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

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...

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Posted in: criminal attorney Oakland County Michigan,DNA,Eastern Michigan University,habeas corpus,Michigan State Police,Sixth Amendment,Washtenaw County Circuit Court

Judges Cannot "Friend" Lawyers Via Social Media Says Florida Supreme Court

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...

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Posted in: Facebook,Florida Supreme Court,Judicial Ethics Advisory Committee of Florida,Linked In,Michigan Judicial Tenure Commission,Twitter

Washtenaw County Guardianship Spotlights Problematic Surrogate Arrangements

A recent Washtenaw County Probate matter received national attention over the weekend by appearing on the front page of the Sunday NYT, in an "above-the-fold" article by Stephanie Saul.  The guardianship case involved a surrogacy contract between a Kent County couple and the surrogate mother from Ypsilanti.Amy Kehoe and her husband contracted with both egg and sperm donors, then arranged for Laschell Baker to serve as the gestational surrogate.  The Grand Rapids couple located Baker from the surromomsonline web site.  The would-be parents also contracted for services with IVF Michigan, a fertility clinic.Neither the Kehoes nor Ms. Baker had any legally recognized biologic connection to the babies; twins born in July.  The...

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Posted in: adoption,American Bar Association,Amy Kehoe,Assisted Reproductive Technology,Laschell Baker,Nathan Koppel,Stephanie Saul,surrogacy,surrogate,Washtenaw County Probate Court

Congress vs NCAA

As the holidays approach, college football fans once again work up their annual lather over how to end the season, and crown a national champion; or not.Last year was controversial.  This year features two undefeated teams (Boise State and TCU) that have no chance of playing each other under the present Bowl Championship Series.  So now, our Congress is getting involved?This week, Joe Barton, (R-Texas) introduced a bill that would proscribe the promotion, marketing, or advertising of any post-season Division I college football game as a "championship" unless it is the final game of a single-elimination tournament.  Good luck with that.One criticism of the proposed legislation is that it may violate the First Amendment of the...

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Posted in: 1st Amendment,BCS,Congress,constitution,First Amendment,Joe Barton,NCAA

Supreme Court Makes Getting Your Day in Federal Court Much More Difficult

The case of Ashcroft -v- Iqal involved the aftermath of the 9-11 terrorist attacks in 2001.  The case is quickly becoming known, however, for placing significant procedural hurdles in the way of a litigant's access to federal court.Justice Anthony Kennedy, left, wrote the 5-4 opinion for the high court, published last May.The case was brought by federal detainees held, and allegedly abused, in make-shift detention centers in the Bronx shortly following the attacks on the World Trade Center.  Javaid Iqball and other detainees filed suit in the United States District Court in New York City against former U.S. Attorney General John Ashcroft and former FBI Director Robert Mueller.  Unlike most cases, the plaintiffs...

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Posted in: 9-11,John Ashcroft,Justice Anthony Kennedy,Robert Mueller,summary judgment,United States Supreme Court

Second Amendment May Gain Some Ground

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, a 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,...

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Posted in: District of Columbia,McDonald,Robert Ord,Second Amendment,U.S. Court of Appeals,U.S. Supreme Court

U.S. Supreme Court to Decide Juvenile Lifer Cases from Florida

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...

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Posted in: Chief Justice Roberts,Florida,juvenile law,sentencing,U.S. Supreme Court

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

Just before the holiday, I heard the words that a defense attorney craves; "not guilty". I was in a two-day jury trial before Oakland County Circuit Judge John McDonald. I think he's a great judge, mostly because I've never lost a trial in his courtroom. This one made four straight.The odds seemed stacked against acquittal, as usual. The principal charge was assault with intent to do great bodily harm (less than murder). The second count, commission of a felony with a firearm, carried a mandatory two-year minimum prison sentence upon conviction.My client was a middle-aged 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...

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Posted in: assault with intent to do great bodily harm,felony firearm,Judge John McDonald,Oakland Circuit Court,Oakland County Prosecutor

Child Support Reduction & Collection Requests Flood Friend of Court

The pain is inflicted on both sides of the fence in family court cases across the state.  For those paying child support, and for its recipients, the depressed economy in Southeast Michigan is taking a toll.    As a recent article in the Detroit News makes clear, the Friend of the Court in counties accross Michigan are scrambling to field the flood of requests filed to reduce child support, or to enforce an existing support order.  Most of the parents seeking a support reduction are doing so because they've either lost their job or have been handed a pay-cut.Child support in Michigan is calculated using an algorithmic equation known as the Michigan Child Support Formula.  This formula is...

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Posted in: child support enforcement,Detroit News,Michigan Child Support Formula,unemployment

MIP Probation Violation Should Not Result in Jail

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.  Re-posted for your 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 characterized violations as contemptable conduct, a misdemeanor that carries up to 93-days...

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NPR Critiques Michigan's Court-Appointed Defense Lawyers

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...

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Posted in: criminal defense,Eddie Lloyd,National Public Radio,Slamenka

Mich Supreme Court Passes on DNA Paternity & Parenting Case

Every so often, the seven Justices of the Michigan Supreme Court have a golden opportunity to consider momentous legal issues arising from our county family courts.  As recently as last week, the Supreme Court had the chance to decide a crucial case involving the use of DNA to determine the rights of competing Fathers.Suprisingly, however, the high court passed on the Genesse County Family Court's Lipnevicius case, remanding the matter to the Michigan Court of Appeals for a determination of parenting-related legal issues.Months earlier, the Michigan Court of Appeals likewise took a pass on the case when it denied leave to appeal one of the lower court's orders. Essentially, by remanding the case, the Supreme Court is...

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Posted in: DNA,equitable parenting doctrine,Judge Michael Theile,Justice Marilyn Kelly,Lipnevicius,Mich Court of Appeals,Mich Supreme Court,paternity

Oakland Prosecutor Sticks with Decision to Quit Sobriety Courts

From its inception in 2003 until January 2009, this Blogger (Timothy Flynn) was a member of the 52/2nd District's Sobriety Court.  This post is an update on a blog our firm posted back in May 2009.In the earlier post, The LawBlogger addressed the situation with the Oakland County Prosecutor refusing to participate in sobriety courts across the county.  Jessica Cooper has stuck to this decision and she has been receiving much (negative) attention from discrict court judges and now, the Oakland Executive, Brooks Patterson.  Click here for the full article from the Oakland Press.  In the article, Cooper makes clear that she does not think the sobriety court program is worth the expenditure. ...

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Posted in: Brooks Patterson,district court,Jessica Cooper,Oakland County Prosecutor,sobriety court,The LawBlogger,Timothy P. Flynn

Chief Justice Roberts to Attend Notre Dame Game at Big House

According to the Michigan Daily, the on-campus newspaper at the University of Michigan, U.S. Supreme Court Chief Justice John Roberts will speak today at Hill Auditorium as part of the events surrounding the UM Law School's 150-year anniversary; he will also attend the football game tomorrow versus Notre Dame.In accepting the invite from the Law School, Justice Roberts apparently turned-down a $15,000 honorarium which UM says it never expected him to accept in the first place.  Talk about Ivory Tower politics... Most of the impressive Law School events are “sold-out”.  Nevertheless, for the 100,000 plus fans expected to attend the classic fall matchup at the Big House, it’s nice to...

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Posted in: Go Blue,Justice John Roberts,Notre Dame,U.S. Supreme Court,University of Michigan Law School

The Michigan Medical Marihuana Act

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...

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Posted in: Judge Lisa Gorcyca,Judge Robert Turner,marihuana,marijuana,Michigan Medical Marihuana Act

U.S. Supreme Court to Re-Hear Argument on the "Hillary Movie" Case

On September 9th, the nine Justices of the United States Supreme Court will end their summer recess early to return to Washington for a rare re-argument in what has turned out to be a momentus case: Citizens United vs Federal Election Commission.The case involves federal regulation of the political documentary titled, "Hillary, The Movie", which took a critical look at the character and career of Ms Clinton back in her pre-presidential candidate days. The documentary was produced by a conservative advocacy group; Citizens United. The issue in the case arose when the group was denied permission from the FEC to distribute the short film via "on-demand" cable services. Re-arguments at the high court are very rare, giving rise to speculation...

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Posted in: federal election commission,Hillary Clinton,McCain-Feingold,U.S. Supreme Court

The Legal Watercooler: Law School. Worth the gamble??

The Legal Watercooler: Law School. Worth the gambl...

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Passport Denied When Parent Owes Support Arrears

You are a non-custodial parent planning a vacation to Cancun with your kids. Your passport has lapsed and you apply for a new one, along with your children. Instead of receiving your passport, you get a letter from the Secretary of State denying your applications. Why?Because you owe more than $2500 in child support, and because the custodial parent must assent to the passports for the kids. Child support enforcement has had a federal component for several years now.Back in 2001, the U.S. government mandated that states align their child support accounts with state-wide computer programs. In Michigan, all county Friends of the Court have implemented the Michigan Child Support Enforcement System (MiCSES). MiCSES then certifies the support...

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Posted in: child support arrearage,Health and Human Services,passport,State Department

Law Firms Going Paperless, Slowly

Slowly but surely. That cliche best describes the pace at which area law firms are eliminating the paper clutter from their law offices.As Southeast Michigan touts innovations such as "Automation Alley", the sluggish pace of paper elimination is frustrating to many legal practitioners. Colorado and a handful of other states already have state-wide paperless court systems. The federal courts have been paperless for years. In Oakland County, however, only a few judges have electronic filing as an e-pilot program. Fortunately, the experiment seems to be working.In March 2003, Judge Joan E. Young, then the chief judge of the Oakland Circuit's family court, offered a standing-room-only presentation on the timeline for the court's so-called e-filing...

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Posted in: e-filing,Judge Joan E. Young,paperless

Oakland Sheriff's Marine Division Downsizing

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...

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Divorce in the NFL

Maximum temptation; continuous travel; lots of money. These are just some of the factors that contribute to the excessive divorce-rate among players in the NFL.There are no solid statistics, but an unofficial poll along with anecdotal evidence puts the divorce-rate for NFL players at 70% according to a recent NYT article; significantly higher than the overall divorce-rate of about 50%.Another statistic, perhaps correlated to the high rate of divorce among players, is that within two-years of their retirement, a shocking 78% of these NFL players are bankrupt, unemployed or divorced. There are good reasons for this.Among professional athletes, football players have a rough row to hoe. They suffer more physical pain on average than in other sports...

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Prescription Privacy Rights

When we fill a prescription, most of us believe that action, along with our identity, is private. In fact, the name and dosage of the drug, the prescribing physician, and your own name and social security number become a commodity bought and sold in the medical data-mining industry.A little-known provision buried in February's federal stimulus legislation, however, now requires pharmacy benefit managers, bankers, and medical claim processors to comply with Federal privacy and security regs. The new law is being fitted with federal regulations designed to give private rights some teeth; and violations a real bite.Both Walgreens and CVS have been defending recent litigation claiming violations of patients' rights to privacy relative to their...

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Posted in: CVS,health care,prescription,privacy,stimulus legislation,Walgreens

Driving While Distracted by Cell Phone

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...

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Posted in: distracted driving,drunk driving,fines,Karen Workman,ordinance

Custody and the 100-Mile Rule

The Michigan Legislature long-ago codified the rules of divorce in the Child Custody Act. One of the provisions in the Act addresses when one parent proposes to move:"a parent of a child whose custody is governed by court order shall not change a legal residence of the child to a location that is more than 100 miles from the child's legal residence at the time of the commencement of the action in which the order is issued."A recent published (thus binding) decision of the Michigan Court of Appeals provides guidance as to how those 100-miles are calculated.In Bowers -v- VanderMuellen-Bowers, the parents had joint legal custody of their son. Father, who had been awarded so-called "physical custody", wanted to move from Big Rapids to Byron,...

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Posted in: 100-mile rule,change of domicile,custody,parenting time

Divorce and Facebook: Privacy Be Gone

Is there any privacy among partners in a marriage; among parties to a divorce proceeding? In this web 2.0 era, some people are their own worst enemy. Photos or statements posted on the web lose all aspects of privacy. Deleting a post does not remove it from cyberspace. The Internet is rich terrain for discovery-seeking divorce lawyers.In a divorce, it is advisable to maintain privacy and restrict confidences to one's professional counselors. Why then, are so many people drawn to plastering their every move -including their horrible gaffs- on the Internet via the web's easily accesible variety of social networking platforms?A recent Time magazine article analyzes this trend in the divorce context: http://tinyurl.com/m9n6lhThe article includes...

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Posted in: divorce,Facebook,privacy,Web 2.0

Casino Winnings & Lawsuit Proceeds to be Attached for Child Support Arrears

The Michigan Senate is expected to pass a pair of bills designed to utilize proceeds derived from lawsuits and casino winnings, to satisfy past-due child support. The new law will require the recipient to provide notice of the expected windfall to the custodial parent.In the case of lawsuit proceeds, the child support-payor's family court lawyer, or the litigator that obtains the proceeds for the payor, will be responsible to provide notice via ordinary mail of the payor's gains to the custodial parent. Gambling proceeds would be tapped when the casino checks a winner's name against a list of "deadbeats" supplied by the Michigan Support Disbursement Unit.The bills, currently under consideration in the Senate's Family and Human Services Committee,...

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Posted in: casino winnings,child support arrearage,lawsuit proceeds

Identity Theft Concerns in Family Court Orders

The Michigan House of Representatives introduced a trio of bills which will require judgments of divorce, orders of filiation (between non-married parents) and child support orders, to omit parents' personal information. Note: a parent's name and address are deemed outside the scope of the phrase "personal identifying information", as that term would be used in the legislation. Personal information is defined as: telephone number, driver license or state personal identification card number, Social Security number, place of employment, employee identification number, employer or taxpayer identification number, government passport number, health insurance identification number, mother's maiden name, demand deposit account number, savings...

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Posted in: child support information,identity theft,privacy