Michigan Supreme Court Permits Statutory 'Prior Bad Acts' in Sexual Assault Cases

This post is for the criminal defense lawyers among our readership.  The subject is what amounts to a seminal decision involving the evidentiary rules applicable to sexual assault cases.

In those cases, the legislature passed a specialized statute broadening the type of "prior bad acts" that can be admitted in a sexual assault trial.  [Note: usually, the evidence must focus on the actual alleged assault, and not on what the accused may or may not have done in the past.]  The general evidentiary rule, MRE 404(b), has a series of safeguards that must be met prior to introducing "prior bad acts" collateral to the charged conduct.

For example, the prosecution cannot simply introduce the evidence in order to demonstrate to a jury that the defendant, in the charged case, was acting within his propensity.  Rather, the collateral evidence must be limited to showing that the accused was acting in accord to a pattern or a plan.  If the events were distinct, most trial court judges would preclude introduction of such evidence.

Even when the judges allowed such evidence, it was introduced with a cautionary instruction to the jury.

Not so with the statute, MCLA 768.27a.  That statute, specially applicable to sexual assault cases, allows evidence of "prior bad acts" that have any relevance or bearing on the charged offense.  It is much easier for the prosecutor to introduce such evidence in an sexual assault trial.

In the People v Watkins case, the Michigan Supreme Court, recognizing the irresolvable conflict between the evidentiary rule and the statute, held that the statute controls.  Now, prosecutors can introduce evidence of such prior bad acts, shifting the focus of what actually happened in the charged offense, to what happened in other situations, under other circumstances.

One of the problems with the evidence in the companion case to Watkins was that the evidence being introduced was 20-years old.  The trial court had a problem with that, finding the evidence more prejudicial than probative under MRE 403.  This too, was reversed by the Supreme Court, which held that the trial courts now have to focus on the probative value of the evidence, not on its prejudicial nature.  Essentially, this throws the balance test long-utilized by trial courts, out the window.

The dissent in this case [Justice Marilyn Kelly] was troubled that the Legislature seemed to be usurping powers which Michigan's constitution bestowed on the judiciary: i.e. the power to rule on the admissibility of evidence at a trial.  Justice Kelly also called out the majority on the intellectual honesty of the majority opinion in addressing MRE 403, and on its largely unanalyzed conclusion that the trial court committed an "abuse of discretion" in precluding the evidence in the Pullen case.

Sexual assault cases, already tough to defend, have now been made much more difficult with this decision.  If defense counsel is lucky, the case will not involve things that her client did years before; just a straightforward presentation of evidence and cross examination on the charged offense.

www.clarkstonlegal.com

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Burney's Illustrated Guide to Criminal Intent

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.

www.waterfordlegal.com

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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

What To Do If You Are Accused of a Crime

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.

www.warterfordlegal.com

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Email Snooping by Spouse Results in Felony Criminal Charges

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.

www.clarkstonlegal.com

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Bloomfield Hills' Medical Marijuana Ordinance Challenged by Lawsuit

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.

info@clarkstonlegal.com

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Comic Book Explains Arrests and Lawyers to Teenage Children

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.

www.clarkstonlegal.com

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Five out of Six Trial Victories; Not Bad

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.

www.clarkstonlegal.com

info@clarkstonlegal.com