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

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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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.

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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.

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