bloomfield Township. Violation of the ordinance is a 93-day misdemeanor carrying a $500 fine.

Bloomfield Hills is among several municipalities that have passed ordinances that restrict the provisions of the Medical Marijuana Act, criminalize conduct authorized by the Act, or both.

Now the ordinance is the subject of a lawsuit filed against the township by two crafty [their “clients” are John and Jane Doe] veteran criminal defense attorneys: Tom Loeb and Neil Rockind. The lawsuit, undoubtedly heading to the Michigan Supreme Court, does not seek money damages but rather, declarative and injunctive relief.

Township by township, the MMA is coming under fire for a glaring flaw: it is a ruse for recreational pot users. Yes, there are legitimate medical marijuana users out there, in spades, for whom the MMA was designed to help. There are also many “patients” whose medical records were reviewed with a passing glance by a physician more interested in the high-volume review fees than in determining whether the person has a genuine chronic medical condition of the sort required by the MMA. The LawBlogger wonders how many certified users, among the tens of thousands of backlogged applicants, are under the age of 25; or are college kids whose only chronic condition is their desire to party down.

As these legal challenges grind through the court system over the next two or three years, the MMA will be subject to death-by-ordinance on a township-by-township basis. Attorneys Rockind and Loeb remarked in their press conference announcing their lawsuit that the ordinance in Bloomfield Hills cannot stand to the extent it contradicts a valid Michigan law.

While it may not be the best example of tightly drafted legislation; while it undoubtedly suffers from problems of perception/deception, the MMA is a valid state law. The appellate courts will have no choice but to invalidate ordinances that limit the scope of the Act, or criminalize it’s legitimate purposes.

Once again, we pose the question: should marijuana just be outright legalized in Michigan? We are interested in your view on this subject. To weigh in, simply comment on this post or register a comment on the discussion board of our FaceBook fan page.

For more information about the MMA and its certification process, click on this link.

Updates: Here is a link to a case from California holding that a district judge erred in denying a patient, who was on probation, permission to "medicate" with marijuana.

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Felony Child Support Cases Get Review by Michigan Supreme Court

2010-12-14T07:31:00.002-05:00

Last week, the Michigan Supreme Court granted leave on three cases challenging the constitutionality of the Felony Non-support Act; the statute criminalizing the failure to pay timely child support to the custodial parent.

This blog has covered the felony child support issue relative to the People v Likine case from Oakland County Circuit Court. That case, along with People v Harris (from the Muskegon Circuit Court) and People v Parks (Ingham County)were granted leave for further appeal.

A decision from the Supreme Court is expected sometime in 2011.

In Harris, Justice Robert Young, Jr. dissented from the majority of his colleagues in granting leave on the grounds that the appellant pled guilty in the trial court, cutting a deal on his child support payments to avoid jail.

One of the defenses that will be addressed in all three pending cases is whether a child support payor charged with this felony can raise the issue of his or her “inability to pay” in the criminal court. Of course that defense is often raised in family court.

Once you’ve been charged with felony child support, however, the “inability to pay” defense is unavailable per the Michigan Court of Appeals holding in the published case of People v Adams. In granting leave for further appeal, the High Court expressly directed the parties to address the constitutionality of the Adams holding.

Generally, if you are having difficulty keeping your child support obligation current, you should immediately seek relief in the family court before you build an arrearage.

An arrearage, if significant, can lead to a felony charge. Technically, a day late and a dollar short is all that is required by the prosecutor to charge a case.

If you’ve already been charged, then you can still attempt to seek relief from the family court in the form of a reduced ongoing monthly obligation and, with the payee-parent’s consent, a waiver of interest and service fees. There must be some basis for modification other than you simply ignoring your obligation.

We will keep our readers updated on this strand of cases.

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Nun Indicted in Gotham for Embezzling Nearly Million From Catholic College

2010-12-11T11:12:00.004-05:00

Nunsense! Earlier this week, Marie Thornton, a nun known around Westchester County, New York's Iona College as "Sister Susie" was indicted for embezzlement in the U.S. District Court in Manhattan. She was charged with stealing nearly a million dollars over a decade from the private Catholic college which she served as a vice president for financial affairs.

Thornton pled not guilty to the charges. Apparently, the college found out about their CFO's sticky fingers some time ago, but declined to report the crime or press charges.

The missing funds were only recently disclosed on the college's 2008 tax forms which indicated that an unnamed employee misappropriated $80,000 each year in small amounts over a ten-year period. The tax filing stated that the monies were garnered via fraudulent checks and a college credit card.

When it discovered the shortfalls, Iona did fire Thornton (and another employee), stating only that she was on a permanent leave of absence. The Inspector General for the U.S. Department of Education connected the dots, arresting Thornton last Thursday.

Sister Susie left the Manhattan federal courthouse on her own recognizance. She is believed to be staying with her cloister, the Sisters of Saint Joseph, in Philadelphia, where she is known by another alias: "Sister Marie".

Sister Marie's lawyer, Sanford Talkin, was not talking about the case, or his client's whereabouts while the matter remained pending; promising only a hard-fought trial down the road.

Iona College's former basketball coach has commented publicly that Sister Susie spent most of the embezzled funds gambling in nearby Atlantic City. A good bet is that she's now heading for the confessional.

Michigan Connection: Iona College is run by the Christian Brothers of Ireland, the same denomination that founded Brother Rice High School in Bloomfield Hills, MI.

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Lake County to Absorb 2500 California Felons

2010-12-11T07:26:00.005-05:00

In 1998, the Michigan Department of Corrections opened the Michigan Youth Correctional Facility in Baldwin, Michigan; right smack in the middle of the Manistee National Forest in Lake County. The facility, known as the “punk prison”, closed in 2005 and was subsequently sold to GEO Group, Inc., a Texas-based conglomerate.

Lake County has suffered unemployment as high as 20% as a direct result of mothballing the youth facility. The situation is about to change, however, due to California’s chronic prison overcrowding.

This blog has been tracking the landmark prison overcrowding case recently argued before the SCOTUS. In a proactive effort to alleviate the situation, California recently contracted with the GEO Group to house more than 2500 inmates in the newly-renovated facility.

California’s contract with GEO is worth a reported 60-million per year to the private detention management services company. The contract begins in 2011 and runs through 2014. Given California’s fiscal woes, you have to wonder how they can afford it.

Nevertheless, Lake County Michigan is ready to absorb the collateral benefits associated with accepting thousands of Californian felons, expecting to add as many as 500 jobs to the local economy.

This development hammers home the idea that in our democratic society, the constant tension between law and freedom results in a massive resource allocation for prisons, jails and law enforcement apparatus.

So when you are driving Up North this summer along M-37, just remember not to pick-up any hitchhikers.

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Comic Book Explains Arrests and Lawyers to Teenage Children

2010-12-01T22:18:00.001-05:00

In New York City, anyone arrested under the age of 16 is now provided an informational pamphlet (four pages) explaining the criminal process from the booking stage right through sentencing.

Is it me, or do others find this one of the latest signs of the apocalypse? This is a sad commentary.

This comic book does not mention the presumption of innocence or the specific charges facing the youth (although it has the feel of a possession rap). There is an assumption that the arrest was valid. Defenses are not referenced.

In the end, the judge finds the urban youth guilty. Sad but realistic. [This link will download a PDF of the entire comic.]

The concept of this instructional graphic pamphlet was hatched by the Youth Justice Board of the non-profit Center for Court Innovation whose mission is to teach high school students about public policy, leadership and public speaking.

Khaair, a Justice Board member who did not want his last name published, said they decided on the comic book as their project because, "the youth of New York don't have representation and we really need a voice -especially for the stuff that involves us."

This "stuff" apparently involves cops, arrests, criminal charges, drugs, and lawyers. All in a day's work over in Queens at the Francis Lewis High School where Khaair is a senior. BTW: he wants to be the Mayor of Gotham and in our opinion, he's off to a great start.

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Oakland County's Ax-Murdering Teacher-Housewife Receives Habeas Relief

2010-11-28T08:30:00.002-05:00

Sorry about that headline. But this case was all-over your evening news back in 2004, when kindergarten teacher Nancy Ann Seaman axed her long-time husband to death on Mother's Day.

Earlier this month, a federal judge granted Seaman's petition for Habeas Corpus. Habeas relief is considered when a convicted inmate, having exhausted her state court appeals, sues the warden of her prison in federal court on the theory she is being illegally detained by the State of Michigan in light of constitutional errors in a state court criminal proceeding.

Ms. Seaman was jury convicted of first degree murder before soon-retiring Oakland Circuit Judge John McDonald. Seven-months after her trial, Judge McDonald reduced Seaman's conviction from first to second degree murder.

Both Seaman and the prosecutor appealed. The Michigan Court of Appeals reversed the trial court and reinstated Seaman's first degree murder conviction. [The linked MCOA opinion contains a fascinating in-court colloquy about premeditation between the prosecutor and trial judge at the hearing on Seaman's motion for a new trial, beginning on page 5.]

The Court of Appeals found (by 2-1) that the trial court abused its discretion by acting as a "thirteenth juror" in reducing the conviction to second degree murder. The intermediate appellate court also held that premeditation has no set time-frame but rather, can be established in the fleeting moment that it takes to have a "second look" at an imminent homicide.

Dissenting Judge Karen Fort Hood was troubled by the apparent "disconnect" between Seaman's self defense theory and testimony regarding "battered spouse syndrome". Evidence relative to the latter theory was limited by the trial court. Judge Fort Hood also commented on what she perceived as a confusion of jury instructions on the two concepts. See the last two pages of the above link for her concise dissent.

The Michigan Supreme Court declined further review of Ms. Seaman's conviction.

With her state appellate options exhausted, Seaman turned to federal court via Habeas Corpus. In her initially successful petition, she asserted that she was denied her right to effective trial counsel, guaranteed by the Sixth Amendment to the U.S. Constitution, when Attorney Lawrence Kaluzny did not challenge a ruling by the trial court that limited the testimony of Seaman's expert on "battered spouse syndrome". [BTW: In Oakland County, you just cannot hire better trial counsel than Larry Kaluzny.] The federal judge has ordered a new trial for Seaman.

We here at the LawBlogger, however, need you to stay tuned on this one as Michigan Attorney General Mike Cox is appealing the federal district court judge's order to the U.S. Sixth Circuit Court of Appeals.

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Police and High Tech Monitoring

2010-11-23T00:17:00.000-05:00

Law Blogger Editor's Note: This post is taken from the official SCOTUS blog and is the original content of blog author Lyle Denniston. The SCOTUS blog tracks cases pending before the U.S. Supreme Court, providing pre-decision analysis, commentary, as well as links to the briefs filed in the cases, and copies of the decisions.

The next chapter in police use of new technology has begun to unfold in the Court, against the background of a direct conflict among lower courts. At issue is tracking of suspects by secretly installing a GPS device on their cars.

Like many Americans, police forces are quick to adopt new electronic devices, capable of processing a wide range of information despite the small size of many such instruments — some as small as a pack of gum. The Supreme Court is more cautious in the face of advances in technology, preferring to move slowly in settling the new constitutional issues stirred up. Next to test its approach, it appears, will be police use of GPS tracking. One appeal on the issue is already at the Court; another, from the federal government, may not be far behind.

GPS — or Global Positioning System — is a way of using orbiting satellites to locate, with accuracy to 100 feet or less, an object or a place. In a car, a GPS device can tell directions, and guide a motorist to the next interchange, or the next fast-food restaurant. It works by recording precise geographic locations, one after the other. The device’s memory can show an entire trip. Obviously, then, it is a good device for monitoring someone’s movements. And that is how police departments are now using it — an alternative to hidden cameras or visual surveillance.

What the Court is now being asked to decide is, first, whether a GPS track is a “search,” under the Constitution’s Fourth Amendment, and when might the continuous monitoring of a track become an invalid search if police do it without having a search warrant. The Supreme Court left that second question open when, in U.S. v. Knotts in 1983, it ruled that police use of an electronic beeper to track a suspect’s trip to a drug lab was not a search. What seems to be newly at issue is the role that the duration of tracking plays in the constitutional equation; the argument is that, the longer the tracking, the more movements are monitored, the greater the potential for invading privacy.

The issue may lead the Court into a discussion of just when a car or truck moving about in public places becomes not an object of public viewing but a conveyor of private information. The Court has often allowed more police activity toward moving vehicles than stationary, private places; the “automobile exception” to the Fourth Amendment’s warrant requirement goes back to Carroll v. U.S., a 1925 decision.

Earlier this month, lawyers for an Oregon man, Juan Pineda-Moreno, filed the first GPS tracking case at the Court (Pineda-Moreno v. U.S., docket 10-7515). The petition is here. The Ninth Circuit Court ruled that such a track was not a search; its decision is here. A Circuit Court order denying en banc review, together with a vigorous dissent, is here. There is a better than even chance that the Court will hear the case — or perhaps the next case to come along — because there is widespread disagreement among the lower federal and state courts on the issue.

The next case that seems likely to follow Pineda-Moreno to the Court could be one by the federal government. It lost a case involving a District of Columbia drug dealer in the D.C. Circuit Court, conflicting directly with the Ninth Circuit. The D.C. ruling (in a case then titled Maynard v. U.S.) can be found here. Just last Friday, the D.C. Court denied the Justice Department’s plea for en banc review by a 5-4 vote on the GPS issue (the denial order and separate opinions accompanying it are here).

The government may tip its hand on its next step when it responds to the Pineda-Moreno petition; that response, unless the time is extended, is now due on Dec. 17. Among the government’s other options would be to agree that the Court should hear the Oregon case, or urge the Justices to hold it while the government pursues its own appeal in the Maynard case (Lawrence Maynard’s companion case did not raise the GPS issue; that was an issue for Antoine Jones in a consolidated case. The government sought rehearing only as to Jones and the GPS question.)

The Oregon case began in the early summer of 2007, when federal narcotics agents went into the driveway of Juan Pineda-Moreno’s mobile home, and put a GPS tracking device under the bumper of his Jeep Grand Cherokee. Between June and September, they made seven trips to the Cherokee, sometimes in the driveway, sometimes at the curb, once at his workplace, installing GPS devices, some as small as a pack of chewing gum, or replacing the batteries. Pineda-Moreno was completely unaware.
Ultimately, the four months of GPS tracking turned up an array of information about Pineda-Moreno’s movements — where he went, how long he stayed, the stops he made. Most critically, they tracked the vehicle to remote forest areas in southern Oregon and northern California, leading to the discovery of large plots of cultivated marijuana.

Pineda-Moreno pleaded guilty to one count of growing marijuana — more than 1,000 plants — and one count of a conspiracy to do so. His guilty plea was on condition that he could appeal to challenge the evidence gathered with the GPS tracking. He was sentenced to four years and three months in prison. The Ninth Circuit, agreeing with the trial court, found the GPS monitoring was not a search under the Fourth Amendment.

In seeking Supreme Court review, his lawyers raised two questions: first, whether the prolonged monitoring via the GPS devices was a search (the issue on which the Ninth Circuit and D.C. Circuit explicitly disagree), and, second, whether the secret planting of the device on the Jeep while on private property (the “curtilage” of his mobile home) was an invalid search.

The petition, like the panel on the D.C. Circuit in the case there, relied significantly upon a passing comment that the Supreme Court made as it decided the Knotts case 27 years ago. If surveillance round-the-clock of “any citizen of this country” should occur “without judicial knowledge or supervision,” the Court said, “there will be time enough then to determine” whether that was unconstitutional. That, according to Pineda-Moreno’s coounsel, is his case.

The case, the petition asserted, “addresses precisely the type of ‘dragnet’ monitoring of personal information that this Court expressly noted…would warrant further review.” There is growing conflict and inconsistency among both federal and state courts on the Fourth Amendment and GPS tracking, the filing argued.

Among other points discussing the Knotts precedent, the petition suggested that the GPS device gave police considerably more opportunity to track private movements than the beeper involved in that case. A beeper operates on a radio frequency, so police have to be within range of it to pick up the signal, the petition noted, while GPS devices “record all information as to the subject’s whereabouts and do not require police tracking.”

The D.C. Circuit relied upon that difference, as well as on the prolonged nature of GPS monitoring, in declaring that the Antoine Jones case was not controlled by what the Supreme Court had held in the Knotts decision. Other courts have felt directly bound in GPS cases by Knotts, and the Justice Department made that point when it asked the D.C. Circuit to rehear en banc the Jones case.

Federal prosecutors’ rehearing petition in the Jones case could be read as telegraphing what a government appeal to the Supreme Court in that case would argue. The D.C. Circuit panel’s decision on GPS tracking, that document argued, “calls into question the use many common and accepted forms of surveillance of public places, such as visual surveillance and fixed cameras….If the panel’s opinion remains in force, well-accepted investigative techniques such as physical and photographic surveillance of persons, places, and objects exposed to public view could be called into question if the use of those techniques were sufficiently ‘sustained’ or ‘prolonged.’ ”

The attorneys for Antoine Jones opposed further review in the D.C. Circuit, suggesting that the government was raising a “sky is falling” claim, and arguing that the panel had simply required agents “to get a warrant before engaging in prolonged use of GPS in a criminal investigation.”
The debate over the scope and impact of that ruling was taken up anew by dueling opinions among the judges when en banc review was denied.

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Spending Her First Years in Prison

2010-11-20T08:06:00.003-05:00

Law Blogger Editor's Note: From time to time, this blogger visits clients in Michigan's prisons as a roster attorney for the Michigan Appellate Assigned Counsel System. This blog post is the original content of the CorrectionsOne web site. It is an interview with Deborah Jiang Stein who was born heroin-addicted in a federal prison in West Virginia and spent the first five-years of her life there. Today, she tours women's prisons to speak of hope and rehabilitation to both inmates and prison staff.

What can you say about spending your first year of life in prison? How did that shape you?

I was born and lived my first year in the Federal Women’s Prison in Alderson, West Virginia. I embrace that year as a primal sensory memory, most vivid when I visit now as an inspirational speaker. I recognize familiar sounds -- something I can’t quite name -- and the food service, which hasn’t changed since the prison was built in the 1940’s. Other areas of the compound I feel with a cellular intensity.

Born heroin addicted, I’m told and read in prison files that in my first year I displayed the usual problems of drug-exposed infants -- sensory overload, and physical and emotional delays. It’s taken a lifetime to re-wire my brain and I’m still learning how to manage some of these delays.

Multiple broken attachments, from mother to foster care to adoption, shaped my early life as a timid and angry girl. That first year of attachment to my mother in prison saved me, I believe, because at least I bonded. Later, the movement and losses from mother to foster family to adoptive family took years for me to identify, then grieve, and integrate. This is a lot for a child to metabolize.

You’ve recently written a memoir. Why now?

I began my memoir because several agents and editors suggested I do so. My story is a lesson for others, I’ve come to understand, and touches common themes in many people’s lives, especially themes related to secrets and stigmas. I’ve turned mine from a burden into a blessing as I write and speak about my journey and what I’ve learned. I also write about coming of age in the 1960s, being multiracial, and adopted into a white family.

We all have secrets. Everyone. Mine might be more dramatic than some, but everyone has at least one secret. My story is a testimony to encourage others to face and move beyond their secrets, past whatever pain and shame they hold.

My agent is now shopping my memoir proposal.

You now have a career as a public speaker; what message are you trying to put out there?

These days I’m speaking about the havoc caused by shame and secrets. I’ve learned that it’s not secrets that destroy us -- it’s the keeping of secrets that destroy. I spent years on the run outside the law in a world of crime and drug addiction, all because of the stigma and secrets I held about my prison roots, and other damages I’ve faced.

My story also speaks to the common thread of how we all look for hope in our lives. I’m evidence that even when the odds are stacked against a person, we can rise and overcome adversity.

I see myself as a scout, a guide for women who seek an alternative reality to the one they live. I carry a message of possibility, that we can all somehow live with what’s irreconcilable.

Besides women in prisons, I address professionals in the fields of mental health, child welfare, corrections and other social services, as well as higher education. I’ve learned that professionals in the field also seek personal growth for themselves, not just for the people they serve.

What are some particular challenges faced by women in prison who are mothers?

One problem is the stigma of prison for a mother and her children.

The biggest wound is the broken bond between mother and child. The list goes on: missing a baby’s first smile; that first step; even the baby throwing up on you. A missed birthday party, first day of school, first date, graduation, everything a parent normally shares with a child.

I’ve read stories about women whose “hormones ricocheted wildly, ached from the milk that would not be nursed out of her swollen breasts, and she [the mother] used heroin smuggled into the prison to deaden the shame and loneliness.” I’m saddened, still, that this is in part my prison mother’s story.

Children born into prisons aren’t something many readers hear about, and even many of our readers (most of whom work in corrections) probably aren’t very aware of the phenomenon. Do you have any numbers on how children born in prisons? How does the system handle these people?

About 85% of women in prison are mothers. Almost 2 million children under the age of eighteen have a parent in prison, and most of these kids are under age ten. That’s a population larger than the city of San Francisco, larger than the state of Delaware. According to the Bureau of Justice, anywhere from 4%-7% of women sentenced are pregnant. This translates into close to 10,000 babies born to mothers in prisons. There are currently seven women’s state prison nurseries. My recent article for the Child Welfare League of America “Babies Behind Bars” highlights these nurseries and the issues involved with babies in prison.

How are pregnant women behind bars viewed by other women?

Since the majority of women in prison are mothers, I’m told for the most part, inmates can relate to those who are pregnant. One “old timer” told me that when she was in jail and in the early stages of her pregnancy in 1974, if she’d needed any protection, her friends would’ve “stood up for her.”

Many states still shackle pregnant women, and a chain around the belly can harm a fetus. A number of groups lobby to improve the services for pregnant women in prisons. I look forward to seeing these changes, look forward to the day when adequate resources for mental health and addiction in our communities. This alone can help reduce our rising rate of incarceration.

Deborah Jiang Stein is a writer and keynote speaker, and tours women's prisons as an inspirational speaker. She's working on a memoir and short story collection. Visit www.deborahstein.com for more information.

Five out of Six Trial Victories; Not Bad

2010-11-03T11:34:00.006-04:00

Here at Clarkston Legal (i.e. the law firm of Karlstrom Cooney) we try cases from time to time. Most good attorneys, however, will concede that trying the case is a last resort; it is almost always better to reach a reasonable settlement.

Much of our firm's trial experience comes from the realm of criminal law. In the criminal law, the constitutional rights of the accused are often implicated, threatened, or stomped upon. Trials are often the only way to protect those rights.

Since 2007, this blogger has gone to trial six times in criminal matters; five juries and one bench trial. Five of those six trials resulted in acquittals for our clients.

This post is not to proclaim our trial skills but rather, to highlight the importance of advocating the accused's constitutional rights to a trial when important issues in a charged criminal case are unresolved.

Experienced criminal defense attorneys know when to take a case to trial therefore, the odds of victory are increased. If the defendant has a bad case, it does not usually end up in trial.

Factors to consider when deciding whether to try the case include the prosecutor's "policy" of negotiating a plea agreement, or not. Also, whether the trial court punishes a defendant at sentencing for going to trial, and losing. (Not supposed to happen but does.)

For a criminal defendant, walking out of court following acquittal is a new lease on life; not only do you preserve your freedom, you also avoid a felony and an MDOC file.

This is very important. We live during a time when the Michigan Penal Code is becoming increasingly complex. Employers, landlords, and other creditors are tuning-in to an applicant's criminal history. Protecting your record against a weak, or over-charged offense is critical.

This blogger's recent track record for trials and other important cases can be found here, at the AVVO website. This site is useful to research lawyers and doctors. Check out the profile of the lawyer you are thinking of hiring to be sure he or she is right for your case.

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"Super Drunk" Driving Law Takes Effect Today

2010-10-31T10:02:00.000-04:00

If your Halloween plans for today include any heavy drinking, think twice before getting behind the wheel.

Persons caught operating a motor vehicle after bing-drinking, or with a high tolerance for alcohol, will face stiffer penalties starting today. If a driver's blood alcohol (BAC) is measured at more than .17 grams per 100 milliliters, (more than double the legal limit) then the new enhanced penalties will apply.

Those penalties include a one-year license suspension for first-time "super drunks"; an increase in the potential maximum jail sentence from 93-days to 180-days; higher fines; and mandatory use of an "ignition interlock" device. The new law also features the longest alcohol rehabilitation treatment requirement on the books; one-year.

Once a conviction under this new law is abstracted to the Secretary of State, the driver's license will be suspended for one-year. After a 45-day "hard suspension" where all driving privileges are suspended, a person can apply for restricted driving privileges for the balance of the year provided, however, that an " ignition interlock" device has been installed in the vehicle. Under the old law, the hard suspension was only for 30-days and there was no interlock requirement.

Installing an interlock device will cost you about $50 and up to $100 per month to maintain.

Also, there are new penalties created under the Super Drunk law relative to operating an "interlocked" vehicle with a BAC of more than .025. If a driver's probation is violated in this fashion, the Secretary of State will double the driver's license restriction by imposing a new 365-day suspension from the date of violation.

Beware if you lend your vehicle to a convicted Super Drunk on probation. The new law requires impoundment and immobilization of any vehicle driven by a person under interlock restriction that is caught operating a vehicle without the device. The owner of the vehicle is responsible for impoundment and storage costs.

Only time will tell whether this new law results in safer roadways. There is no doubt that the tougher drunk driving laws implemented over the past 20-years have reduced (but not eliminated) drunk-driving related injuries and deaths.

One concern from within the trenches is how county prosecutors will use the new law in their charging decisions at district court. Last year, the Oakland County Prosecutor stopped offering the lesser included offense of impaired driving to those charged with drunk driving. This blog wonders whether a Super Drunk first offender will be offered a plea under the standard "Operating While Intoxicated" law, thereby avoiding the new interlock costs and restrictions as well as the other enhanced penalties.

If such plea reductions are not tendered under appropriate circumstances, the new law could result in many unnecessary jury trials.

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Oakland Circuit Judge Potts Fosters Jury Innovation

2010-10-10T10:12:00.001-04:00

Judge Wendy Potts has been conducting an interesting pilot program of the jury process in Oakland Circuit trials. She maintains the only courtroom in one of Michigan’s busiest venues where jurors are encouraged to submit written questions to witnesses, take notes during the trial, and discuss the case during their morning and mid-afternoon breaks.

Once the jury is empanelled, each juror is provided a notebook with all the jury instructions and, in civil cases, a set of stipulated trial exhibits for their convenient reference (or distraction) throughout the trial.

The jurors welcome the opportunity to interact with the input of proofs. Judge Potts instructs them to avail themselves of the opportunity to submit written questions to witnesses before they are excused.

These are significant modifications to the “classic” jury trial in Michigan. In other county trial courts throughout the state, jurors are expressly instructed not to discuss the case with anyone during the trial (which may take several days, even weeks). In the classic jury trial model, each individual juror is repeatedly instructed to keep the facts of the case to themselves until they retire to the jury room for deliberations with their chosen colleagues.

In Judge Potts’ court, however, jurors are encouraged to take a stab at figuring out just what is really going on by writing out their own questions at the conclusion of examination by the attorneys. Judge Potts fields the written questions and discusses them with the lawyers in a bench conference to determine whether the question(s) should be posed to the witness.

This has an obvious effect on how the proofs of the case are submitted to the jury. Once the attorneys complete their scripted examinations, the jurors have the opportunity to follow-up.

Instead of keeping what they have just seen and heard to themselves for the duration of the trial, they are permitted to discuss the testimony, as it unfolds; including the answers to their own questions.

No such a thing as a “dumb question”, right…

On Thursday and Friday of this week, I had the opportunity to sample Judge Potts’ experimental jury trial method in a criminal felony trial. At least one juror had a question for every witness. Judge Potts asked the attorneys at the bench whether we wanted the question posed to the witness.

While I did not mind the (benign yet telling) questions posed by the jurors, it concerned me, as the defense attorney, that the jurors were free to discuss the case while it was being put in by the attorneys' respective examinations.

But would jurors, so encouraged, seek other means of obtaining information about the case? Perhaps they would Google the names of witnesses or the attorneys. Judge Potts expressly warned them not to do this.

It is in the nature of trial attorneys to want control of the information being submitted to the fact finder. After all, ours is a results-oriented business.

In the jury trial that concluded today, my client was acquitted. It was difficult to tell weather the innovations had any effect on the outcome.

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Medical Marijuana Mess

2010-09-20T07:55:00.002-04:00

43rd District Court Judge Robert Turner says it is one of the worst pieces of legislation he has ever seen. He made that assessment of the Michigan Medical Marijuana Act (MMA) back in June 2009 when dismissing pot growing charges brought by the Oakland County Prosecutor against Robert Lee Redden and Torey Alison Clark.

Last week, the Michigan Court of Appeals affirmed Oakland Circuit Court Judge Martha Anderson's reinstatement of the criminal charges against Redden and Clark. Now, the accused Madison Heights couple will either have to plead guilty or go to trial.

At the time of the raid on the couple's residence, the Oakland County Sheriff seized 1.5 ounces of pot, some nominal cash, and about 21 small plants. Three weeks prior to the raid, each defendant had submitted to a medical certification exam with Dr. Eric Eisenbud of Colorado (and of the recently founded Hemp and Cannabis Foundation Medical Clinic) and applied for a medical marijuana card pursuant to the MMA. Their cards, however, had not been issued at the time of the raid.

At the couple's preliminary examination before Judge Turner, the prosecutor argued that: a) the defendants were required to abstain from "medicating" with marijuana while their applications to the State of Michigan's Department of Community Health remained pending; and b) the defendants did not have a bona fide physician-patient relationship with Dr. Eisenbud.

Judge Turner indicated that the MMA was confusing relative to what constituted a reasonable amount of marijuana. The defendants in this case were found with an ounce and a half; the MMA allows 2.5 ounces.

Judge Turner made the following ruling:

For that reason, I believe that section 8 entitles the defendants to a dismissal, even though they did not possess the valid medical card, because section 8 says if they can show the fact that a doctor believed that they were likely to receive a therapeutic benefit, and this doctor testified to that. And Dr. Eisenbud is a physician licensed by the State of Michigan. And that’s the only requirement that the statute has. You don’t have to be any type of physician, you just have to be a licensed physician by the State of Michgan.

So, based on that, I find section 8 does apply. And I believe I’m obligated to dismiss this matter based on section 8 of the statute.

Under the applicable court rules, the prosecutor appealed the district court dismissal to the Oakland Circuit Court. In reversing her district court counter-part, Judge Anderson held that Judge Turner improperly acted as a finder of fact in dismissing the case. Judge Anderson also questioned whether the couple could avail themselves of the MMA's affirmative defenses at all, due to their purported failures to comply with the provisions of the act; i.e. keeping the pot segregated and locked-up, and waiting until they received their cards from the Department of Community Health prior to growing their pot.

At the time of the Madison Heights bust, however, the couple could not have received marijuana cards because the DCH had not started issuing the cards. To date, almost 30,000 certifications have been issued.

In their opinion last week affirming Judge Anderson, the Court of Appeals held that the MMA's affirmative defenses were available to defendants even though they did not have their cards at the time their pot was confiscated. The Court of Appeals held against defendants, however, on the basis that, at the time of their preliminary examination in district court, their affirmative defense under the MMA was incomplete and thus created fact questions.

The Court found the following fact issues to be unresolved at the conclusion of the exam: the bona fides of the physician-patient relationship; whether the amount of marijuana found in the residence was "reasonable" under the Act; and whether the marijuana was being used by defendants for palliative purposes, as required by the Act.

The most interesting thing about the Court of Appeals' Redden decision is the scathing concurring opinion of Judge Peter D. O'Connell. Judge O'Connell wrote separately because he would have more narrowly tailored the affirmative defenses available in the MMA, and because he wished to "elaborate" on some of the general discussion of the Act set forth in the briefs and at oral argument.

Elaborate he did. Judge O'Connell's 30-page opinion first notes that the possession, distribution and manufacture of marijuana remains a federal crime and further notes that Congress has expressly found the plant to have "no acceptable medical uses."

In what will undoubtedly become a classic line from his opinion, Judge O'Connell writes, "I will attempt to cut through the haze surrounding this legislation." The judge is skeptical that folks are really using pot to "medicate" and suspects that they are using the plant for recreational purposes.

He also takes note of the poor quality of the legislation to the extent that it conflicts with other provisions set forth in the Health Code.

Judge O'Connell next takes a tour de force through the legislative history of the MMA. Here, we learn that the act was based on model legislation proposed by lobbyists known as the Marijuana Policy Project of Washington D.C. The group advances both the medicinal and recreational uses of marijuana.

"Confusion", and lots of it, is how Judge O'Connell views the MMA. In one of the many footnotes to his opinion, the Judge warns against all marijuana use until the score is settled, once and for all, by the Michigan Supreme Court:

Until our Supreme Court provides a final comprehensive interpretation of this act, it would be prudent for the citizens of this state to avoid all use of marijuana if they do not wish to risk violating state law. I again issue a stern warning to all: please do not attempt to interpret this act on your own. Reading this act is similar to participating in the Triwizard Tournament described in Harry Potter and the Goblet of Fire: the maze that is this statute is so complex that the final result will only be known once the Supreme Court has had an opportunity to review and remove the haze from this act.

As those who have read Harry Potter, would say: "Wow".

For their part, the criminal defense attorneys organized throughout Michigan have basically gone wild over the concurring opinion with its multiple web site references and pictures. The consensus among the defense bar, however, is that the majority opinion is correct and that Judge Anderson, at the end of the day, got it right; Redden was not the cleanest case to dismiss under the Act.

Finally, it seems that the Oakland County Sheriff and Prosecutor correctly anticipated last week's Court of Appeals' decision. A few weeks prior to the issuance of the Redden decision, they conducted a series of dispensary raids, ruffling tons of feathers along the way.

For some preliminary guidance, we have prepared a legal guide for the MMA for those seeking to use marijuana for legitimate palliative purposes under the Act. Take note, however, that at least one appellate jurist would have folks managing chronic "pain" with prescription meds until the medical marijuana mess is sorted out by our Supreme Court.

Self-Defense Jury Instruction Available to Felon-in-Possession of Firearm

2010-08-18T08:05:00.000-04:00

This post is from Royal Oak Attorney Paul Stablein's "Michigan Supreme Court Blog".

Last Friday, the Supreme Court rendered another opinion dealing with a criminal case in People v Roberto Dupree. The question presented was whether a defendant may assert the defense of self-defense when charged with being a felon in possession of a firearm contrary to MCL 750.224f. The answer, at least in regard to Dupree’s facts, is, “Yes.” The Court granted Dupree a new trial, finding that Wayne County Circuit Judge Brian Sullivan erred when he gave, sua sponte, a jury instruction which he called “the necessity defense to being a felon-in-possession.”

Justice Maura Corrigan wrote the opinion for the majority, consisting of Justices Weaver, Young, Markman, Hathaway and her, affirming the Court of Appeals published decision. (Judge Murray dissented). Justices Cavanagh and Kelly concurred in the result but wrote separately concerning the additional defense of duress which the defendant raised separately. Kevin Ernst represented Dupree on appeal.

The defendant’s version of the events differed significantly from the prosecution’s, but did create a plausible self-defense argument. Dupree was at a party and observed the complainant, Reeves, shove a female relative off of the porch. Dupree interceded and told Reeves not to disrespect his sister-in-law. Reeves shoved Dupree and the two fell off the porch wrestling. During the struggle, Reeves shirt came up and Dupree saw a gun in Reeves’ waistband. Dupree was in fear for his life because Reeves was bigger, drunk and armed, and, when Reeves went for the gun, Dupree grabbed it. As the two struggled over the gun, Dupree shot Reeves three (3) times. Dupree kept the gun, left the premises and threw the gun out of his car window when he was a sufficient distance from the house. Dupree was charged with Assault with Intent to Murder, Felonious Assault, Felon in Possession of a Firearm and Felony Firearm. The jury found him not guilty on everything except being a felon in possession of a firearm.

The verdict, the Court found, was necessarily correct in light of the trial court’s erroneous jury instruction which included the following element: “And third, that it was the defendant’s intention to deliver the gun to the police at the earliest possible time. The law imposes that duty as a concomitant part of that.” Michigan’s jurisprudence carries with it no such requirement, and the Court found that the error was not harmless.

Because the Court had granted leave to address whether, if at all, self-defense is available to a defendant in a felon-in-possession case, a majority of the opinion is devoted to answering that question. Because the defense is “embedded in our criminal jurisprudence” it is available as a defense to this charge even though the charge of felon in possession of a firearm was statutorily created and not part of the common law. “Legislative bodies enact criminal statutes against a background of Anglo-Saxon common law.” Unless the Legislature affirmatively abrogated the defense for a felon-in-possession charge, the Court concluded the defense is available. Of course, that means that, once the defendant proffers a prima facie case of self defense, it then becomes the prosecution’s burden to prove beyond a reasonable doubt the defendant did not act in self-defense. The Court affirmed the Court of Appeals’ decision to remand the case to Wayne County for a new trial on the felon-in-possession charge. Time will tell whther the prosecution will actually go forward in light of the Court's ruling.

U.S. Supreme Court (Slightly) Tilts Miranda Warnings Toward Police in Case From Southfield

2010-06-03T08:19:00.005-04:00

In January 2000, Van Chester Thompkins of Southfield committed a drive-by style shooting, killing one victim and wounding another. He was convicted by an Oakland County Jury in May 2002 of first degree murder, assault, and a variety of weapons charges.

The case was initially assigned to now-retired Judge Richard Kuhn and subsequently re-assigned to Judge Michael Warren. Thompkins was represented at trial by West Bloomfield attorney, Lawrence Kaluzny.

From these local beginnings, this case went all the way to the United States Supreme Court (SCOTUS).

Thompkins was apprehended in Columbus, Ohio nearly a year after the shooting and questioned extensively by Southfield PD detectives. During his custodial interrogation, the suspect refused to answer the detectives' questions for several hours.

Nearly three-hours into the mostly one-way interrogation, the following exchange occurred:

Detective: "Do you believe in God?"

Thompkins: "Yes."

Detective: "Do you pray to God?"

Thompkins: "Yes."

Detective: "Do you pray to God to forgive you for shooting that poor boy down?"

Thompkins: "Yes."

Kaluzny's motion to suppress this statement was denied by the trial judge. On the basis of this one-word confession, the jury convicted Thompkins, who is doing a life sentence in Coldwater, MI.

The conviction was appealed to the Michigan Court of Appeals and affirmed in an unpublished opinion issued in February 2004. Detroit appellate attorney Elizabeth Jacobs challenged the lower court's rulings on the motions to suppress Thompkins' statement and to suppress defendant's identification by the surviving shooting victim. Jacobs also raised issues of trial misconduct by the Oakland County Prosecutor, claiming that Kaluzny's failure to raise the issue below rendered Thompkins' legal representation constitutionally deficient.

The intermediate appellate court disposed of Jacobs' argument on the suppression issue with the following ruling:

Defendant argues that the trial court erred by denying his motion to suppress his statements to the police. Defendant asserts that the police improperly continued to interrogate him after he “implicitly” invoked his right to remain silent by failing to answer the officers’ questions. We disagree.

The record discloses that defendant was advised of his Miranda rights and, according to the interrogating officer, verbally acknowledged that he understood those rights. Contrary to defendant’s argument, the record does not demonstrate that defendant asserted his right to remain silent. Although defendant refused to sign the advice of rights form, he continued to talk with the officer, albeit sporadically. He answered questions with brief responses, or by nodding his head, but never said he did not want to talk or that he was not going to say anything. “When a defendant speaks after receiving Miranda warnings, a momentary pause or even a failure to answer a question will not be construed as an affirmative invocation by the defendant of a right to remain silent.” The trial court did not clearly err in concluding that defendant voluntarily waived his right to remain silent and that he did not subsequently invoke his right to silence. Defendant’s statements were properly admitted into evidence.

The Michigan Supreme Court declined Defendant's invitation to further review his case.

Once a convicted defendant exhausts all avenues of appeal in a state court, that defendant can avail himself of the federal courts via a petition for habeas corpus. Thompkins habeas petition was denied in the United States District Court for the Eastern District of Michigan (in Detroit).

In a remarkable opinion from the United States 6th Circuit Court of Appeals, Thompkins' conviction was reversed. The federal appellate court was unimpressed with the above analysis from it's Michigan counterpart; inferring that their unpublished opinion was weak on judicial application of significant precedent. The federal appellate court also believed the state appellate court got the facts of Thompkins' interrogation wrong.

The 6th Circuit relied on the prior and seminal SCOTUS decisions of Miranda v Arizona and North Carolina v Butler, which establish an accused individual's right to remain silent, and imposes a "heavy burden" on the state to demonstrate that a suspect, once advised of this right, has waived his privilege against self-incrimination.

In reversing the 6th Circuit, the SCOTUS held that by answering "yes" to the detective's questions about God, Thompkins gave an "implied" waiver of his rights and further, that from now on, defendants must expressly and unambiguously state their intent to remain silent to their interrogators. Also, police are no longer required to obtain written waivers executed by a defendant.

The case provides a slight advantage to police interrogators in that they can now continue to question a suspect until he affirmatively asserts his Miranda rights. In the police interrogation context, many people are simply not inclined to do so thus, our Miranda rights may have less meaning under the hot lights of persistent, aggressive and skillful police interrogation.

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Cell Phone Texting Ban Passes Michigan House

2010-04-21T06:57:00.003-04:00

Distracted driving takes lives. Many adults have experienced that sick feeling of guilt and relief when you realize you've crossed over the center-line because you were checking your cell phone.

For most of us, we swerve back to our lane, hoping for the best and, statistically, you're fine; you continue to your meeting or appointment. Others, however, are not so lucky. Many injuries and deaths result as the incidents of distracted driving sweep over our state's roadways.

The cause is the now-ubiquitous cell phone and our seemingly insatiable need to "stay-in-touch" with everyone and everything at all times. The electronic criminal lawyer posted on this subject last spring, speculating that it would not be long before the law catches up with our irresponsible habits.

The Michigan Senate has already passed the main legislation and Governor Granholm has indicated she plans to sign the legislation immediately into law.

The proposed fines are $100 for a first offense and $200 for a second offense. The House of Representatives are now working-out how violations will be recorded by the Secretary of State on a driver's master driving record.

Stay tuned and put your cell phones down when you are driving.

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Interview with Michigan Supreme Court Justice Maura Corrigan

2010-04-11T15:16:00.003-04:00

In 1989, I completed an 18-month stint as a research attorney with the Court of Appeals. My next job was an associate attorney position in the appellate section of Plunkett & Cooney, then a Detroit-based firm. Another attorney that joined the firm at the same time was Maura Corrigan.

At that time, She narrowly missed a choice (political) federal appointment as the U.S. Attorney for Detroit in the Bush 41 era. It was a professional perk to work alongside Justice Corrigan for two-years before she was appointed to the Court of Appeals; subsequently getting elected to the Michigan Supreme Court.

In yet another example of how fast and wide legal information is spread via the Internet, an excellent podcast series known as "Assistance of Counsel" kicks-off with an interview with Justice Corrigan. Assistance of Counsel is the product of former-Oakland County Prosecutor Paul Stablein, a partner in the Royal Oak firm of Flood, Lanctot, Connor & Stablein.

Stablin says, over time, the other Justices will be interviewed along with jurists from all levels of our legal system. What a fantastic resource to learn about who our elected jurists are, and what they think.

Good luck with the podcasts Paul; and keep your informative posts about our state's great common law tapestry coming.

ACLU Tests Constitutionality (i.e. Quality) of Court-Appointed Criminal Defense

2010-03-27T12:27:00.005-04:00

Prior to the Civil War, Michigan was one of the first states to get in on the ground-floor of providing legal defense to the poor and the accused. The constitutional right of the accused to an attorney was enshrined in the seminal case of Gideon v Wainwright, 372 US 335 (1963).

Things have changed. Michigan has gone from the "first-floor" to the cellar in terms of the quality of court-appointed criminal defense; at least as measured in terms of compensation.

The ACLU is challenging the public defender system in the case of Duncan v State of Michigan. The ACLU's brief argues that the quality of court-appointed legal defense in Berrien, Muskegon and Genesse Counties falls below the Sixth Amendment's guarantee of effective legal counsel.

The case was filed in the Ingham County Circuit Court where the trial judge certified Plaintiff's case as a class-action.

Defendants Governor Jennifer Granholm and the State of Michigan are represented by the Michigan Attorney General, Mike Cox. The AG's brief asserts that the duty to appoint and compensate public defenders falls to the local circuit court judges.

The AG brought a motion for summary disposition which was denied by the trial court. The court, however, granted the AG's motion to stay further proceedings until appeals from the decision were decided. The Court of Appeals affirmed the Ingham Circuit Court's rulings granting class certification and denying summary disposition. In a lengthily dissent, Appeals Judge William C. Whitbeck asserted that the case, which he described as a "fundamental challenge to Michigan’s system for operating and funding legal services for indigent criminal defendants" essentially could result in an unconstitutional violation of the separation of powers doctrine.

The case is scheduled for oral argument before the Michigan Supreme Court on April 13, 2010. Meanwhile, the state legislature is considering HB 5676 which seeks to establish a state-wide public defender system, along with the essential funding. The sponsors of the proposed legislation, Bob Constan and Justin Amash acknowledge they will have a very tough time to get this type of funding approved in the midst of the sustained economic downturn.

Never short on resources, however, the ACLU is bringing their game, on this same issue, to the United States Supreme Court in the case of Vermont v Brillon.

The ACLU's suit, and the proposed legislation have attracted national attention. (The Law Blogger picked-up on a National Public Radio feature that addressed the critical state of Michigan's court-appointed criminal defense.) The most likely result of all these efforts will be, "more of the same". The defense bar will continue to soldier on, as underpaid under-resourced champions of the constitution.

Defendants, for the most part, will continue getting convicted. No tears shed here, unless the accused is truly innocent. Then it's a real tragedy as well as a threat to our individual rights and the criminal justice system.

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TARP Fraud! An (Alleged) First in the Annals of Crime

2010-03-16T06:42:00.000-04:00

This post is a re-print from the Wall Street Journal's Law Blog. The post is the original content of Ashby Jones.

Here’s a story that elicits within us more than a whiff of sympathy for that big band of brothers and sisters we like to collectively call the U.S. Taxpayer.

After all, it’s the taxpayer that’s largely responsible for funding TARP, enacted after the financial meltdown to enable the government to purchase toxic or illiquid assets from banks and other financial institutions.

So trying to rip off the TARP program is like, well, going for the collective front pocket of the nation in an attempt to pull out some change. The gall.

On Monday, TARP-related allegations were lodged by federal prosecutors against Charles J. Antonucci Sr., the former president and chief executive of The Park Avenue Bank in New York. Among the charges: wire fraud, bank bribery, embezzlement and, yes, attempting to defraud the TARP program. Click here for the WSJ story, from Chad Bray; here for the criminal complaint.

“These charges are what they are,” said Stillman, Friedman & Schechtman’s Charles Stillman, a lawyer for Antonucci. “We’re going to study them and consider what our appropriate response to the charges will be.”

Bray reports that the allegations are one of the first publicly announced cases of fraud against TARP. Prosecutors allege that Antonucci engaged in several schemes to defraud the bank and its regulators, including making false statements in connection with an application by the bank for more than $11 million in TARP funds in 2008.

He later withdrew his application, after the bank regulator said it would not recommend the TARP application for approval. But when asked to explain his withdrawal, according to this Q&A with Bank Info Security, Antonucci answered:

It was two things: Nobody really knows what the rules are going to be in terms of those who take and utilize the TARP money . . . . And secondly, there is market perception that if you take TARP money, that you are now a bad bank, which is a perception that nobody wants whether you are or you aren’t.

Antonucci was president and chief executive of the bank from June 2004 until his resignation in October 2009.

Second Amendment Litigant is Unlikely Handgun Advocate

2010-03-02T08:05:00.004-05:00

Otis McDonald grew tired of the pattern of intimidation brought to bear upon him by some of the drug-dealing urban youth of his Chicagoland neighborhood. At times, they would curse him and brandish their weapons just a few feet from his porch in Chicago's Morgan Park. According to McDonald, some of these "punks" even threatened to "put him down."

Consequently, McDonald sought to even the odds by acquiring a gun, even if it meant he had to violate Chicago's anti-handgun ordinance to do it.

The 76-year old South-side Democrat, a retired grandfather and journeyman building engineer, who spent his career at the University of Chicago after serving in the military, is the petitioner in a case up for oral argument today at the United States Supreme Court.

An unlikely advocate for the right to "bear arms", at least in the organized sense, McDonald is not a card-carrying member of the NRA. That group, however, will join him today in addressing the High Court and requesting that the handgun ban be struck down as unconstitutional.

This Blog has been tracking the case, as some of the high-crime issues underpinning Chicago's handgun ban are relevant to the communities of Southeast Michigan. One of our earlier posts covered the lawyers arguing the case today.

There seems to be a consensus among legal professionals that Chicago's ordinance is likely to be declared unconstitutional. Today, the City of Chicago, through it's retained Washington D.C. appellate lawyer, is expected to argue the safety interests such a ban serves in high-crime areas.

The consensus among High Court watchers that the handgun ordinance will be struck is based on the Court's recent decision striking-down a similar anti-gun law in the nation's capital. The Supreme Court's decision in District of Columbia vs Heller, however, does not apply to the states since it arose in the District.

There are many reasons Americans feel a deep-rooted sense of righteousness when it comes to our right to possess and carry firearms. It's in our historic genes; our national tradition. Otis McDonald, on the other hand, acquired his taste for the right to bear arms out of good old-fashioned necessity. In order to feel safe in his own crime-ridden neighborhood and to protect his family from local thugs, he armed himself in transgression of Chicago's gun ordinance.

As a result, Law Professor Nicholas Johnson of Fordham University claims that Otis McDonald will be immortalized as a litigant in one of the rare cases that becomes common knowledge among our citizenry and stands for a single proposition; in this case, the right to bear arms.

Local Connection: Michigan Attorney General Mike Cox joined the NRA in filing an amicus brief in Otis McDonald's case.

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UM Law School Challenges Constitutionality of Felony Child Support Statute

2010-02-15T09:02:00.003-05:00

The mighty UM Law School has its hands all over the recent constitutional challenge to the felony child support statute. The case was originally charged by UM Law Alumni and Michigan Attorney General Mike Cox. The appellant-defendant in the case is represented by the Michigan Innocence Project, run out of the UM Law School by Professor David Moran.

The case, People vs Likine, was the subject of a one-day jury trial in the Oakland County Circuit Court back in November 2008. Years earlier, Selesa Likine was ordered to pay child support for her three minor children pursuant to her divorce proceedings; also in Oakland County. The criminal case against Likine charged that she fell behind on the support payments from 2005 through 2008, creating arrears in the amount of nearly fifty thousand dollars.

Ms Likine attempted to assert the defense of an "inability to pay" the support ordered by the family court. She claimed disability via the Social Security Administration stemming from her diagnosis of Schizoaffective Disorder and Major Depressive Disorder. Likine also asserted that she was unemployed due to a lengthily hospitalization at the beginning of the charging period. She further claimed that her support obligation was erroneously calculated by the family court, as it was based on a "phantom" imputed income of $5000 per month; a wage she claims she never earned in her entire life.

The felony child support statute is one of strict liability. The Michigan Court of Appeals ruled in a 2004 published case (People v Adams) that a defendant cannot assert a defense at trial of his or her, "inability to pay" the court-ordered child support.

Accordingly, in the Likine case, the Attorney General requested trial judge John McDonald to preclude Likine from introducing any of the above facts regarding her disability and resulting lack of income from jury consideration. The AG's motion was granted based on the Court of Appeals' Adams ruling.

Just prior to the beginning of her criminal trial, Likine's attorney moved for reconsideration of Judge McDonald's evidentiary ruling; this time arguing that precluding her from presenting evidence of her "ability to pay" and of her employment history, violated Likine's constitutional Due Process rights under the 14th Amendment to the United States Constitution. The motion was again denied.

Not surprisingly, Likine was convicted by the jury of failing to pay court-ordered child support and sentenced to one-year probation. When the jury was deliberating her case, however, they sent out a note to Judge McDonald asking for information about Ms Likine's employment history. Due to his earlier rulings in the case, Judge McDonald refused to answer the jury's query.

Following her jury trial, Likine secured appellate representation from UM's Professor Moran, who filed a motion for new trial; this time asserting that Likine's conviction violated the Michigan Constitution. McDonald, stating that he sometimes disagreed with the Court of Appeals' Adams decision, nevertheless denied the motion.

In her appeal currently pending before the Michigan Court of Appeals, Likine relies on a Michigan Supreme Court decision from 1889 which held that statutes cannot criminalize conduct which, through no fault of the defendant, is impossible to avoid. Professor Moran asserts that such a criminal law lacks the requisite, "voluntary actus reus" (bad act).

Along the same lines, Professor Moran raises a claim of violation of federal Due Process under the U.S. Constitution. In this fashion, Likine argues on appeal that the Court of Appeals' Adams decision wrongly eliminates the actus reus requirement of the felony child support statute, rendering it unconstitutional on its face.

In response, the Attorney General asserts that Adams remains controlling in felony child support convictions. The AG's argument is that the Michigan Constitution is not offended when a "prior judicial determination" establishes a payment obligation for which it is a crime to ignore. Since Likine's support obligation was established by the family court, she was afforded Due Process.

In a somewhat surprising move given the high-powered counsel on both sides, the Court of Appeals has submitted the case to a 3-judge panel for decision without the benefit of oral argument. The order to dispose of the case solely on the briefs was issued last week, despite both sides filing timely briefs which requested oral argument.

The losing side on this one will probably try to take the issue before the Michigan Supreme Court.

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Oakland County's Virtual Work-Release is Ready

2010-01-31T10:14:00.003-05:00

This post is copied from and is the original content of the DUI Blog of drunk driving Attorney Patrick Barone.

The Oakland County Sheriff’s Office is scheduled to implement a new “virtual” work release program by early February, 2010. Virtual work release will consist of an ankle tether using a satellite and radio global positioning system (GPS) monitored by the Oakland County Sheriff. It will give the Sheriff’s Office the ability to carefully track an inmate’s location twenty-four hours a day, seven days a week. The radio technology will even allow a defendant to be tracked inside a home or workplace.

In preparing for the upcoming start date the Sheriff’s Office is meeting with the Oakland County judges to orient them to the virtual work release program. The Sheriff has already met with the Oakland County Circuit Court judges and will be meeting with the District Court Judges in early January.

The eligibility for the new program has not changed. Accordingly, a judge must authorize participation prior to enrollment in the virtual work release program and offenders sentenced on any CSC (Criminal Sexual Conduct) charge are not eligible. Also, there may be no outstanding warrants, holds, or unpaid bonds.

Eligible inmates will be referred to the Jail’s Program Services Unit for an interview. The inmates address will be verified, and they will be oriented to the program. Inmates must provide written documentation verifying employment/school. The vendor for the GPS tether will provide staff to install the tether and Sheriff’s Office Booking staff will process the release. Inmates will be placed on the GPS tether as soon as they have been screened for eligibility and orientated to the rules.

The GPS tether selected by the Oakland County Sheriff is cutting edge technology that will allow authorized individuals such as a judge, probation officer or deputy sheriff to track the defendant’s whereabouts via a password protected web site operated by the manufacturer G4S Justice Services, Inc. Tamper, equipment failure and violation alerts will be sent out by G4S according to Sheriff’s Office parameters.

While on work release the defendant will be subject to certain appropriate “exclusion zones,” and will be allowed to leave their home only for clearly and specifically defined and approved work or school purposes. Exclusion zone violations will typically involve a warrant being issued. The offender is then picked-up and will serve the balance of their sentence confined in jail.

According to the manufacturer’s web site “using a standard web browser from any computer, officers can view and exchange monitoring and tracking data for enrollment, curfew schedules, caseload reviews, agency reports and termination. This information is also stored and monitored by specially trained personnel at our monitoring centers.”

Furthermore, the G4S tether “does not require a base or docking station due to the ability of the device to determine the location from both GPS satellites and cellular phone towers. This enhanced dual monitoring feature allows reliable location tracking from a single device even in impaired environments where RF and GPS alone do not work. The device incorporates a cellular modem and communicates information to the monitoring center over the CDMA network.”

Oakland County Undersheriff Michael McCabe said that the new virtual work release is a child of the new economy. Everyone is looking for ways to cut expenses without cutting services, and the new work release program is a much less expensive way to incarcerate non-violent offenders.

There are also many benefits to the new program. For example, the defendant bears nearly all of the costs of incarceration including the costs associated with tether.

Also, in this very tough economy fewer non-violent offenders will lose their jobs because there is almost no delay between the date of sentencing and the date the offender is actually back at work. With the old program this delay was as much as five to seven days. Now the delay is as short as one to two days tops. There is also no limit to the number of offenders that can be on the program at any one time.

Furthermore, violent offenders are not eligible to participate, and public safety will be further enhanced through random drug and alcohol testing conducted through the Sheriff’s Office Results Program.

As a consequence of these changes and improvements, offenders will be better able to pay back their fines and costs, including restitution and costs of prosecution. Additional savings may come in more defendants deciding to forgo trial in favor of a plea of guilty. When a defendant realizes that they will be able to keep their job and even stay at home during non-work hours the incentive to go to trial is significantly lessened. This will undoubtedly save the costs associated with trial for those individuals who know they are guilty but could not plead guilty for fear of losing their job, their car or even their home.

For all of these reasons, nearly all of the judges have been very receptive to and even excited about the new program. According to Undersheriff McCabe only a small minority have expressed reservations. He expects many of these reservations to diminish once the new program becomes better know and its benefits more fully realized by the participants.

Beginning in January 2010 the “old” non-virtual work release program will be phased out. Inmates sentenced to the old work release will be required to complete their sentence. Their sentencing judge will be contacted for approval to convert the sentence to a tether custody Work Release. If granted, the inmate will be placed out on tether. If not, the inmate will complete their sentence in the Work Release facility. However, there will be an effective date set whereby after that date all Work Release sentences will be a tether sentence. Only inmates finishing up an old Work Release sentence that a judge did not approve tether will be housed in the Work Release Facility.

What are they Smoking?

2010-01-14T07:14:00.002-05:00

This post is a re-print from "The Michigan Lawyer" which is the official blog of Michigan Lawyers Weekly:

What are they smoking? That’s what Detroit-based Cannabis Counsel lawyer Matthew Abel is asking of the Michigan Senate Judiciary Committee, who is meeting next week to discuss a package of bills which would amend the public health code so that medical marijuana must be dispensed by pharmacists, and to classify medical marijuana as a schedule 2 controlled substance.

“It seems that if the legislature ever passed these bills, they would be in conflict with the medical marijuana statute,” Abel said. “So they’d need a 3/4 vote to supercede the law, and you know that they can’t even get 3/4 of the legislature to agree on lunch, let alone this.”

Southfield-based lawyer Michael Komorn, who also serves as the treasurer for the Michigan Medical Marijuana Association, said the bills are similar to bills introduced last year; last year, the bills which also would have allowed for 10 marijuana growing facilities to be affiliated with a pharmacy, got no traction.

This year’s incarnation of the bills would essentially make all production of medical marijuana illegal, though use would still be protected by law, Komorn said.

“It’s like the stamp act, arcane and without any understanding of what really is going on with patient needs,” Komorn said. “Bottom line, this is an attempt ot repeal the Michigan medical marijuana act.”

It’s impossible, Abel said, to require dispensing of medical marijuana through pharmacies.

“They don’t have a supply, and no way to get it. There’s just no way for them to do it,” Abel said.

Still, he’s resting easy with the idea that the bills are going nowhere, and are really more about grandstanding for political popularity than they are about the Michigan medical marijuana law.

The committee will take up the bills Jan. 19, 1 p.m., in room 210 in the Farnum building in Lansing.
__________________________

Law Blogger Note: The Michigan Medical Marijuana Act is the subject of a post in the electronic criminal lawyer blog.

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Lab Technicians Required to Provide In-Court Testimony, For Now

2009-12-20T11:21:00.006-05:00

Last year, I prepared and argued a series of appeals for a man convicted in Washtenaw County of sexual assualts near Eastern Michigan University. He received life sentences in six separate cases.

The primary issue in each case was identification. Due to the way the victims were raped, they never saw their attacker's face. Condoms and other precautions minimized physical evidence left at the respective crime scenes.

In one of the cases, however, Washtenaw County Sheriff detectives were able to recover a small semen sample. The Michigan State Police crime lab contracted with an out-of-state forensic laboratory that produced a report concluding the sample matched the defendant's DNA.

At defendant's trial, the Washtenaw County Prosecutor called the MSP lab tech and the out-of-state lab tech to testify about the matching DNA. On appeal, I argued that defendant's Sixth Amendment right to confront witnesses was violated because the out-of-state lab tech relied on procedures and internal reports created from other technicians that were not present in court to testify.

Defendant's convictions were affirmed by the Michigan Court of Appeals and his petitions for writs of certiorari to the Michigan Supreme Court were denied last summer. Around the same time, however, the United States Supreme Court decided Melendez-Diaz -v- Massachusetts.

In the Melendez-Diaz case, Suffolk County, Massachusetts law enforcement utilized lab "affidavits" concluding that a seized substance was cocaine. The Supreme Court held that such an affidavit was insufficient to convict and that the lab technician must testify in open court.

In the few short months since the Melendez decision, law enforcement and prosecutors have raised an outcry about the increased costs and difficult logistics associated with producing the in-court testimony of lab techs. The defense bar, on the other hand, has hailed the decision as a victory for individual constitutional rights.

In a rare move, the U.S. Supreme Court has scheduled oral arguments for January 2010 in Briscoe -v- Virginia; a case raising the same issue the high court so recently decided in Melendez-Diaz. The New York Times has speculated that Briscoe will not overturn but rather, simply explain and clarify the Court's earlier ruling on lab technicians. One such procedure would be to make lab technicians available for cross-examination rather than requiring their testimony in the prosecutor's case-in-chief.

At this date, my client is left with only a series of federal court habeas corpus petitions based on the Sixth Amendment. Although his state-court remedies have been exhausted, the decisions of the United States Supreme Court, discussed above, will have a significant impact on his habeas petitions soon to be pending in federal court.

The slightly increased cost to the state of securing the in-court testimony of all the lab techs that worked on his DNA sample is a small price to pay for our collective constitutional liberties.

The goal of a criminal defense at trial is to force the government to prove the elements of their case. The goal of all criminal appellate representation is to ensure that the defendant's trial and sentencing were fair. Without these safeguards, our Sixth Amendment right to counsel is meaningless.

info@clarkstonlegal.com

www.clarkstonlegal.com

Judges Cannot "Friend" Lawyers on Social Media Sites Says Florida Supreme Court

2009-12-14T23:48:00.001-05:00

A few of my Facebook friends are judges. They've taken a low profile on the news feed. Will Michigan's Judicial Tenure Commission, formed in 1968 via constitutional amendment, seek to outlaw such social network connections like the State of Florida?

In Florida, the Supreme Court's Judicial Ethics Advisory Committee issued a 11/17/2009 decision, holding that judges may not connect with attorneys on Facebook, or similar social networking media. The Committee's decision is based on a Florida's judicial canon prohibiting the appearance that a lawyer, or anyone else, is in a special position to influence the judge.

Floridian judges, however, remain free to post comments to their non-lawyer "friends", and can develop "fan pages" to help with their reelection campaigns. Only the attorney-judge connection is now taboo in Florida.
The Ethics Advisory Committee stated that, "judges cannot isolate themselves entirely from the real world and cannot be expected to avoid all friendships outside of their judicial responsibilities, some restrictions upon a judge’s conduct are inherent in the office."

Ethics are catching-up slowly with attorneys and judges in the web 2.0 world. Some states, like Louisiana, New York, and now Florida, have taken a restrictive view of lawyer's and judge's permissible activities on such sites.

Linked-In, Twitter, and Facebook remain available to our judges. You can expect Michigan's never shy Judicial Tenure Commission to address the situation as soon as the right case rolls around. Shouldn't be too long... Stay tuned.

info@clarkstonlegal.com

www.clarkstonlegal.com

Second Amendment May Gain Some Ground

2009-12-05T12:50:00.002-05:00

Nearly a decade post-9/11, the forgotten amendment of the U.S. Constitution, the Second Amendment's right to bear arms, may gain some ground here at the beginning of the 21st Century. Several state attempts to erode this right have been subjected to successful constitutional challenges.

The United States Court of Appeals for the District of Columbia, in Robert Ord -v- District of Columbia, reversed a trial court's dismissal of one such gun owner's challenge, remanding the case back to the lower court for further proceedings.

Robert Ord, an licensed investigator, also licensed to carry a weapon in Virginia, will now be able to develop his case; a case that asserts that the mere threat of prosecution in nearby District of Columbia, where he frequently works, constitutes damages. One interesting aspect of this case is that Ord was never arrested, nor were his weapons seized. He claims the objectionable government action was the issuance of a warrant; a warrant Ord claims was obtained by the police in bad faith.

This spring (March 2010), the United States Supreme Court will hear oral argument on a gun-ordinance case from Illinois, McDonald -v- Chicago. Michigan's Attorney General recently filed an amicus brief in the case. In the Chicago gun case, the issue for determination by the Supreme Court is whether the Second Amendment is incorporated (thus applicable) to the states through the Fourteenth Amendment's Due Process clause such that Chicago's gun-ordinance banning guns in private homes is unconstitutional.

A good primer on this age-old issue can be found on the official blog of the U.S. Supreme Court; known as SCOTUS. The high court's blog post surveys the historical context of the Second Amendment with a focus on the modern ordinances and state laws that attempt to limit gun possession due to it's correlation with violent crime.

The high-court petitioner(s) in these gun cases are citizens claiming a constitutionally-protected right to bear arms. They assert that the state cannot unreasonably restrict this right with its laws or ordinances.

These cases pit the power of the government against the fundamental liberty interests of the individual. The tension between the two continues to be the glue of our Democracy, just as it was in colonial times when these concepts were debated in Philadelphia, Boston and Washington.

In the decade since 9/11, various powers of the federal government have expanded under President Bush. At the state level, however, the individual right to bear arms may hold ground. The McDonald and the Ord cases are crucial milestones for the highly revered Second Amendment.

Supreme Court to Decide Juvenile Lifer Cases

2009-11-12T12:08:00.002-05:00

On Monday, the U.S. Supreme Court heard oral arguments in two consolidated cases from Florida involving life sentences for juvenile offenders: Graham v Florida and Sullivan v Florida. What makes these cases interesting, and thus important, is that the victims in the cases were not killed, yet the offenders received life sentences without parole. A published decision will follow soon.

Here in Michigan, pursuant to a network of statutes, a juvenile may be tried as an adult. Michigan also has a variety of offenses which call for life sentences. There are no juvenile offenders, however, serving life sentences for non-leathal offenses in Michigan.

The question before the Supreme Court this week was whether a life sentence should be flat-out banned for non-lethal juvenile offenders. Chief Justice Roberts seemed to be lobbying his fellow-justices to provide the juvenile offender the opportunity to emphasize his "youth" under an 8th Amendment "cruel and unusual punishment" analysis. Roberts' approach was an alternative to the outright ban sought by the attorneys for the youths. He seemed to favor a "proportionality" analysis.

Full analysis of Justice Roberts' approach to the argument in this case is found on the SCOTUS blog.

There are about 100 such youth sitting in prisons on life sentences for non-lethal convictions; most of them in Florida, which has approximately three quarters. A recent NYT article suggests that tourism in the state may have been a factor in so many harsh sentences handed down to youths committing serious crimes in Florida.

Professional court watchers sensed sympathy for the youthful convicts from some of the Justices. A few seemed to favor a constitutional prohibition of such sentences. The rationale for the ban is cruel and unusual punishment. A secondary argument is that such youthful offenders could benefit from habilitation.

Other (more conservative) Justices seemed less sympathetic, wondering where the age line should be drawn.

Without a clear majority on this issue, our prediction is that the court will decide the case down ideological lines, resulting in a plurality decision (i.e. no clear majority in the opinion, with several justices writing separately from their colleagues).

The case also calls into question the age-old tension between states' rights to define their own criminal laws in accord with local mores and sentiments, and the constitutionally guaranteed rights of all citizens, regardless of the criminal code of the state in which they are convicted.

We will await the high court's decision and keep you posted on the result along with some of the other cases we are following. In the meantime, if a juvenile member of your family has been accused of a serious crime, contact our firm to discuss your options.

info@clarkstonlegal.com
http://www.clarkstonlegal.com/

Two Day Jury Trial in Oakland Circuit Results in Not Guilty Verdict

2009-11-12T07:45:00.002-05:00

On Monday and Tuesday of this week, I was in a jury trial in Oakland County Circuit Court before Judge John McDonald. I think he's a great judge, mostly because I've never lost a trial in his courtroom. This trial made four straight.

The odds, as usual, were stacked against acquittal. The principal charge was assault with intent to do great bodily harm (less than murder), with a second count: commission of a felony with a firearm; a charge that carries a mandatory two-year minimum prison sentence upon conviction.

My client was a woman with no criminal record. The alleged victim, however, had done 15-years in prison for armed robbery. After an evening of drinking and socializing, the two (in an on-again off-again relationship) retreated to my client's home. An argument boiled over and two shots were fired from a revolver. One shot hit the victim in the foot.

At trial, my client took the stand and testified she shot the weapon toward the "victim" in self defense. The jury believed her, and she avoided the two-year mandatory prison sentence.

One of the keys to the acquittal was an effective cross-examination of the so-called victim. He was made to look foolish, and like a bully, admitting to contact with my client.

The case illustrates how the plea policy of the Oakland County Prosecutor's office can sometimes be quite flawed. In this case, the client was most concerned about doing two years in prison. She could appreciate the seriousness of the gun shots, and the significant injury one of the bullets did to her former boyfriend. While willing to do some jail time on an assault guilty plea, she was not about to sign-up for two years. But that's exactly what the prosecutor wanted her to do; no plea offer to drop the felony firearm charge.

So we rolled the bones and went to trial. In this case, it was well worth the effort. This client was well served as she saved two years of her life.

If you or a loved one face serious felony charges, contact our firm in order to assess your options. We will advance your interests in dealing with the prosecutor and, if necessary, take the matter to trial.

info@clarkstonlegal.com
www.clarkstonlegal.com

MIP Probation Violation Cannot Result in Jail

2009-10-10T21:39:00.002-04:00

This post was originally uploaded to the electronic criminal lawyer in February 2009. It has regained some relevance given the perennial campus law enforcement sweeps for underaged drinking. For your re-consideration:

Recent discussions between criminal defense attorneys comparing notes about district court judges in Oakland and Genesse counties have revealed that many of their MIP clients are subjected to jail sentences when they subsequently plead guilty to a violation of probation. The law prohibits any jail sentence for a minor that pleads guilty to possession of alcohol. In recent years, some district court judges have gotten around this prohibition by citing the defendant on a "contempt of court" charge, a misdemeanor that carries up to 93-days in jail. Other judges have simply ignored the law, tossing the probation violators in jail despite the protestations of their attorneys.

As the practice has spread among some judges in both Oakland and Genesse counties, members of the Criminal Defense Association of Michigan have began to organize a coordinated defense to the wrongful jailings.

If you or your family member is faced with a violation of probation charge and the underlying conviction was an MIP, contact a criminal defense lawyer before going to court. You could very possibly save you or your family member some jail time.

NPR Critiques Michigan's Court-Appointed Defense Lawyers

2009-09-07T17:03:00.005-04:00

National Public Radio recently ran a segment on its "All Things Considered" program which was highly critical of the way lawyers are appointed by county circuit courts to defend the indigent accused here in Michigan. Click here to link to the full story.

The piece attracted dozens of comments. NPR focused on one of the "bad apples"; Attorney Bob Slamenka from Detroit. Slamenka just never seems to have sufficient time, energy or resources to pull-off competent representation of his court-appointed felony clients. In addition to a series of grievances, Slamenka is now notorious for his appellate representation of wrongfully-convicted sex offender, Eddie Lloyd. Attorney Slamenk's appeal failed, as do the overwhelming majority of all appeals from criminal convictions in Michigan. This is nothing new. The problem arose, however, when Lloyd filed a grievance against Slamenka prompting the following response from the attorney:

"This is a sick individual who raped, kidnapped and strangled a young woman on her way to school. His claim of my wrongdoing is frivolous, just as is his existence. Both should be terminated."

Ultimately, Lloyd was proved innocent by DNA evidence but died just two years after his release from 17-years in prison. Consequently, Slamenka's ill-worded grievance rejoinder is now "exhibit a" for the what is wrong with the court-appointed criminal defense system.

All attorneys represent criminal clients they suspect are guilty. When the client loses his case, the attorney is often the first to blame. The criminal defense attorney functions as a "constitutional warrior", forcing the government to prove its case, even when the odds are against success (for the accused). If the criminal appellate attorney does his/her job properly, a convicted felon benefits from a well-researched and well-reasoned brief from which his conviction can be tested in the appellate courts. This principle is fundamental to our system of criminal justice and separation of powers: everyone gets the opportunity to appeal a conviction.

Unfortunately, Michigan does rank near the bottom of all states in the category of public resources devoted to indigent criminal defense. In this era of fiscal short-falls, this will not change soon. Roster attorneys with the Michigan Assigned Appellate Counsel System receive as many as one assignment each week from the Wayne Circuit Court. These attorneys are paid about twenty five cents on the dollar for what their services are worth in the world of privately retained-counsel. This type of public legal service is essential if our constitutional principles are to be sustained in the 21st Century.

It sure would be nice if cutting edge defense tools, such as DNA analysis, and the use of court-appointed experts, were available to exonerate the truly innocent. Yet, unless the court-appointed attorney is focused on his game, all the funding in the world won't save the client.

The Michigan Medical Marihuana Act

2009-09-07T12:42:00.002-04:00

Last November, Michiganders legalized the use of marihuana for medicinal purposes. The resulting legislation, known as the Michigan Medical Marihuana Act (MMA), has been widely criticized for being vague and confusing. This blog post summarizes the act and addresses some of the questions now arising in communities with licensed users and care providers.

Shortly after last fall's election, the Michigan Legislature passed the MMA on December 4, 2008, making Michigan the 13th state to allow the cultivation and possession of marihuana for medical purposes. The Act cited a series of findings related to the beneficial uses of marihuana in treating nausea, pain and other effects from a variety of debilitating medical conditions. The Act also notes that according to the FBI, 99% of all marihuana possession arrests nationwide are done pursuant to state, rather than federal law. It is important to note that possession of the drug remains illegal under federal law.

The MMA defines a "debilitating medical condition" as cancer, glaucoma, HIV, hepatitis C, and other diseases along with other chronic afflictions which cause pain and nausea. A "primary caregiver" is defined as, "a person who is at least 21 years old and who has agreed to assist with a patient's medical use of marihuana and who has never been convicted of a felony involving illegal drugs." A "qualifying patient" is "a person who has been diagnosed by a physician as having a debilitating medical condition."

The basic mechanics of the Act provide that qualifying patients and primary care providers (marihuana growers) must possess a "registry identification card", issued by the Department of Community Health. Cardholders are not subject to arrest or prosecution for marihuana possession/distribution provided the patient keeps less than 2.5 ounces of smokeable pot. Care providers are allowed to maintain up to 12 plants for each qualified patient; stems, seeds and unusable roots do not count toward the plant limitation.

Physicians also have immunity from prosecution relative to their certification of the patient's need for the drug, so long as they conduct an assessment of the patient's medical history. A legitimate physician-patient relationship is required.

Since the U.S. Supreme Court decided the case of Conant vs Walters in 2003, physicians have been able to recommend a patient's use of marihuana (but cannot prescribe pot by placing the recommendation on a prescription form). Doctors can also make notes regarding their recommendations in the patient's chart and can testify on behalf of a patient's medical use of marihuana in a court of law. The Supreme Court's Conant decision paved the way for passage of the MMA.

Primary care providers may receive compensation for their marihuana. Selling marihuana paraphernalia also is allowed under the MMA, and such paraphernalia cannot be seized.

Persons merely present during the use of marihuana for medical purposes likewise are not subject to arrest.

Sound too good to be true? When marihuana is distributed to persons other than qualifying patients, the registration card is revoked, and the provider is subject to a 2-year felony. Also, driving while under the influence of marihuana remains illegal, as does smoking in public. Use or possession of pot on school premises or on school buses remains prohibited. And yes, it remains illegal to smoke in a jail or a penitentiary, regardless of your medical condition.

The Act sets a short timetable (120-days) for the Department of Community Health to promulgate regulations for the administration of the possession/distribution credential. The delay of these regulations is giving way to some confusion among law enforcement and the public as to the parameters of legal vis a vie illegal pot possession.

For example, a recent case out of Madison Heights involved a couple arrested in March during a drug-raid. The couple had applied for their certification cards prior to their arrest and received the cards a month after their arrest. In dismissing the case brought against the two defendants, 43rd District Judge Robert Turner characterized the MMA as, "the worst piece of legislation I've seen in my life", according to the Detroit News. Judge Turner's dismissal was appealed by the Oakland County Prosecutor where it is currently pending before Oakland Circuit Judge Lisa Gorcyca.

If you have been charged with use, possession or distribution of marihuana, or are interested in obtaining an identification card, contact our office to discuss your options.

Oakland Sheriff's Marine Division Downsizing

2009-08-16T09:24:00.004-04:00

You had to see this coming. In this era of government funding shortfalls, and given Brooks Patterson's ever watchful budgetary eye, the Oakland County Sheriff's Marine Division takes a funding hit.

Watercraft enthusiasts using Oakland County's many navigable lakes have all seen the Sheriff's white runabouts (with blue flashing stem-light) patrolling the county waterways on busy weekends and holidays. These units have probably kept a dampener on serious drunk driving by watercraft operators.

Such patrols will be eliminated after this season, according to the Sheriff's Department. This cutback does not mean the end of the Marine Division. But now, townships and municipalities will have to contract with the Sheriff if their waterway(s) are to be patrolled by the Marine Division.

The Macomb and Wayne County Sheriff Marine Divisions have international waterways to patrol as part of their mission. They both work with the U.S. Coast Guard and now, Homeland Security. In Oakland County, however, the primary focus of the Sheriff's Marine Division is safe boating. That goal has been achieved by enforcing the drunk driving laws on the lakes.

One of the challenges to this enforcement is the patchwork of local ordinances governing alcohol on the various lakes. Some Oakland County lakes, like Orchard Lake, prohibit alcohol. Many others, however, not only allow alcohol, the boat driver can have a beverage in his lap while operating the vessel.

Now, with the removal of most Oakland County Marine Division patrols, our waterways may become more dangerous, as some boaters (by nature, out there to have a good time) elect to imbibe more alcohol.

If you've recently been ticketed by one of the Oakland County Sheriff's Marine patrols, and would like to discuss your options, give us a call.

Driving While Distracted by Cell Phone

2009-07-27T09:05:00.009-04:00

Has the time come for drivers to give-up cell phones while operating their vehicles? In Michigan, more municipalities and jurisdictions are saying, "maybe". The cell phone lobby, however, says, "not yet", and continues to block state-wide cell phone bans.

Despite the efficiencies achieved by the now-ubiquitous cell phone, Royal Oak, Southfield and other jurisdictions have considered outlawing this form of "multitasking". Many other Oakland County municipalities have enacted "driving while distracted" provisions which enhance the fines assessed when a cell phone factors into a traffic violation.

Many would say, "it's about time." Even the cell phone lobby may be coming around. A recent Sunday New York Times front-page article describes how the Cellular Telecommunications and Internet Association recently changed its position opposing cell phone bans, to a more "neutral" stance. The Sunday Times article, which summarizes the scientific data compiled about distracted driving, can be found at the following link: http://tinyurl.com/mq6r4x

Although mounting statistics compare cell phone driving to drunk driving, eight states have enacted legislation that prevent municipalities from passing ordinances prohibiting hand-held cell phone use. Other states like California, New York and New Jersey, have banned hand-held devices while driving. Royal Oak and Southfield may be next.

If you have suffered injuries from a driver distracted by a cell phone, or have had a traffic citation enhanced because of it, contact us to discuss your options.

Oakland Prosecutor Quits Sobriety Courts and Rejects "Impaired" Pleas

2009-05-17T00:02:00.016-04:00

Jessica Cooper has demonstrated a top-down command structure since taking over the prosecutor's office in January. One of the commands from the top is that first-time drunk drivers are no longer offered the customary plea reduction to operating while "impaired". This new policy may result in unnecessary jury trials.

Having an Operating While Intoxicated (OWI) charge reduced to "impaired" provides two advantages: less stringent mandatory driver's license sanctions ordered through the Secretary of State (60-90 day restricted license compared to a 6-month hard suspension), and a lower driver responsibility fee ($500 for two consecutive years, compared to $1000 each year). Other fines, costs and attorney fees are also higher in the OWI context.

Even for first-time offenders, a reduction to impaired is not always offered in cases where the blood-alcohol level (BAC) far exceeds the legal limit. With the proscutor's new policy, however, there are no apparent exceptions, even where the BAC is relatively low.

The new policy has been informally acknowledged by numerous Assistant Prosecuting Attorneys over the past several weeks. Defense attorneys are now considering jury trials, where a simple plea to impaired would have resolved the case.

For repeat offenders, alcohol abuse treatment is mandatory and other punishments are increased. Sobriety or "drug courts" have sprang-up in the past several years to address the problem.

In another important policy development from Cooper's office, the Oakland County Prosecutor will no longer participate in these sobriety courts, now spread throughout Oakland County. A sobriety court emphasizes drug and alcohol treatment and rehabilitation over incarceration. Such courts utilize a team approach to manage the intensive probation process. Obviously, the "team" includes the prosecuting attorney, along with a therapist, probation officer, defense attorney, and judge.

The statistics emerging from these courts have forged a consensus among professionals throughout Michigan, and the nation; sobriety-style courts are effective in dealing with drug and alcohol abuse crimes. The Oakland County Prosecutor's office should be participating in society's effort to address irresponsible addictions. The end-result is safer public roadways.

Michigan Senate Seeks to Abolish Adultery as Felony

2009-04-19T20:15:00.004-04:00

State Senator Ron Jelinek (R - Berrien County) has introduced a bill in Lansing to abolish adultery as a crime. The bill, which has a companion in the Michigan House, has been referred to the Senate Judiciary Committee. The bill, expected to be presented for the Governor's signature sometime during this legislative session, could become law in 2009.

The Michigan Penal Code has long-contained a chapter on adultery, defined as, "the sexual intercourse of 2 persons, either of whom is married to a third person." The scope of the criminal conduct includes divorced but cohabiting persons. The statute requires the cuckolded spouse to swear-in as the complaining witness and has a brief statute of limitation; one year.

Adultery was codified into the penal code back in 1931. The caselaw on this "consensual" crime goes back to 1884, in a case coming out of Senator Jelinek's own Berrien County. The case, People v Hendrickson, stands for the evidentiary proposition that the testimony of the un-married participant in an adulterous union can supply the requisite evidence to support a conviction.

In the here and now of 2009, Michigan's family courts have adhered to the "no-fault" provisions of the divorce statutes. Adultery is now a matter of private morals, with family court judges free to exercise discretion regarding how much weight to put on allegations of adultery and their attendant consequences in matters of child custody and property division.

Senator Jelinek's proposed legislation seeks to align the penal code with the unfortunate reality of post-modern society. Immoral, but all to common, adultery has always posed the biggest threat to the traditional family unit. Adultery is a rarely charged felony, however, thus, it's persistent inclusion within the penal code (particularly the anti-cohabitation provision) bloats the Michigan Compiled Laws with anachronistic provisions. Transgressions are best addressed within the discretion of the family courts.

Oakland Circuit's Most Prolific Jurist Retires After 32-years on the Bench

2009-03-10T09:48:00.017-04:00

The official word is "retirement". Tell that to his law clerk, seen recently busting down the corridor of the Oakland Circuit Courthouse at a brisk clip, no time to talk; or to the attorneys of record on an aging civil case, hanging around the docket, but now re-assigned to the new "visiting judge".

As long-time circuit judge Steve Andrews' retirement loomed toward the end of last year, many wondered how he would fare in retirement. His outstanding research attorney already had been reassigned to another judge, as have his courtroom and chambers, but his presence remains a strong force in the Oakland Circuit Court.

Andrews, along with fellow-retiree Fred Mester, are the newest "visiting" judges at the Oakland Circuit Court. Visiting judgeships are common for judges forced to leave the bench, sometimes prematurely, via the age-limit statute. They are often assigned to the court's unruly PPO dockett.

A visiting judgeship, however, means something different to Judge Andrews. In his first month on the visiting judge docket, he knocked-out six jury trials, including a medical malpractice trial and a complex contract matter; no other judge completed more than two. Thus, history will record Steve Andrews as Oakland Circuit's most prolific jurist for the sheer number of completed jury trials. Using this criteria to measure his public service, Judge Andrews has no peer.

In the future, some judge may eventually unseat Andrews as the trial champion of Oakland County, but they would be well advised to take the bench at a very young age. In the meantime, if you are an attorney with an old case on the Oakland Circuit dockett, you might just want to want to dust off your file and get it ready for trial in case it gets assigned to the "visiting" judge.

Fatal Hit and Run Client is in the News

2009-02-23T06:01:00.002-05:00

Our firm was recently retained by a woman charged with leaving the scene of an injury accident resulting in death, a five-year felony. The Oakland County case has resulted in media attention due to the surrounding circumstances. Timothy P. Flynn is handling the matter for the firm.

Links to some of the articles published about the case are attached below:

Free Press
http://www.freep.com/apps/pbcs.dll/article?AID=200990211052

Oakland Press
http://www.theoaklandpress.com/articles/2009/02/11/news/local_news/doc4992a22f6bbc8168625563.txt

http://www.theoaklandpress.com/articles/2009/02/11/news/local_news/doc4992a22f6bbc8168625563.txt

Spinal Column

http://www.spinalcolumnonline.com/Articles-i-2009-03-04-68921.113117_Police_investigating_second_hitandrun_motorist.html

Our firm is skilled in managing your options when things heat-up, and you or a member of your family faces the white-hot spotlight of unwanted media attention. Contact us to discuss your options.

Outstanding Macomb and Oakland County Plea Deals

2009-02-23T05:14:00.002-05:00

Over the past six-months, our firm has achieved notable plea agreements with the Prosecutors in Macomb and Oakland Counties in three major felony cases. As a result, our clients were well served, their freedoms were preserved, and their families were very pleased with our results when it really counted.

In a Macomb County case, criminal defense attorney, Timothy P. Flynn, negotiated a reduction in charges from kidnapping and attempted murder, to the lesser charge of felonious assault. Our client admitted to assaulting his long-time friend with a butcher knife during an argument between the two. The victim was held at bay in the basement of the client's home with the knife for over an hour, bleeding from several deep cuts. In that case, the plea agreement featured a county jail guarantee, avoiding a certain prison sentence.

In another recent case from Macomb, our client had a prior felony conviction and was charged with carrying a concealed weapon, felon in possession of a weapon, and reckless discharge of a firearm. He fired shots into the air at his home when a group of aimless local youth, whom the client suspected of causing damage to his home, gathered at the end of the client's driveway.

The felon in possession charge was of particular concern as it carries a mandatory two-year prison sentence which must be served consecutively to incarceration on the other counts. This charge was dropped and the client was guaranteed a sentence of probation, enabling him to keep his job.

Even in Oakland County, a notoriously difficult venue to obtain plea deals, one of the firm's clients was recently able to reduce a felonious assault charge to misdemeanor trespassing. The case hinged on the fact that, while preparing the case for trial, we discovered both prosecution witnesses had been recently convicted in another felony case. The Oakland County Prosecutor realized their case had been seriously weakened, and offered a good plea deal that made a lot of common sense given the facts of the case.

This particular client was very concerned that a felony conviction would affect his parenting rights, as he had a son from his union with the complaining witness and one-time fiancee. He is now pursuing physical custody of his son, without the baggage a felony conviction.

Violation of Probation on an MIP Conviction should not result in Jailtime

2009-02-22T15:52:00.001-05:00

Recent discussions between criminal defense attorneys comparing notes about district court judges in Oakland and Genesse counties have revealed that many of their MIP clients are subjected to jail sentences when they subsequently plead guilty to a violation of probation. The law prohibits any jail sentence for a minor that pleads guilty to possession of alcohol. In recent years, some district court judges have gotten around this prohibition by citing the defendant on a "contempt of court" charge, a misdemeanor that carries up to 93-days in jail. Other judges have simply ignored the law, tossing the probation violators in jail despite the protestations of their attorneys.

As the practice has spread among some judges in both Oakland and Genesse counties, members of the Criminal Defense Association of Michigan have began to organize a coordinated defense to the wrongful jailings.

If you or your family member is faced with a violation of probation charge and the underlying conviction was an MIP, contact a criminal defense lawyer before going to court. You could very possibly save you or your family member some jail time.