Police Required to Record Interrogation in Major Felonies

When we represent an individual accused of committing a major felony, we are mindful of the new statute in Michigan requiring police to record a custodial interrogation of that individual.  Although the statute took effect last March, some local law enforcement agencies have not been able to comply with the law due to funding limitations and budget cuts.

The express wording of the statute requires the police to make a time-stamped audio-visual recording of the entire custodial interrogation, including the Miranda warning component of the interrogation.  The statute also requires that equipment be utilized in this process that prevents editing or altering the original content of the recording.

When the police conduct a custodial interrogation for a major felony they are not required to secure the consent of the suspect, nor are they required to inform the suspect of the recording.  If the suspect objects to the recording, that is noted, and the interrogation continues unless the suspect invokes a right to have an attorney present.

Major felonies are defined in the new law as any felony that has life imprisonment, or a maximum punishment of 20-years; this includes Criminal Sexual Conduct in the 3rd degree [i.e. victim between age of 13 and 16].  In our experience with such cases, most interrogations have long been recorded.

Making a recording helps the system to the extent that such a recording makes compelling evidence at a criminal trial.  If the suspect confesses, then "the cloth is cut" as we say in the criminal defense bar.  When an accused's confession is recorded, and the criminal defense lawyer is unable to suppress the recording, a guilty plea usually results.

On the other hand, sometimes the recording depicts an individual ardently asserting their innocence, non-involvement, or an alibi.  Once produced, as required by the new statute, the defense attorney is entitled to a copy of the recorded statement.

If local law enforcement is unable to produce the major felony recording, either due to malfunctioning equipment [happens more than you would think] or because there is no equipment due to budget cuts, then the defendant is entitled to a jury instruction advising the jurors of the statutory requirement for a recording, and further advising jurors they can take the missing recording into account.

A more effective remedy, from the criminal defense perspective, is the preclusion of the substance of any unrecorded statement into evidence during the trial.  The best evidence is the actual recording of the accused's statement, not the officer's summary or re-telling of such a statement.

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Posted in: attorney,criminal defense lawyer,custodial interrogation,Michigan Penal Code,Miranda

Is it Ethical for a Lawyer to Have Sex With a Client?

Attorney Henry Baskin

Technically, the Michigan Rules of Professional Conduct do not expressly proscribe a lawyer from having sexual relations with a client.  The lack of a specific ethics provision, however, did not prevent the Michigan Attorney Grievance Commission from issuing a reprimand and assessing costs against well-known Birmingham attorney, Henry Baskin, for allegedly conducting a long-term physical relationship with a female divorce client.

We here at the Law Blogger know Henry, having worked with him on a few matters over the years.  So we are compelled to ask, Henry...Henry...of all the women you could persuade to, er, date you, why select a client; and a divorce client to boot?

The Attorney Discipline Board [a panel of lawyers assigned to decide Henry's case] had this to say in disposing of this matter:

Although there is no evidence of actual injury to the client, the potential injury under these circumstances is clear to any lawyer, and certainly to someone with [Baskin's] experience.

Never one to shirk the white-hot spotlight, Henry has publicly commented that he disagreed with the decision, and thought the matter should have been resolved privately long-ago; the relationship apparently was conducted from 1999 through 2004.  Henry also noted with some apparent pride, that his client was well-served in the divorce to the extent she received a record-breaking alimony award.

Perhaps this ruling will have some interesting future implications.  For example, what if the lawyer has a long-standing committed and pre-existing relationship with the client, say in a probate or commercial matter?  Obviously divorce clients are always going to be "taboo".  Or what if a lawyer represents his spouse?

The Attorney Grievance Commission always takes the unique facts and circumstances of a particular case into account.  We have to agree with this one.  Of all the people a divorce lawyer may elect to date, it just should not be from among the corps of that lawyers clientele.

So folks, beware of the horny divorce attorney!  Caveat emptor on that one for sure...

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Posted in: alimony,attorney,Attorney Grievance Commission,Birmingham,divorce,ethics,Henry Baskin,lawyer,sex

Debt Relief: Student Loans

Ever since the Great Recession put the strangle hold on the U.S. economy back in 2008, the default rate on student loans has skyrocketed.  This in turn has increased the debt collection case-load among the various United States Attorneys.

Michigan, hit particularly hard in the recession, is ranked 11th among the states in overall student debt load.  A full ten percent of the loans to Michigan students are defaulted.  The problem has become so acute, the U.S. Attorney's Detroit office hired a private law firm to aggressively pursue claims against students that defaulted on federal government loans.

Due to the number of public and private educational institutions located within the jurisdiction of the United States District Court for the Eastern District, and considering the drastic tuition increases to which these institutions have resorted, the USDC - EDMich has one of the most robust civil collection dockets in the nation.

It is crucial for college grads, law students, and other graduate students to avoid getting enmeshed in this collection docket.  Unfortunately, bankruptcy is not an option for educational loans.

The crux of the problem is that the ever-increasing student loan burden is met at graduation with a continuously shrinking job market. A veritable disaster waiting to happen; a disaster that is happening.

What is a graduate to do?  First, do not ignore the problem.  These loans will not go away, regardless of the nievete or hard luck of the student borrower.  Ignoring the debt will only remove any repayment options such as forbearance or rehabilitation periods.

Second, student debtors should thoroughly educate themselves on the student loan statutes and regulations prior to commencing negotiations with the federal lender or collection entity.  The Internet is an excellent source of information that will lead the borrower to primary resources.

Third, consider hiring legal counsel to assist you with negotiations with the lender; definately hire legal counsel if you have been sued.

Fourth, if you are a current student, scour the Internet for as many grant and scholarship opportunities as you can find prior to executing additional loans.  There is "free" money out their for students; you just have to find it.

Finally, be realistic when establishing your educational goals.  Avoid paying out-of-state tuition if at all possible.  Michigan has many great institutions of higher learning that fit the bill.

Good luck out there getting educated.  Take it seriously as you are mortgaging your future to obtain your degree.

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Posted in: attorney,bankruptcy,Detroit,forbearance,student loan,United States Attorney,United States District Court

Selling or Refinancing Your Marital Home During Divorce

This is the second contribution from local mortgage professional and licensed realtor Natalie DeLeo.  In this guest post, Natalie points out three things to consider when you are selling or refinancing your marital home in the divorce context.

1.  How do the terms "upside down" or "underwater" play into your decisions relative to your marital home?

Lower property values can affect your decision on what to do about your martial home.  For many people, the marital home is the largest asset they own.  Most couples cannot afford to own and operate two households: the soon-to-be former marital home, plus another home that one spouse moves into during the separation process that is divorce.

If the value of your marital home is less than the mortgage that is owed on it, selling the home will, in many circumstances, take much longer than a standard sale.  This is because you are in a “short sale” position.  Sometimes, short sales can take up to one year to obtain the necessary approvals from the mortgage lender; a second mortgage further complicates [and delays] the process.  

You could be in the marital home longer than you think.  Therefore, it is imperative that you plan to maintain the marital home as long as necessary to preserve the value.  If you find yourself in this situation, you need to hire a realtor that is a short sale real estate expert to broker your sale. 

If you or your soon-to-be-ex-spouse are not selling the home, then how do you must determine the equity or value of the home in this down market.  With home values bottoming out, there is less equity to distribute between the spouses. Sometimes debt is apportioned rather than equity being divided.

Some couples have considered maintaining a joint ownership of the home post-divorce [i.e. ownership as tenants in common, without rights of survivorship].  Their hope is that the real estate market will significantly rebound someday and both spouses can share in the net proceeds from the sale of the former marital home.  Check with your divorce lawyer about protecting your interest should you both decide to retain the marital home.

The mortgage economic crisis also has made it more difficult to refinance a mortgage to make payments more affordable for the spouse retaining a marital home. There are only two ways to remove a spouse from the liability of the martial home.

• Sell the home if it is not upside down.
• Refinance the home into the spouse’s name that is retaining the home.

Most homes in an "underwater" or "upside down" position will not have an available refinance option.  Contact a mortgage professional to find out about all the refinance plans to determine whether you qualify for any.  When doing so, be prepared to disclose whether you will be receiving [or paying alimony] or whether you can take advantage of a co-signor to get the deal done.

2.  What to consider when selling the marital home.

If you have determined that your home is not upside down and there is equity then you will have to have a licensed real estate appraiser determine the current value of home. There are many different formulas to determine the value of your home.  Ask your divorce lawyer for an explanation and a referral to get your home appraised.  

Each appraiser has their own opinion of what your home is worth; these opinions could be quite disparate. Your attorney will guide you through the process of how the home will be sold and assets distributed. Your realtor can help market the home so that you can get the best price for the current market.  

Your divorce attorney will have input about how to determine the value of the marital real estate; how the property will be marketed; and the timeline of a potential sale.  The goal in each case is to solicit a viable offer and to process the offer so that the home can be sold and closed in a manner that makes sense within the divorce framework.  

3.  Potential Problems when refinancing your Marital Home.

In the divorce context, the biggest problems arise when one spouse receives the home and agrees to refinance to remove the other spouse's name from the mortgage note.  In these tough economic times, couples are faced with: the lower average home values and tightened guidelines to qualify for a refinance transaction.  Sometimes, no matter how hard a spouse tries to refinance the home, they find they simply cannot close the deal.  

The spouse vacating the marital home is often required to execute a quit claim deed in favor of the spouse who receives the home.  Keep in mind when executing a deed that transfers 100% of your interest that it may be impossible for your former spouse to refinance.  

Or worse, we have seen where the spouse who remains in the home stops paying the mortgage and the home goes into foreclosure, with the missed payments and foreclosure proceedings appearing on the innocent spouse's credit report. Keep this in mind when making decisions relative to the marital home in your divorce proceeding.

If possible, get the issues worked out before the divorce is complete.  At least know that the spouse who is trying to refinance is a qualified candidate for the mortgage and has secured pre-approved before the judgment of divorce is executed.  Your divorce lawyer can put stipulations that the closing and disbursement can take place within so many [weeks or months] of the entry of your judgment of divorce.

The key is to prepare and think through all the options first, then direct your attorney to go out and negotiate your interests. Understanding and working through your particular situation and creating a plan with your attorney and his experts will give you peace of mind. 

Call Natalie DeLeo, Mortgage Consultant-on “The Cauley Team” NMLS LO# 138228 Mortgage Resource Plus 111 S. Old Woodward Suite 205 Birmingham MI 48009Office: 248-642-4600 Ext. 110. or Email Natalie@mrploan.com

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Posted in: attorney,divorce,lawyer,mortgage,real estate,real estate appraiser,short sale,tenants in common,underwater,upside down

SCOTUS Reviews Heath Care Legislation

In a historic judicial review process, the SCOTUS has been hearing oral arguments this week on the constitutionality of the Affordable Care Act that narrowly passed Congress last year.  The health care bill became law largely due to the personal lobbying efforts of President Obama himself.

Today, the nine justices, in order of seniority, will cast their initial vote to decide the case.  If he is among the majority, Chief Justice John Roberts will assign a justice, probably himself, to write the opinion for the majority.  If the Chief is not among the majority, the most senior justice in the majority will assign the lead opinion.

In a case this complex, sub-issues may be assigned to justices voting in the majority; dissenters often write separate opinions.

Among the issues framed for the High Court to decide: the constitutionality of the "individual mandate" making health insurance coverage mandatory and implementing a penalty tax for going "naked"; and the constitutionality of the provision expanding the federal and state health care partnership for the poor, known as MEDICAID.  The latter issue affects states' rights to the extent the federal requirements become overbearing and unconstitutionally encroach upon the autonomy of the states.

There has been a steady stream of high-quality intellectual blogging among the high-brow court watchers dissecting the marathon arguments.  By all counts, many of the Justices have been actively questioning the lawyers.  For example, in the final session yesterday afternoon, the four liberal Justices peppered Washington attorney Paul Clement with a series of questions presumably designed to get Clement to identify when federal government requirements, the spending clause limits, become onerous to the point of coercion.

Mr. Clement's worthy opponent, Solicitor General Donald Verrilli, Jr., had his hands full earlier in the week getting grilled by the conservative Justices.  As usual, however, Justice Clarence Thomas sat silent throughout the historic arguments, as is his custom.

Like so many crucial SCOTUS votes, this case may come down to Justice Kennedy.  He seemed to warm to the coercion theory propounded by the challengers of the ACA.

Near the end of the marathon session, in response, the Solicitor General urged the High Court to step back from the Medicaid expansion and the individual mandate arguments, and view the issues in more humanistic terms, equating affordable health care coverage among our "blessings of liberty".

We will probably not know how the Court has voted until early summer.  Stay tuned.

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Posted in: Affordable Care Act,attorney,judicial review,Medicaid,Paul Clement,SCOTUS,Solicitor General

SCOTUS Holds Effective Assistance of Counsel Applies to Criminal Plea Bargains



On numerous occasions over the years, I've represented criminally charged shooters from Detroit over in the Frank Murphy Hall of Justice. Rough ride folks.

Last week, the SCOTUS issued a very significant 5-4 decision in a shooting case straight outta Detroit. In Lafler v Cooper, and it's companion case, Missouri v Frye, the High Court held that the 6th Amendment guarantee of the effective assistance of counsel in a criminal proceeding, applies to the plea bargain process.

In the Lafler case, the defendant tossed a shot toward the head of his victim, but missed.  She fled, he pursued, spewing lead.  In the end, he caught her in the buttock and abdomen; she survived the assault.

Charged with attempted murder, Lafler faced the music over in the FMHJ; the "Murph" as we defense attorneys refer to that meat-grinder of a court house.  [Some may recall the building as the old Detroit "Recorders Court".]  As is very common in Wayne County murder and attempted murder cases, he was offered a deal: plead guilty and do less time.

His criminal defense lawyer believed he could beat the case on the theory Lafler did not attempt to murder his victim, because he shot her in the butt.  Yeah, good luck with that buddy.  Based on this legal advice, Lafler rejected the plea offer and went to trial.

The jury wasn't having it, convicting Lafler on all counts.  He was sentenceed to a term of imprisionment that far exceeded what the prosecutor offered.

The Michigan Court of Appeals rejected Lafler's "ineffective assistance of counsel" argument, and the Michigan Supreme Court declined further appeal.  Next, Lafler filed a habeas corpus petition in federal court. 

The Sixth Circuit Court of Appeals held that the 6th Amendment guarantee of effective assistance of legal counsel in all critical phases of the criminal process applies to the plea bargain process.  This decision was affirmed by a sharply divided Supreme Court, with Justice Anthony Kennedy writing for the majority, and with the conservative Justice Antonin Scalia reading his dissent from the SCOTUS chamber when the opinion was announced.

SCOTUS held that the right to effective assistance of counsel does indeed attach during the plea process; almost always THE critical point in the criminal prosecution according to Justice Kennedy.  He's right on that count.

The High Court ultimately held that when an accused "misses out" on the plea bargain process, or rejects a plea due to bad legal advice, as in Lafler, then the 6th Amendment is violated.  Justice Kennedy remanded the case to the lower federal court with instruction for that court to mandate the state court to re-offer the plea bargain, or to leave the defendant's conviction and sentence undisturbed.  The sentencing judge over at the FMHJ must perform a "balancing test" to decide which way to go.  See why we need lawyers...

Justice Scalia did not agree that the plea negotiation process was within the scope of the 6th Amendment's right to counsel.  Along with the other Justices in dissent, Scalia also crituqued the majority's failure to properly define the government parameters in this newly created constitutional right of plea bargaining.  The dissent sees years of additional litigation over plea bargains gone bad.

So pay attention to those plea offers all you criminal defense lawyers out there, or your representation may be deemed, er, ineffective.

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Posted in: attorney,criminal defense lawyer,Detroit,Frank Murphy Hall of Justice,habeas corpus,Lafler v Cooper,SCOTUS,Sixth Circuit Court of Appeals

New Apps Flood Lawyers With Information

Attorneys, perhaps more than any other professionals, are awash with information; information about their cases, information about changing laws, a constantly shifting schedule.  The pace with which the information now flows can only be described as instantaneous.

The manner in which a lawyer collects, stores and utilizes this information is a good indicator of that lawyer's professional skill.  In this era of a 24/7 stream of digitized information, mobile devices are beginning to offer specialized apps for lawyers.

Here are some examples:

SCOTUS App.  The Oyez Project has just launched an app that will download U.S. Supreme Court activity to your mobile device.  This will include digitally recorded oral arguments, text of the High Court's decisions, as  well as media coverage and analysis.  Pretty cool, to be sure; but is this information-overkill?  Why not just wait until you get back to your computer?

Mobile Transcript.  This app allows you to download, manipulate, summarize, and transmit deposition transcripts right from your mobile phone.  Great for when litigation data must be processed fast.  Try using this while on vacation, however, and you will likely need to hire a divorce attorney.

Family Law Apps.  Speaking of divorce, there are plenty of divorce-related apps in both the Droid and iPhone markets.  For those residents of Gotham, there is an app to calculate your child support, there are apps to save your marriage; apps to stop your divorce; apps to help you win custody and, or course, apps for various forward-leaning divorce attorneys and law firms.  Exhausting, to be sure.


State Bar App.  Useless here in Michigan, but perhaps a harbinger, the Maryland State Bar Association has produced an  app that downloads their rules of evidence, rules of professional conduct, and bits of professional philosophy right to your handheld device.  Can the SBM be far behind?


Law Blog Apps.  In a case of life imitating art, or perhaps this is best described as lawyers taking themselves too seriously, the blawg "FutureLawyer" announced on Tuesday that there is an app available to download their tech-related posts directly to your mobile device.  As if you just could not live without their updates; now you can digest their posts about the latest tech developments while you wait for your case to be called; could have used this App today.

In 18-months, most of these current apps will be considered obsolete.  The thing about high-tech is that products are constantly being improved.

Soon, you will be able to go to your doctor and just get a "chip" implanted into your skull; that way you'll have all the world's latest data right under your hood.  

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Posted in: apps,attorney,divorce,family law,Gotham,information,lawyer,mobile device,SCOTUS,technology

Cooley Law Alumni Sues Alma Mater in Class Action Suit

A class action law suit was filed against the Cooley Law School this week in the United States District Court for the Western District of Michigan.  In addition to legal counsel from Gotham, attorney Steve Hyder from Monroe, MI, himself a Cooley graduate, is local counsel on the suit.

The 45-page complaint reads like an indictment on the issue of student loans versus available law jobs in this protracted economic downturn.  The complaint alleges that Cooley intentionally uses false statistics (i.e. graduate employment rates and graduates' salaries) to lure and retain prospective law students .

The New York law firm handling the heavy lifting in the suit, Kurzon Strauss, is also suing the New York Law School on nearly identical grounds, but in state court.  Each suit seeks hundreds of millions in tuition refunds from the respective law schools.

Last month, Kurzon Strauss was on the receiving end of a law suit filed by Cooley, alleging defamation.  The firm had been trolling around Craigslist and Facebook soliciting candidates for its class action suit.  Understandably, Cooley wanted to get the drop on the firm and steal the negative publicity thunder such a suit would generate.  Always the publicity gurus over there at Cooley.

Cooley will probably use the same law firm on defense as they do on offense; Miller Canfield.  One way or another, this litigation will siphon-off some of Cooley's rich profits as they continue to tap deeply into the American Dream, lawyer-style.

August 2013 Post Script: Now, several years later, the US District Court dismissed the Cooley alumni law suit and in granting the FRCP 12(b)(6) motion, District Judge Gordon Quist was not kind to Cooley's self-serving rankings, characterizing the behemoth as a bottom dweller.  Judge Quist's opinion is here.

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Posted in: attorney,Cooley Law School,Craigslist,Facebook,law student,lawyer,Miller Canfield,Steve Hyder,U.S. District Court

Vote for the Law Blogger in the ABA's Top 100

This is the 5th year the ABA Journal has conducted an on-line poll to determine the best law blogs out there in Cyber-Space.  If you like our law blog, please vote for us by clicking here. 

The Amici form required to register your vote can be anonymous and only takes a minute.  Non-lawyers can vote for this blog.

The scope of content covered by the ABA's top 100 blogs is truly amazing.  One of the best features of such a poll is the diverse legal specialties that come into focus.  Niche areas such as intellectual property, patents, tax law, Internet law, and estate planning are ideal for blog coverage.  The attorneys that administer blogs in these areas are specialists devoted to the development of their respective niches.

Our blog, on the other hand, reflects matters of more general interest to lawyers and consumers of legal services in Michigan.  This is consistent with our firm's general practice in areas of divorce, criminal defense, and probate law.

By drilling into the ABA Journal's website, you can get an idea of the subject matter covered in the law blogs honored by this Top-100 contest. 

As a long-standing member of the ABA, this blogger was recently provided with several complimentary annual membership cupons.  I still have a few left.  If you are a Michigan lawyer with a P-number greater than 65000, send me an email with your contact information.  Interested attorneys must act quickly as these cupons expire in a few weeks.

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Posted in: ABA,ABA Journal,American Bar Association,attorney,law blog,law blogs,lawyer,The LawBlogger

Fathers See Gains in County Family Courts

Do the regularly maintained statistics support the contention that fathers are getting more time with their children in family courts?  To borrow a lyric from the 70’s band, Boston, “it’s more than a feeling”.

 

Divorce records maintained by the Michigan Department of Community Health reflect a trend that family law professionals have observed, and perhaps helped influence; fathers with joint custody and equal parenting time.

While family law attorneys will no doubt acknowledge this trend, hard statistics are difficult to garner.  Custody is still decided on a “case-by-case”, county by county, basis.

The form used by MDCH to collect information about divorces has a field to designate custody of minor children involved in a case.  The person completing the form, usually an attorney, selects from the basic options of joint custody, or designates custody to mother, or father.

Per usual, however, the devil is in the details.  For many practicing family law, the formal custody designation set forth in a judgment of divorce or custody order is merely a label, and a poor one at that.

Joint legal custody is usually a given; an accepted starting point.  Physical custody, however, is a more contentious battlefield.  The phrase “physical custody” does not even appear in the Michigan Child Custody Act; it is a mechanism used by family law attorneys and family court judges to identify a custodial parent.

The more significant provision is the parenting schedule set forth in the judgment.  Not only does that schedule establish how much actual contact the minor children get with each parent, it also determines the child support obligation for each parent.

Purely anecdotal evidence from our recent divorce cases is consistent with the trend that Fathers are awarded joint custody (legal and physical) more often and, roughly, equal parenting time.  One size, however, does not fit all.

An article titled Throwaway Dads, from the Michigan Bar Journal from 10-years ago, decrying a gender bias against fathers, provides an interesting barometer relative to the climate change in Michigan’s county family courts.

There must be good reasons to establish where the children of a divorce will live, and even better reasons to limit them from the home of one of their parents.  Focusing on the parenting schedule rather than the custody label is the real trend at work here.

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Posted in: attorney,child custody,Child Custody Act,family court,family law,family law lawyer,joint custody,Michigan Bar Journal,Oakland County Family Court

Reasonable Fees a Must in Tight Legal Services Market

Consumer focus groups often characterize attorneys as overpriced. Combine that conclusion with a lawyer's frequent arrogance, and the overall experience of purchasing legal services can be disappointing.

A recent study cited in The Economist noted that so called “Big Law” [America’s 250 largest private law firms] shed 8% of its work force over the past two years. Many top-tier law school graduates cannot find work in their chosen field.

Local general practitioners have also seen the effects of a tight market for legal services amidst a glut of service providers. Fortunately for them, appearing before the local magistrate or county trial judge cannot be outsourced to India like an e-discovery document review.

Nevertheless, globalization, digitization, and cloud-based data sourcing are driving fees for all legal services downward. Information is coming to the people at a bit-torrent pace. The client is forcing the attorney to re-think how service is measured and purchased.

Although professional pundits have been forecasting the death of the billable hour for the past two decades, it appears to finally be happening. Value-based alternative fee arrangements such as flat fees, performance contingencies, and multiple transaction discounts, are commonplace among competitive firms.

Survival in such an industry depends on a client-focused approach. Adding value to the client’s case, always important, is now imperative.

No one wants to overspend on a lawyer.  Therefore, prior to hiring an attorney, do some research on the Internet; check the reviews; check the electronic profile.  Your digital due diligence will increase the likelihood that your dollars will be well spent.

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Posted in: attorney,Big Law,law school,lawyer,legal services,The Economist

Murder has no Statute of Limitations

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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Posted in: attorney,defense lawyer,John Skrzynski,Michael McCarthy,murder,Oakland County Prosecutor,serial killer,statute of limitations

Is Law School Worth the Tuition Investment?

Graphic by Peter & Maria Hoey

Does Michigan’s economy really need six law schools pumping over a thousand newly minted graduates into the service sector every year?  

Unlike many job seekers, most new lawyers are heavily debt-burdened; some carrying well over $100,000 in student loans.  This can lead to desperation.

  

The economy is still smarting in several key sectors here in Michigan.  Both the auto and real estate sectors appear to be clawing their way back, but the jobless rate remains stubbornly high.  Most experts are saying we are in for another half-decade of “recovery”.

In down-times, higher education, as an industry, does remarkably well.  People take a hard look at their employment prospects and many decide to improve their skills by obtaining additional credentials.

Law school is something that nearly half the population considers at one time or another.  In this tough economy, however, have law schools turned this recurring American Dream into a debt-nightmare?


The question is on Congress' collective mind; they ordered up a report on this very topic from the GAO.

An entire generation of newly minted lawyers, facing student loans the size of a modest first home, are in the same tight spot as those who over-purchased real estate during the boom years.  Only for these new lawyers, there is no foreclosure option.  

And the prospects are, well, scary.  Established small and medium sized firms will lease office space, but they are not going to pay salaries.  The larger firms are downsizing their attorney-rosters.  A Northwestern Law study estimates that the large firm sector has lost more than 15,000 attorney and staff positions since 2008.

Corporate legal departments are slashing legal expenses; anything that can be outsourced goes to India where there is a glut of cheap lawyers, eager to review documents for about $20 per hour.

Despite this grim outlook, law schools are reporting up to 93% of their graduates are, “known to be employed nine-months after graduation.”  This statistic is fostered by the annual law school rankings published by the U.S. News & World Report. 

  

Employment as a barista at Starbucks, however, is different than working in the legal profession.  To improve their stats, some law schools have been known to temporarily hire a battalion of their recent grads for $20 an hour to work in the placement office.  The U.S. News statistic does not take these distortions into account.

This grim theme was the focus of recent “over-the-top” marketing techniques employed by Lansing’s Cooley Law School.  The correlation between a paucity of jobs and a downright glut of attorneys is well documented in the blogosphere.

It’s not all bad though.  Students with a high motivation and grade point can persist with good jobs in their chosen field, even after they take off their rose-colored glasses.

In our free society, with its commerce, temptations and throw-away marriages, there will always be a strong demand for legal services.



Update:  Shortly after this post, inspired by the front page article in the Sunday NYT's Business Section, this offering appeared in the WSJ's Law Blog.


Another Update:  As another sick indicator for law students and lawyers alike, here is a report from the ABA Journal about the editor-in-chief of the Chicago-Kent Law Review describing how he cannot find a job despite his best efforts.  Presumably, this dude is at the top of his class.  Like Michigan, however, Illinois has half a dozen law schools, all churning-out juris doctors each year, all with little hope of landing a paying lawyer-gig.  Go figure.

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Posted in: attorney,Chicago-Kent Law Review,Cooley Law School,law school,lawyer,U.S. News and World Report

100th Post - Thank You Readers!

We here at the Law Blogger would like to thank the Oakland Press, and our readers for the opportunity to disseminate our posts on the developing legal issues of our day, as they occur.

On average, this blogs receives 75 daily page views.  Sometimes, readers are motivated to comment.  The comments tendered often provide a fresh look at the subject from a completely different point of view.  They also provide insight into how we've treated a subject.

We value your comments.  Please keep them coming.

Interestingly, in our two-year history of 100-posts, the one about Cooley Law School's sponsorship of the former Oldsmobile Stadium received the most comment from readers.  Although posted back in February, we still receive the occasional comment on that post.

This blog first posted on March 30, 2009.  The topic was a Michigan Court of Appeals decision to address a parenting dispute between a lesbian couple.  Since then, the blog has featured many posts on the same-sex marriage issue.  Other recurring themes have included the Michigan Medical Marijuana Act, decisions of import (in our opinion) from the Michigan Supreme Court and SCOTUS, the Second Amendment, the Fourth Amendment's search and seizure case law over the past two years, family law issues, and many other topics we hope that you find useful, or at least interesting.

In the posts, which we try to keep relatively brief but of a varying length, we link to original documentation whenever possible.  Also, we make every effort to get out at least two posts each week; three posts if possible.  Some of your comments have expressed approval of this model.

There are a sea of blogs out there on every topic imaginable; particularly legal topics.  We hope that the fleeting time you have to spend checking your various news feeds throughout the day is worthwhile when you alight upon our blog.

With the lighting-fast pace of developments on the Internet, -newsfeeds, social media, aggregated search tools, mirco-blogs- some of the pundits now wonder if blogs have been relegated to the "old school".  Not so, says one of the premire law bloggers, Kevin O'Keefe.  His recent post emphasizes the importance and value of a good law blog.

Most law students and legal professionals now keep current with developments via subscriptions to various law blogs.

As always, if you have any suggestions or comments, we welcome you to post your ideas to this blog, or by contacting us electronically.

Above all, thanks again for taking a moment to read our posts.  Without you, the reader, this blog is nothing.

For our part, we aim to keep the fresh, relevant legal content posted to this blog.

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Posted in: attorney,Cooley Law School,Kevin O'Keefe,law blogs,lawyer,legal issues,Michigan Court of Appeals,Michigan Supreme Court,Oakland County Circuit Court,Oakland Press,SCOTUS

Bloomfield Hills' Medical Marijuana Ordinance Challenged in 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 and misconception, 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.

Ludington Update:  Bloomfield Hills is not the only municipality seeking to restrict the use of medical marijuana; check out the moratorium proposed in Ludington.

Royal Oak Update: Feb 3, 2011.  Now, Royal Oak is getting in on the act of restricting patients' rights under the MMA by proscribing grow operations within the city limits.

Ann Arbor Update:  Of all places, Ann Arbor is also getting in on the ordinance dance.  For its part, however, there seems to be a delay in bringing the issue to a vote, as the AA City Council continues to revise the proposed ordinance.  Compared to other municipalities, the ordinance proposed in Ann Arbor seems much more in-tune with the MMA.  As the city attempts to properly define the terms of its ordinace, one medical marijuana entrepreneur is challenging the ordinance in a law suit before it has even passed, claiming unconstitutional vagueness.

Montana Update:  For it's part, the Republican-controlled state legislature is poised to pass a bill repealing the MMA in that state.

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Posted in: appeal,attorney,criminal,criminal defense attorney,marihuana,marijuana,Michigan Medical Marihuana Act,Michigan Supreme Court,Neil Rockind,ordinance,Royal Oak,Tom Loeb

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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Posted in: attorney,family court,family law,felony child support,Justice Robert P. Young,Michigan Court of Appeals,Michigan Supreme Court,Selesa Likine

Bankrolling the Divorce Settlement

We've all heard about lenders that specialize in loaning to personal injury plaintiffs in advance of their settlement. These firms front the money to the plaintiff, at a significant discount from the amount expected to be realized in the ultimate settlement.

This same principle is being applied to divorce judgments. Get your money now and your divorce later.

Mind you, this is not for folks with middle-class marital estates. Rather, this brand new industry is developing on the left and now the right coasts for married couples that have estates north of 2 or 3 million.

For example, Balance Point Divorce Funding of Beverly Hills, CA was started last year by an attorney, Stacey Napp, with funds she obtained from her own divorce.

In New York City, it looks like it's going to be Churchill Divorce Finance; a firm gearing-up for a mid-winter opening with the promise of, "leveling the legal playing field."

Each of these lending firms will specialize in lending money to parties involved in divorce who are expecting to walk away from the family court with a fair amount of hard cash; millions in fact. Hard to believe here in Michigan, but those folks are out there.

One advantage of such firms is the ability for a "non-earning" spouse to obtain money in order to pay lawyers and forensic accountants to go after hidden assets, or "cooked" books in the family-owned business.

For others, it's simply an opportunity to get the money now in order to fuel that new, post-divorce lifestyle. In many cases, a little money up front goes a long long way.

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Posted in: attorney,Balance Point Divorce Funding,Churchill Divorce Finance,divorce,Stacey Napp

Satelite Tracking Devices May Constitute a Fourth Amendment "Search"

At the Law Blogger, we often see the use of GPS tracking devices in the divorce context.  What happens when the police use such devices to gather evidence of crime?  Are your movements constitutionally protected?

Two cases percolating their way to the SCOTUS (a petition for certiorari already filed in one) involve police use of high-technology tracking devices.  The High Court will be asked to decide: a) whether the prolonged monitoring of a suspect via GPS technology is a "search" under the meaning of the Fourth Amendment; and b) whether police entry onto private property to plant the device invalidates such a search.

If the petitions are granted, these questions could be briefed, argued and decided in the 2011 term of the Court; the "day-after-tomorrow" on our common law clock.

Brief legal background:  More than 25-years ago, SCOTUS ruled in U.S. vs Knotts that the police could use an electronic "beeper" to track a suspect's movements to and within a drug lab without triggering the warrant requirement of the Fourth Amendment.  Federal courts throughout the various circuits across the country, and the patchwork of state courts, have developed a wide array of conflicting laws governing the extent and duration such monitoring can take before the surveillance becomes a search requiring a warrant based on probable cause.

Now its time for the SCOTUS to clarify things.

In Pineda-Moreno vs United States, petitioner, an Oregonian, maintained a huge pot farm hidden deep within the forests of Southern Oregon and Northern California.  Using a variety of high-tech GPS devices, some as small as a stick of gum, federal agents were able to build a manufacture/distribution case against Juan Pineda-Moreno.

The federal agents came onto the curtailage (privately-owned surrounding area) of Mr. Pineda-Moreno's manufactured home to place a variety of devices onto his Jeep from June through September back in 2007.  They were even able to replace the batteries on some of the tracking devices.  Juan was oblivious to their efforts.

In his guilty plea (he is currently finishing up a 4-year prison sentence), Pineda-Moreno preserved his right to challenge the fed's "search" of his person; his movements.  The Ninth Circuit Court of Appeals ruled the agents' tracking was not a "search" within the meaning of the Fourth Amendment.

The other case is coming to SCOTUS via a likely government petition for cert in Maynard vs U.S. where the D.C. Circuit has ruled far differently than the Ninth Circuit on a variety of related issues.

SCOTUS has long held that police may closely scrutinize a vehicle; particularly a moving vehicle.  What this technology, and now, these cases, focus the Court on is whether extensive tracking transforms our vehicles from objects of public viewing (without any reasonable expectation of privacy) into purveyors of private information which can only be tapped via a probable cause warrant.

Stay tuned as SCOTUS catches up to, and rules on, the latest law enforcement surveillance techniques.

Sidebar Note to all you certified marijuana users out there, palliative or recreational; federal charges are a real risk, with harsher sentencing consequences.

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Posted in: attorney,Fourth Amendment,GPS,medical marijuana,SCOTUS,search and seizure,surveillance

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.

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Posted in: attorney,Center for Court Innovation,criminal defense attorney,Francis Lewis High School,Gotham,Khaair,New York City

SCOTUS Grills California's Hired Appellate Counsel in Landmark Prison Case

Justice Sonia Sotomayor

Ok, we've seen this one coming down the tracks.  The ABA Journal is reporting that Justice Sonia Sotomayor told the managing partner of Sydney Austin's Washington, D.C. office, Carter Phillips, to "slow down from the rhetoric", as Phillips began his argument before the High Court on behalf of the State of California in the Schwarznegger -v- Plata  prison overcrowding case.

Justice Sotomayor also had a series of hard questions for California's appellate attorney such as how his client could possibly explain recent prison deaths and why these prisons are choking with dazed, deranged inmates sitting in their own feces.  She wanted to know what California's plan will be.

 As you can imagine, the present Justice-mix soon erupted and the debate was carried on, heatedly, among the jurists themselves.  The high-powered lawyers were rendered oddly silent, as the intra-jurist discussion was occasionally refereed by Chief Justice John Roberts.

According to eye-witness accounts from among the professional-stocked galleries, Justice Samuel Alito was visibly agitated pondering the prospect of newly released inmates cruising the streets of California and, eventually, the nation.

Court watchers once again believe that the Court will line-up along their classic "ideological" lines, neutralizing each other, 4 votes to 4; and setting up Justice Anthony Kennedy to write the tie-breaking concurring opinion.

Even if the Court's opinion amounts to a mere plurality (less binding on subsequent couts), a landmark prisoner's rights opinion is heralded.  We will, of course, update you on the SCOTUS opinion.  You'll know when this decision hits (March/April?) as it will be all over your evening news.

Meanwhile, the SCOTUSblog has posted two fascinating segments from yesterday's oral arguments. 

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Posted in: Arnold Schwarzenegger,attorney,Attorney Carter Phillips,Chief Justice John Roberts,Justice Anthony Kennedy,Justice Samuel Alito,Justice Sonia Sotomayor,lawyer,prison,SCOTUS