Small Pot Transfers Between Patients Immune Under Medical Marijuana Act

In a significant decision further deepening Michigan's medical marijuana jurisprudence, the Michigan Court of Appeals, in the case of People v Tony Green, held that non-compensated marijuana transfers from one registered medical marijuana patient to another are immune from prosecution under section 4 of the Medical Marijuana Act (MMMA).

This case is significant for two reasons.  First, the MMMA does not provide for a pot distribution scheme allowing care providers to sell their wares; the Act is quite vague on the subject of transfer and distribution of pot.  In reading the Act, it appears that the only way to legally transfer marijuana from care provider to patient [and now, thanks to this decision, from patient to patient] is the old-fashioned "hippy" way of bartering and gifting; you cannot do cash transactions.

Second, the Tony Green case is significant because it is a published decision, making it binding on trial courts throughout Michigan.

The undisputed facts of the case have Tony Green making a small, uncompensated marijuana transfer to another patient.  The amount of marijuana involved was less than the 2.5 ounce limit set forth in the MMMA, and the person Green was giving the marijuana to was also a certified patient under the Act.  [Technically, the person Green gave the pot to had not yet received his registration card but had submitted his application more than 20-days prior to receiving the medical marijuana donation from Green.]

The Court of Appeals held that such a non-compensated transfer between two marijuana patients is a "medical use" of marijuana expressly authorized by the MMMA.  Thus, such transfers are immune from prosecution.

Folks, you don't need us here at the Law Blogger to tell you that such "hippy" transfers are not the norm in the medical marijuana industry.  Pot farmers are not growing, er, medical marijuana as a hobby; they are growing pot to make money.

On this note, the Michigan Supreme Court heard oral argument last fall on a case presenting the issue of whether the MMMA provides immunity for cash sales of marijuana.  So, we shall have our answer soon.

Stay tuned...

www.clarkstonlegal.com
info@clarkstonlegal.com

Michigan Supreme Court Selects [Another] Medical Marijuana Case

The criminal defense bar saw all this litigation coming from a distance.  At this blog, we knew that the Michigan Medical Marijuana Act would be challenged, diced, and spliced for years after its passage in 2008. 

Well, no disappointment on that front, as the Michigan Supreme Court has selected yet another medical marijuana case for briefing and argument during their term which will commence next week.  This case will follow the Supreme Court's seminal Kolanek decision and nearly a dozen opinions from the intermediate appellate court issued over the past four years.

This time, the action arises from Kent County and the issue involves the collective farming and distribution scheme of a certified "care provider".  The case, People v Bylsma, was decided by the Michigan Court of Appeals in a published decision one year ago.

The care provider was the subject of a raid conducted by the Grand Rapids PD which yeilded more than 88 plants from a grow operation housed in a commercial rental facility.  Problem: this care provider only had two certified "patients"; a person is allowed up to five under the Act.  You may possess up to 12 plants for each patient.

In the trial court, Mr. Bylsma asserted the immunity afforded by the medical marijuana act, and moved to dismiss the case.  He also argued that the Act does not prevent multiple care providers from collaborating their grow operations.  The lower court denied the motion to dismiss, and Bylsma's appeal to the Michigan Court of Appeals resulted in that decision being affirmed.

Now, the Michigan Supreme Court will take a look.  Its decision will further develop our growing medical marijuana jurisprudence.

This case presents an opportunity to further address one of the primary tensions that have developed between care providers attempting to distribute medical marijuana, and perhaps turn a profit in doing so, and the law enforcement agencies that have been uncertain about what is legal and what remains illegal.

The Kolanek decision smoothed out the mechanics of the immunity and affirmative defense provisions of the Act.  Prosecutors took a very restrictive view of the latter, while the criminal defense bar argued for a broader application of the defense.

We here at the Law Blogger recently had the opportunity to brief this issue in a case pending before the Court of Appeals.  Both Kolanek and now Bylsma will affect the outcome in our case.

As for Bylsma, let's just sit back and see whether the Supreme Court will interpret the Act in a manner which will allow these pot farmers to make some money.

www.clarkstonlegal.com
info@clarkstonlegal.com

Michigan's Parole Process Explained

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.

http://www.clarkstonlegal.com/

info@clarkstonlegal.com

Guilty Plea Appeals: The Prison Tour

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.

www.waterfordlegal.com

info@waterfordlegal.com

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

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.

www.clarkstonlegal.com

info@clarkstonlegal.com

Retired Wayne Circuit Judge Heading to Trial as an Accused Defendant

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.

http://www.clarkstonlegal.com/

info@clarkstonlegal.com

Felony Child Support Cases Get Review by Michigan Supreme Court

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.

www.clarkstonlegal.com

info@clarkstonlegal.com

Interview with Michigan Supreme Court Justice Maura Corrigan

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

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.

www.clarkstonlegal.com
info@clarkstonlegal.com