Oakland County's Ax-Murdering Housewife Seeks Clemency

Sorry about that headline.  But this case was all-over your evening news back in 2004, when kindergarten teacher Nancy Ann Seaman axed her long-time husband to death on Mother's Day.

Earlier this month, Ms. Seaman filed for clemency consideration with Governor Rick Snyder.  You might recall [but probably not] that 3-years ago, a federal judge granted Seaman's petition for Habeas Corpus.

Ms. Seaman was jury convicted of first degree murder before retired Oakland Circuit Judge John McDonald.  Seven-months after her trial, Judge McDonald reduced Seaman's conviction from first to second degree murder.

Both Seaman and the prosecutor appealed.  The Michigan Court of Appeals reversed the trial court and reinstated Seaman's first degree murder conviction.  [The linked MCOA opinion contains a fascinating in-court colloquy about premeditation between the prosecutor and trial judge at the hearing on Seaman's motion for a new trial, beginning on page 5.]

The Court of Appeals found (by 2-1) that the trial court abused its discretion by acting as a "thirteenth juror" in reducing the conviction to second degree murder.  The intermediate appellate court also held that premeditation has no set time-frame but rather, can be established in the fleeting moment that it takes to have a "second look" at an imminent homicide.

Dissenting Judge Karen Fort Hood was troubled by the apparent "disconnect" between Seaman's self defense theory and testimony regarding "battered spouse syndrome".  Evidence relative to the latter theory was limited by the trial court.  Judge Fort Hood also commented on what she perceived as a confusion of jury instructions on the two concepts.  See the last two pages of the above link for her concise dissent.

The Michigan Supreme Court declined further review of Ms. Seaman's conviction; the Habeas petition still lingers with the United States District Court for the Eastern District of Michigan grinding through cases filed in 2009, before turning to those filed in 2010.

Carol Jacobsen, a University of Michigan Law Professor, is the executive director of the Women's Justice and Clemency Project.  They are seeking clemency for Seaman and 9 other convicted women, many of whom were tried prior to a change in the law allowing accused women to present evidence of domestic abuse.

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Posted in: clemency,criminal defense lawyer,Governor Rick Snyder,murder

Former Prosecutor Jailed for Withholding Exculpatory Evidence

Disgraced Former Judge
& Prosecutor Ken Anderson

We saw this in the 313 a few years back in the Judge Waterstone case; a prosecutor getting jail time for failing to disclose exculpatory evidence that could set an innocent accused individual free.  This post profiles a case, the worst we've ever seen here at the Law Blogger, that comes from Texas.

Here in Michigan, as in Texas and all other states, prosecuting attorneys have a duty to disclose evidence that is exculpatory -that is, favorable- to the accused.  Failure to disclose exculpatory evidence subjects the prosecutor to contempt of court for which a violator can be jailed.

Michael Morton was accused, tried and jury-convicted of killing his wife Christine back in 1987.  Ken Anderson was the prosecutor assigned to the case.  After convicting Morton, Anderson rode a "tough-on-crime" wave onto the county circuit court bench where he has been serving as a judge until resigning in disgrace just last September.

The source of his disgrace was that justice was finally served-up in Morton's re-opened murder case.  DNA blood evidence from another individual proved Morton did not murder his wife; the blood was from a local drifter who was later convicted of murdering another woman in Texas two years after Christine Morton's death.

In the process of re-opening Morton's case, it was learned that Anderson possessed two pieces of critical exculpatory evidence: Morton's 3-year old son saw the murderer and told his grandparents that it was not his dad but rather, a "monster"; neighbors' statements described seeing a drifter near the Morton residence in the days leading up to Christine's murder.

Unfortunately for Morton, he did a full quarter in the joint before being released in 2011.  The drifter was eventually convicted of Christine Morton's murder and now sits on Texas' Death Row awaiting execution.

As part of a global agreement settling all matters against him, the disgraced judge and former prosecutor was disbarred as a lawyer, and will do [only] 10-days in the county jail for contempt of court; he will not have a criminal conviction on his record.

The civil lawsuit against Anderson brought by the State Bar of Texas will be dismissed.  As part of the resolution, Anderson will not be charged with the more serious criminal charges of tampering with evidence [carrying a 10-year maximum prison term] due to statute of limitations constraints in bringing such a case.

If you were to ask us here at the Law Blogger, as between these two men, we believe Anderson got a far better deal.  He should be tasting prison food for at least a nickel; he got lucky and he knows it.

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Posted in: criminal defense lawyer,exculpatory evidence,Ken Anderson,Michael Morton,murder

Ex-Convict Jailed For Response To Jury Questionaire

There is a little known law here in Michigan that requires residents of any county to completely fill out and return a Jury Questionnaire.  Specifically, here is what we are all obligated to do pursuant to a chapter of our "catchall" statute known as the Revised Judicature Act:

Persons on the first jury list are required to return the questionnaire fully answered to the [County's] jury board within 10 days after it is received. [Bracket Supplied]

Last Monday, a resident of Bay County and ex-convict, reported to the Bay County Jail after have been held in contempt of court by Judge Joseph Sheeran for violating the above statute.

The man was held in contempt for completing his questionnaire with vulgarities and for scribbling things such as:

Leave me alone!! Please. Die in Hell Pigs/Judges/DAs.

He also told the judges to "f-off" and had other choice things to say that we will not print here at the Law Blogger.  The man's redacted handiwork can be viewed by clicking here.

This prospective juror's criminal defense lawyer could not keep the man from a jail sentence, however brief.  As noted by Judge Sheeran, all this man had to do was to disclose his ex-convict status and he would have been excused.

Was this individual as stupid as he accused the judges and county government workers being?  Or does he have the right to redress the government with an inartful complaint?

The interesting thing about this case is whether the citizen was entitled to "editorialize" his responses, incomplete as they were, as a part of his First Amendment right to freedom of expression and to petition the government with his grievances.  Or is his conduct and speech simply subject to the usual "time and place" restrictions relative to things [like census forms, tax returns, and other documents] that the government requires us to fill-out and file with one of their subdivisions?

Mi-Live's coverage of this man's conviction is replete with over 100 comments giving the many flavors, some frivilous, others quite serious, of our collective public view of such conduct, speech and government action.  Here are some of the comments this story has generated among the professionals, courtesy of the ABA.

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Posted in: criminal defense lawyer,First Amendment,Judge Joseph Sheeran,jury duty,Revised Judicature Act

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

AG Holder Signals Change in "War-On-Drugs" Policy

AG Eric Holder @ ABA Annual Meeting

By: Timothy P. Flynn

Addressing the ABA's House of Delegates in San Francisco last week, U.S. Attorney General Eric Holder announced a significant shift in federal drug policy that could have an impact on our decades-long "War-on-Drugs".  The policy initiative will effectively gut the tough anti-drug sentencing policies that have been a staple of federal legislation for the past quarter century.

Holder indicated that sentencing guidelines would be reduced for non-violent low-level substance abuse offenders.  Stringent mandatory minimums would be eliminated.

In making the surprise high-impact announcement, the U.S. Attorney General said, "too many Americans go to too many prisons for far too long and for no truly good law enforcement reason."

Going forward with the new policy, known as the "Smart on Crime" initiative, Holder said that US Attorneys will be exercising their prosecutorial discretion to charge defendants with minor crimes [i.e. possession] better suited to their substance abuse conduct, rather than charging such low-level participants with distribution crimes that carry hefty minimum sentences.

The AG also signaled that his boss, President Obama, will be seeking a legislative initiative that would give federal judges more discretion in their sentences for drug-based crimes.  This was very welcome news to the ABA's Criminal Justice Section Chair, Neil Sonnett, who characterized the long-standing federal drug policy as one that features "over-criminalization" and "over-incarceration".

We here at the Law Blogger have seen many a client go "bye-bye" due to these harsh sentencing guidelines, some of which spill over into our state laws.  Remember the mandatory drug lifer law debacle of the 1980s?

With the onset of drug courts and sobriety courts over the past decade that feature treatment over incarceration, the criminal justice system here in Michigan has made great strides toward what Holder announced at the federal level.

Hopefully this momentum will continue after Holder's boss leaves office.  For the opposing point of view, take a look at Georgetown Law Professor William Otis' editorial in USA Today.  Also, here is the NYT's op-ed on the incarceration aspect of this debate; and here is The Economist, calling for "Holder to be Bolder".

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Posted in: ABA,Attorney General Eric Holder,criminal defense lawyer,drug abuse,Smart on Crime,substance abuse,Timothy P. Flynn,war on drugs

Facebook and Vigilante Justice

By: Timothy P. Flynn

On Sunday Morning, I was reading the Detroit Free Press about a rough incident of vigilante justice made possible by Facebook.  As the social media experience accelerates, we can expect more cases like this one.

The Crime.  A 15-year old girl with Down Syndrome was allegedly raped in the Hubbard Farms neighborhood on Detroit's Southwest side on July 17th.  Word got out that the suspect was a 45-year old man, also from Hubbard Farms.

The Consequences.  First, Emails circulated through the neighborhood about the attack and the suspect's involvement, divulging his name and address.  Next, graffiti below the suspect's apartment window pronounced the Hubbard Farms resident a "Rapist".  Once outed by the graffiti and emails, neighbors demanded to know what should be done about the attack, and the alleged attacker, like right now.

An Unfortunate Delay.  For their part, the Detroit Police bungled getting off the dime on the case.  The subsequent investigation into the girl's attack led to a rape kit that included a Buccal swab from the suspect.  The DNA samples, however, were not transmitted to the Michigan State Police crime lab by the DPD for over a week.

We here at the Law Blogger know, from our own cases, that the State Police crime lab is seriously backlogged, taking between 6-months up to one-year before test results are returned.

A Facebook "Call-to-Action".  So in the month since the rape occurred, neighbors who see the alleged attacker still walking the streets, have become incensed with the slow-moving wheels of justice.  They know that the suspect has not been charged with any crime; at least not yet.

This delay in justice was not acceptable to some of the neighborhood residents who recently struck-up a FB campaign calling for street justice; one post even suggested a back-alley castration; others posted equally specific threats.

The Beatdown.  Apparently, due to the e-notoriety of the alleged attacker, he himself was attacked on the street by several members of the neighborhood, beaten with a baseball bat and kicked in the ribs and face according to witnesses.  He survived the beatdown and his family moved him to an unknown location for his own safety.  [Note: Although witnesses to the beatdown contacted the DPD, the police arrived too late, apparently otherwise engaged with a fatal shooting nearby.]

Guardianship Proceedings.  According to the Freep article, the suspect has a mental illness, was committed to a mental health facility last year, and has a Guardianship in the Wayne County Probate Court.

Managing over 75 guardianships in my own law practice as a Public Administrator, I understand the challenges and heartbreak of mental illness.  Mental illness, however, is not a legal defense to most crimes.  When our wards get charged and convicted of crimes, their mental illness is taken into account at the sentencing hearing, but it does not exonerate the criminal act.

Vigilante Justice.  Vigilante justice is not the answer, even when the wheels of justice turn slowly.  While justice delayed is truly justice denied, vigilantism points to a critical breakdown in our society, letting us know just how close chaos looms beneath the surface.

As a criminal defense lawyer, I understand the necessity of the prosecutor to collect evidence to prove the charges in a court of law.  Nearly always easier said than done, especially in Detroit.

In this case, the Wayne County Prosecutor will bring criminal charges against the alleged attacker just as soon as they have sufficient evidence to prevail in court; that's how the justice system works.

We here at the Law Blogger find it ironic that technological advances such as the proliferation of social media serve, at least in cases like this, to accelerate violence in a frenzied rush to judgment.

What if the mob gets it wrong; where is the appeal filed from that injustice?

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Posted in: buccal swab,criminal defense lawyer,Detroit Police Department,DNA,Facebook,guardianship,Hubbard Farms,Public Administrator,Timothy P. Flynn

Zimmerman Acquitted of All Charges

George Zimmerman awaits his fate yesterday.

As criminal defense lawyers, we here at the Law Blogger can certainly understand the exhilaration of a big defense win.  As parents, we also understand the slap in the face that this is to the parents and family of Trayvon Martin.

The all-female Seminole County jury elected to work into the weekend, deliberating on Friday night and into Saturday, before finding the accused neighborhood watchman not guilty of second degree murder and manslaughter.

You know the case; the self-appointed night watchman has a confrontation with Trayvon Martin, a teenager whose father lived in the community Zimmerman was patrolling.  The case featured Florida's so-called "stand-your-ground" self-defense statute and acquired a civil rights dimension due to the alleged racial profiling component of Zimmerman's actions.

Even President Obama publicly commented on the proceedings, remarking that if he had a son, he would look like Trayvon Martin.  Here in the 313, the Coalition Against Police Brutality has planned a public protest of the verdict.  Demonstrations erupted, briefly, in streets of Los Angeles, CA, when news of the verdict broke.

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Posted in: criminal defense lawyer,George Zimmerman,homicide,President Obama,second degree murder,Trayvon Martin

SCOTUS: Your Silence Can Be Used Against You

We here at the Law Blogger have some friends among the ranks of state prosecutors and law enforcement.  From time to time, we are treated to the "nuts-and-bolts" of the cold-case process from these professionals.

This post involves the ultimate resolution of a cold murder case and the result of that case now affects all citizens in their [hopefully occasional] interactions with law enforcement.  SCOTUS ruled yesterday that the silence of an accused, during questioning from the police, can be used against the suspect at his trial unless the person affirmatively asserts his Fifth Amendment right to remain silent.

In Salinas v Texas, the defendant was voluntarily discussing the 1992 murders of two brothers when he accompanied police to the station.  He was not under arrest at the time, and continued to discuss his knowledge of the circumstances of the murders at the police station; no Miranda warnings were supplied advising him of his constitutional right to remain silent.

After answering all the detectives' questions, Mr. Salinas suddenly fell silent when asked whether the shot gun casings found at the murder scene matched his shotgun.  His demeanor turned clammy and nervous; Salinas clammed-up.

Now, normally, your silence cannot be used against you in court.  In this case, however, Salinas' trial featured evidence from police testimony about his demeanor and silence during the shotgun line of questions at the police station.

The now-convicted double murder defendant appealed his case all the way to the SCOTUS and just lost yesterday.  Each of us lost a little sliver of our 5th Amendment right to remain silent along with Salinas' affirmed conviction.

The plurality decision in this case seems to split a hair relative to our constitutional rights while being interviewed or, by extension, interrogated by law enforcement.  SCOTUS held in this case that, in order to invoke his constitutional right to remain silent, Salinas had to affirmatively assert his right to silence.  Since he did not do so while discussing the murders with the police, his conviction was affirmed.

The lesson in all this: ordinary citizens must keep-up with the nuances in the law in order to properly assert their constitutional rights.  Put another way: with regard to our right to silence, this ruling takes a "use it or lose it" approach.

Michigan Connection:  now-retired Wayne County Assistant Prosecutor and appellate specialist [i.e. legend] Timothy Baughman filed as an amicus on behalf of Wayne County.

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Posted in: criminal defense lawyer,Fifth Amendment,right to silence,Salinas v Texas,SCOTUS

Driving Under the Influence of Medical Marijuana

The Medical Marijuana Act provides medical pot users with certain immunities relative to their use of marijuana.  Even a medical marijuana patient, however, cannot "medicate" while driving a vehicle, raising the question: just how much pot legally can be in the patient-driver's system?

Earlier this week, the Michigan Supreme Court released a much-anticipated decision resolving a conflict in the Motor Vehicle Code and the Medical Marijuana Act here in Michigan.  In a unanimous per curiam opinion, issued without oral arguments, the Supreme Court held in People v Koon that a medical marijuana patient is legal to drive a vehicle, even with some THC in his blood.

Rodney Koon was charged under the "zero tolerance" provision of the Motor Vehicle Code which proscribes driving with any amount of a Schedule 1 drug in the driver's system.  Koon, a properly registered medical marijuana patient, was initially stopped for speeding in Grand Traverse County.

Both the district court and the Grand Traverse County Circuit Court agreed with Mr. Koon's lawyers that the MMA provided Koon with immunity from prosecution under the motor vehicle code's "zero tolerance" provision -case dismissed.  The Michigan Court of Appeals reversed that dismissal, reasoning that even under the MMA, driving under the influence of marijuana remains illegal, and concluding that any amount of marijuana found in a driver's system constitutes "under the influence".

The Supreme Court disagreed, holding that some proof that a driver is operating a vehicle while under the influence of marijuana is necessary; evidence of a miniscule amount of THC in that driver's blood-stream, without more, is not enough to strip that driver of the immunity from prosecution available under the MMA.

This decision essentially amounts to a "sliding-scale" for pot-card carrying drivers.  You had better be sure sufficient time has elapsed between toking-down, and getting behind the wheel. 

We here at the Law Blogger suggest that 15 or 20 minutes clearly is not sufficient to keep the rest of us safe from a pot patient's stoned driving.  But what about an hour or two? 

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Posted in: criminal defense lawyer,medical marijuana,Michigan Medical Marijuana Act,Michigan Motor Vehicle Code,Michigan Supreme Court,People v Koon,Rodney Koon

Kwame Blames the Lawyer

We here at this Blog have been there.  You put your heart and soul into a case that goes to trial, giving it everything you've got, sometimes putting your reputation on the line; working into the night and on weekends to prepare.  Getting "paid-by-the-hour" for such ventures is rare, in fact, you rarely ever post all those hours on the peg board at the office. 

Sometimes, as in the case of Kwame Kilpatrick's lawyer, James Thomas, it's a court-appointed gig with a low flat fee.  And when the jury does not buy-into your client's defense, the client often views the guilty verdict as your fault.

Apparently, Kwame has not just been sitting idly in his cell in Milan.  In a recent post-verdict motion for a new trial filed with federal judge Nancy Edmunds, the former Detroit Mayor revealed that he filed a grievance against Mr. Thomas with the Michigan Attorney Grievance Commission [which apparently already has been dismissed], and again raised claims of "ineffective assistance of counsel" in violation of Hizhonor's Sixth Amendment rights.

Well, as one of the tax-payers that paid for that defense, and as a criminal defense lawyer myself, I cannot say that I am surprised.  This is a common tactic when an accused gets convicted in a case where the defendant is adamant about his innocence and ignores both the facts and the reality of his situation, as Kwame has done throughout his tortured proceedings.

The exact same scenario is unfolding out in Las Vegas where O.J. Simpson has also raised a claim of ineffective assistance of counsel against his long-time lawyer, Yale Galanter.  Simpson's case is in the process of exhausting his state law remedies so that he can proceed with a Habeas Corpus petition in federal court.

We here at this Blog certainly champion the accused's constitutional rights; those rights include raising constitutional issues post-trial, and testing one's conviction in the appellate courts.  Most often, those rights come at the tax-payers expense.

And if you've been practicing criminal defense long enough, eventually, you are going to get the blame for a client that goes down in flames.  My veteran legal assistant has a poster in her office for just such an occasion: "Stay Calm and Carry On."

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Posted in: criminal defense lawyer,James Thomas,Judge Nancy Edmunds,Kwame Kilpatrick,O.J. Simpson,Sixth Amendment,Yale Galanter

NTSB Recommends Lowering Drunk Driving BAC

The average female who consumes two drinks in an hour will have a blood alcohol level of about .05.  Yesterday, the NTSB voted to recommend lowering the legal limit from .08, the level that all 50 states have set as their legal limit, to the lower level.

It took more than 20-years for all 50 states to lower the legal limit for alcohol from .10 to .08.  Last month, a bill in the Michigan House calling for a return to the higher BAC was shot down.

If Michigan adopts the NTSB recommendation [unlikely anytime soon], we here at the Law Blogger will need to think twice about ordering that second drink with our dinner.  The American Beverage Institute, the "spirits" lobby, is already taking steps to prevent this recommendation from gaining any traction, calling the NTSB's stance, "ludicrous", and saying the move would criminalize, "perfectly legal conduct".

On the other hand, the NTSB points to the ever-present threat of drunk drivers still on our roadways, and will not let the nation forget that 10,000 deaths still occur each year due to drunk drivers.  Also, the NTSB points to Europe where a similar legal definition of drunk driving has resulted in a significant long-term reduction in drunk-driving related fatalities and injuries.

Experts agree that once a driver's blood-alcohol is over .05, vision begins to be impaired and driving skills are affected.  Most of the time, this is not a problem.

Try telling that to one of the parents who has lost a child to drunk-driving.  Again, we here at the Law Blogger find ourselves saying: have that night-cap at home, and keep the rest of us out of it.

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Posted in: BAC,blood alcohol,criminal defense lawyer,drunk driving,Michigan,NTSB

Mormon Murder Case Submitted to Jury

After 4-months of proofs, the capital murder case against Jodi Arias has [finally] been submitted to the jury for deliberation and a verdict.  Although the murder of Travis Alexander occurred in 2008, the jury was not empaneled until January 2, 2013.

In an interesting preliminary decision, the presiding judge elected not to sequester the jury.  This means that, although they were provided with a daily admonishment not to discuss the case with anyone outside the courthouse, jurors were left to their own devices when faced with the saturation-media coverage of this trial.

We here at the Law Blogger have posted on the topic of social media and the jury pool, and the problems presented by jurors that seek information about their case outside the courtroom.  In such high-profile cases, the jurors realize they are a part of our lurid true-crime history. 

These folks thus become high-profile jurors.  Many hire attorneys or agents after the trial to discuss lucrative media appearances; even book deals. 

Being in the profession of defending the accused, we wonder over here at the Law Blogger how many of the jurors assigned to this case have succumbed to the temptation of tuning into the media coverage of their case.  How many jurors have Googled some of the witnesses, particularly the experts, that testified in this case?

If any such forays come to light [and let's not forget that every Internet user's keystroke is recorded] this defendant will have at least one good appellate issue.  In our opinion, Judge Sherry Stephens should have sequestered this jury or at least obtained their known IP addresses, and she should have concluded the trial in February, not May.

Such cases give our media-rich culture the opportunity to marinate in the art of lawyering.  Some camps favor the prosecutor; others relish the art of defending the accused.

One thing is for sure -these high profile murder trials cement our collective national fixation with sex, religion and violence.  Not that each of us are latent dysfunctional bi-polar borderline personality stalkers.  Yet, as a nation, we just love the spectacle of the public trial; especially a capital murder trial.  Such trials have taken the place of a public execution in the town square.

Even with an inevitable jury conviction of some degree of homicide, unfortunately Ms. Arias will be with us for decades.  We here at this blog can already see the appeals beginning to form...

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Posted in: bi-polar,borderline personality disorder,capital murder,criminal defense lawyer,Jodi Arias,Judge Sherry Stephens,juror,jury trial,Mormon,murder,social media,stalker,Travas Alexander

Date Rape and Statutory Rape Plea Bargains

Around the turn of the century, Michigan's so-called "rape" laws underwent a sea-change.  The Legislature re-wrote the law of sexual assaults into what is now classified as "criminal sexual conduct" [CSC].

There are numerous facets to this law, including the ages of the accused and the victim; their relationship; the use of force; and many other factors.  Once convicted under the CSC statutes, a defendant then faces the onerous registration requirements under the Sex Offender Registration Act.

Recently, our law firm was involved in two CSC cases that were headed for jury trials; one in Genesee County and one in Oakland County.  Each case resolved with plea agreements that preserved our clients' freedoms, but also included punishments that were justified under the circumstances.

The case in Genesee County involved date rape and resolved with hard-bargained plea and sentencing agreements that reduced the degree of the charges from CSC 3rd to CSC 4th.  The sentencing agreement featured a no-jail guarantee.  The only way these agreements were reached was because our lawyers were prepared to try the case; and the accused had a good defense.

Our Oakland County case was not as strong.  The accused wanted to utilize a defense that his young victim looked years older than she actually was.  When a victim is between the ages of 13 and 16, however, the Michigan Supreme Court long-ago held that an accused's reasonable mistake in the age of the victim is not a defense.

In fact, this defendant had no defense, even though no force was used and the evidence showed that the young victim pursued the relationship with the accused and "consented" to sexual contact.  If convicted, he also missed the 4-year "Romeo and Juliet" age-gap that would have afforded him the opportunity to convince the judge that he should not be placed on the sex-offender registry.

Between our client's willingness to push the matter to trial, the reasonable approach of the judge, the open-mindedness of the prosecutor to resolve the matter short of trial and, perhaps most importantly, the victim and her family's unwillingness to take the matter to trial, our client was offered a no-prison guarantee on his sentence, with any jail term suspended on condition he successfully completed probation.  A very good result under such tough circumstances.

Sexual assaults are horrible crimes that, when reported, often make the victim pay.  They frequently go to trial.  Most often, such cases become an exercise in damage control.

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Posted in: criminal defense lawyer,criminal sexual conduct,CSC,Genesee County,Michigan Supreme Court,Oakland County,rape,Sex Offender Registration Act,SORA

Kelsey's Law Bans Cell Phone Use for Teen Drivers

Kelsey Raffaele killed at 17

As of today, Michigan roads have become a little bit safer.  On January 8^th, 2013 Governor Rick Snyder signed into law Public Act 592 of 2012, also known as Kelsey’s Law.  The new law, which takes effect today, is named in honor of Kelsey Raffaele, 17, of Sault Ste. Marie, who died tragically in a cellphone-related automobile crash in 2010.

The law bans 16 and 17 year old drivers with a level 1 or a level 2 driver’s license under Michigan’s graduated licensing system from using a handheld phone while driving. 

A level 1 driver has the most restrictions, while a level 2 driver only has a few restrictions –such as the number of passengers allowed and limits on nighttime driving.  A teen who is at least 17 and has at least six months of driving experience as a level 2 driver may qualify for a level 3 license- the typical, unrestricted MI driver's license.

Violation of the law is a primary offense, meaning police can pull over a young driver for no other reason than being on a cell phone.  However, both the governor’s office and law enforcement spokespersons signaled that, in most cases, Kelsey’s Law will be enforced only after detection of another moving violation; this will effectively making enforcement of the law secondary.

A violation of the law will result in a civil infraction with a fine to be determined by the local jurisdiction, and could cause the level 1 or 2 driver’s license period to be extended.  No points will be assigned to the driver's record and drivers will not be punished for using a vehicle's integrated hands-free phone system or for using cell phones to report an emergency.

 

Officers say that Kelsey's Law is not about punishing teenagers driving on a probationary license, but all about saving lives.  We here at the Law Blogger could not agree more.

Nationally, car crashes are the leading cause of death for young drivers.  In 2011, 154 fatal crashes in Michigan were caused by a driver under 21. So far this year, there have been more than 300,000 crashes due to cellphones in the US, and not all of these crashes are attributable to teen-drivers.

While an all-out cell phone ban for all drivers would be overreaching, we do believe teen-drivers often learn behaviors from their parents, who may be multitasking [talking, texting and e-mailing] while driving.  We note that it is illegal in Michigan for any driver to text while driving and believe it’s important for parents to set a good example.

Michigan roads are a bit safer today thanks to Kelsey’s Law.  Yet, one has to wonder how much safer Michigan roads could be if experienced drivers took heed of the new law, even though it does not apply to them.

As the bumper sticker says, “Get off the phone and drive!”

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Posted in: criminal defense lawyer,Kelsey Raffaele,motor vehicle code,Roberto Bihar,texting

Mormon Murder Provides Unique Cross-Examination Opportunity

Jeeze, the American media sure loves a good capital murder trial; especially one with the whiff of religion mixed with the spectre of the death penalty.  Plenty of grist for their insatiable mills.

Not since Under the Banner of Heaven, Jon Krakauer's fascinating account of the 1984 murders of a Mormon housewife and her 15-month daughter in Utah at the hands of her brothers-in-law, has the Mormon faith been enmeshed with a lurid murder like the trial grinding-onward in Phoenix, Arizona.

Yes, that would be the capital murder trial of the Casey-Anthonyesque "former model", Jodi Arias; accused of shooting, then slicing the throat of her Mormon boyfriend, Travis Alexander.  As a criminal defense lawyer traveling to circuit and district courts across Michigan, I've had plenty of time to listen-in on this sensational trial over the past two-months.

While quite rare to have any defendant take the witness stand in her own defense, it is exceedingly rare for a defendant accused of murder to take the witness stand in a jury trial.  Rarer still is to have the ongoing cross-examination of that defendant available in real-time for more than two weeks.

Cross-examination is the art of controlling a witness in order to convey a story, or a message, to a captive audience of 12 jurors; each of whom have somewhere else to be.  It is a skill that few lawyers can pull-off very well.  Like golf, you cannot just pick it up on the occasional weekend.  While there are boatloads of lawyers out there, only a handful have viable cross-examination skills.

The Jodi Arias trial is so lurid, with such high shock-value, it is a cross-examiner's dream.  A county prosecutor good enough to be assigned to a high-profile case is going to be a proficient cross-examiner.  Just listening to Juan Martinez cross-examining Ms. Arias, as a criminal defense lawyer, is like being in a trial clinic.

But 18-days on the witness stand?  Most judges have local court rules allowing them to control the decorum and procedure in their courtrooms, especially during a jury trial.  This power includes limiting time on the witness stand.  Most court watchers agree that this trial has turned into spectacle and has sailed over-the-top.

On the other hand, once you allow a genie like this out of the bottle, how then can you limit its scope when it takes on a life of its own.  If the Arias defense team tosses her a hundred softballs on a myriad of subjects in her direct examination [i.e. dates, times, family history, abuse history, sexual habits; each in excruciating detail], then what is a prosecutor to do but dutifully explore each and every door that has been thrown open.

Add to this the national media attention to the case, and viola; the politician within the judge in charge of such a circus is not going to prematurely turn the nation's eyes away, especially when that judge is center stage for the ever-ready lens of the voracious national media.

Nor can we forget to account for the potential value to the defendant, win or lose, of grabbing America by the shorties for as long as she can hold-on, in order to maximize her capital in the notoriety bank; the added-value could come in handy further down her tough road ahead.  From a long-term strategy perspective, this makes sense if you are Ms. Arias; and from what I've heard, she's got her head in the game.

We here at the Law Blogger defend the accused in jury trials all the time; admittedly, not high-profile murder cases.  We know some good judges here in Oakland County that could fit five or six murder trials into the yawning span of the Arias trial.  In the end, this spectacle amounts to a huge waste of legal talent and judicial resources.

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Posted in: capital murder,Casey Anthony,criminal defense lawyer,cross-examination,death penalty,Jodi Arias,Jon Krakauer,Juan Martinez,Mormon,murder,Oakland County,Travis Alexander

Blogging Litigants and the Courts

This post takes a look at two bloggers that are on the radar of their respective court systems by blogging as participants in litigation; one is a family practice doctor and criminal defendant, the other a parent embroiled in a family court custody dispute.

Dr. Linda Sue Cheek is charged with over 150 counts of distributing pain medications such as oxycodone, methadone, and morphine without having a valid drug license from the DEA.  She is scheduled to go on trial in Roanoke, Virginia this morning.

Since her indictment back in May of last year, Dr. Cheek has maintained a steady commentary about her case on her blog.  Her comments have included things like: she has been unable to practice medicine due to government collusion; that she and other pain management physicians are being treated by the federal authorities like Colombian drug lords; and that her trial will be "the beginning of the end of government persecution for doctors treating pain."

These comments were deemed sufficiently vitriolic by the local U.S. Attorney, a gag order was sought last week on the basis that Dr. Cheek's posts could pollute the jury pool.  U.S. District Judge Glen Conrad declined to enjoin Dr. Cheek's speech, stating that her First Amendment right to free speech is not suspended because she is on trial.  We here at the Law Blogger could not agree more.

In the family court matter, Daniel Brewington of Indiana has been blogging about his custody case for some time.  Like Dr. Cheek's blog, Brewington does not mince words but rather, takes the direct approach.

Brewington's 2007 divorce proceeding turned ugly early on, resulting in a court-ordered parenting evaluation performed under seal by a clinical psychologist.  The psychologist concluded that, due to the communication breakdown between the parties, sole physical custody should be awarded to Mother.

Dan Brewington took great offense and began to send the psychologist correspondence demanding that he withdraw from the Brewington's divorce case, retract his custody evaluation and report, and that he turn over  his entire file to the Father.

When none of his demands were met, Brewington next filed a complaint with the psychologist's state licensing body and started a blog which contained posts about his case, and his deep disappointment with the psychologist.  Father also posted on other websites, frequently referring to the  psychologist as a "very dangerous man who abuses his power."

Although some of Brewington's conduct was allegedly criminal, his case is noteworthy to the extent of examining his right to free speech in the context of family court litigation.  After Father lost custody of his child in the Indiana family court, he was prosecuted and convicted in a separate proceeding on two counts of "intimidation", attempted obstruction of justice, and perjury.

In the criminal case against Brewington, he was alleged to have characterized the family court judge on his blog as corrupt, unethical, and engaged in illegal behavior.  He also repeatedly referred to the judge as a child abuser.

Brewington was sentenced to 5-years in prison for his deeds.  The 44-page opinion of the Indiana Court of Appeals affirming his conviction and sentence has drew the attention, and criticism, of First Amendment scholars.

The problem that Brewington's case illustrates is that one can be imprisoned in Indiana for what one says, or blogs, so long as the speech is perceived as a "threat".  The First Amendment scholars have issued a call to action, led by UCLA Law Professor Eugene Volokh.

Both cases also point to the multi-faceted threats to free speech that surface again and again in our post-modern, Big Data culture.  You would think that by now, here in America, speech is protected.  As these cases demonstrate, guess again.

We here at the Law Blogger promise to be ever vigilant relative to such threats, reporting them as we see them arise.  Now get out there and express your bad-ass self!

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Posted in: criminal defense lawyer,Daniel Brewington,Dr. Linda Sue Cheek,family law lawyer,First Amendment,Indiana Court of Appeals,Judge Glen Conrad,Professor Eugene Volokh,U.S. District Court

Michigan Supreme Court Shuts Down Medical Marijuana Dispensaries

The case discussed in this note involves marijuana dispensaries.  They're out there folks; maybe not like Santa Monica Blvd, but they're out there.  Take a look at this Directory of Dispensaries.

The Michigan Supreme Court outlawed medical marijuana distribution schemes pot farmers have been using since 2008 to achieve some basic economy of scale and, imagine this, make money from the effort. The Act provides immunities and defenses for legitimate “patients” and “caregivers”, but pecuniary schemes like the one at issue in this casenote are clearly not protected by the MMMA.

Compassionate Apothecary, a medical marijuana dispensary, or “provisioning center”, was the business model that underwent recent scrutiny by the Michigan Supreme Court in People v McQueen. The Court’s decision spells the end of these easy distribution schemes.

The Compassionate Apothecary (CA) was a “pot club”, if you will. Except for their revenue generation, this club was run about as close to the requirements of the Michigan Medical Marijuana Act as possible. Our High Court, however, determined that the scheme did not comply with the Act, largely on pecuniary grounds.

Brandon McQueen was both a registered patient and the primary care giver to three patients. His business partner, Matthew Taylor, cared for two registered qualifying patients. Together, they ran CA, a membership organization with a physical location consisting of lockers for pot storage and transfer. To be a member, you have to verify your status as a “card-carrying” patient or provider.

The High Court’s syllabus best describes how the collective operated:

To be a member of CA, an individual had to be either a registered qualifying patient or a registered primary caregiver. Caregivers could only be members of CA if a qualifying patient with whom he or she was connected through the state’s registration process was also a member. Patients and caregivers who were members of CA could rent lockers from CA. Patients would rent lockers from CA when they had grown more marijuana than they needed to treat their own debilitating medical conditions and wanted to make the excess available to other patients. Caregivers would rent lockers when their patients did not need all the marijuana that they had grown. Patients and caregivers desiring to purchase marijuana from another member’s locker could view the available marijuana strains in CA’s display room. After the patient or caregiver had made a selection, a CA employee would retrieve the marijuana from the appropriate locker, weigh and package the marijuana, and record the purchase. The price of the marijuana would be set by the member who rented the locker, but CA kept a service fee for each transaction.

CA’s recorded pricing and service fees placed them out of compliance with the Act. Thus, it was a no-brainer for the High Court to affirm the intermediate appellate court and outlaw dispensaries.

In Ypsilanti, Third Coast Compassion Club takes issue with the decision. Without disclosing whether Third Coast charges different prices for various pot strains, or fees to facilitate transactions, their spokesperson said, “ultimately, we’re a private club, not a public store…” Well, good luck with that…

While the decision no doubt spells hardship for those in the, er, budding industry, Jim Lynch of the Detroit News observes “Panicked Uncertainty”. Hardly; but dedicated legitimate patients must now go underground or grow their own.

Free Press coverage touched on the legislative history of the Act; the Freep spoke with pot lobbyist Tim Beck of Detroit, a retired health insurance executive who was one of the scriveners of the original proposal put on the 2008 ballot. Beck indicated the words “sale” or “dispensary” were far too dangerous to use in the ballot initiative, so they were deliberately kept out of the text of the initiative.

The distribution concept integrated into the MMMA is one of: “grow your own”.  Professional horticulturists were not contemplated by the initiative and are not found within the scope of the Act.

Michigan Attorney General William Schuette, who joined the Isabella County Prosecutor in filing the complaint for a permanent injunction against Compassionate Apothecary as a public nuisance, said the Supreme Court’s decision clarifies the MMMA as follows:

 The law does not allow retail sales of medical marijuana.
 Sales or transfers are limited to those between caregivers and their five registered patients.
 Sales or transfers between registered patients are barred.
 Caregivers are not protected when selling or transferring marijuana to unregistered patients.

Among the patients and caregivers that commented to the state’s media yesterday, the theme seemed to be, “where am I gonna get my pot now?” Some medical marijuana patients that spoke with the Oakland Press, the Detroit News and Free Press said they were disappointed in the ruling because it will make marijuana more difficult to obtain.

87th District State Rep Mike Callton (R Nashville) introduced a bill last May which he characterizes as follows:

This isn't about restricting anyone's freedom or access to a substance that is now legal for those with a prescription. This is about making sure patients are safe and the product is safe. Since medical marijuana became legal in Michigan, dispensaries are popping up left and right and we need to make sure these places pass the grandma test.

Well, technically, the Act refers to a physician “certification”, not prescription; like the word “sale”, the word “prescription” does not appear in the MMMA.  So, to fill-in this gap, Rep Callton articulates the “grandma test” on his official website:

If you wouldn't feel safe having your grandma go to one of these places to pick up her medical marijuana, as if she went to a pharmacy, then it needs to be cleaned up or closed down.

Bottom line: the Supreme Court’s decision is a rationale application of the MMMA. Legitimate patients can legally obtain and use marijuana. But, growers beware; and take care not to make a profit, least you find yourself on the wrong side of felony charges.

For now anyway, pot farming is a labor of love…

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Posted in: Brandon McQueen,Compassionate Apothecary,criminal defense lawyer,dispensary,Matthew Taylor,medical marijuana,Michigan Court of Appeals,Michigan Medical Marijuana Act,Michigan Supreme Court

Michigan Medical Marijuana Act Does Not Provide Immunity for Collectives

Just prior to the holidays, the Michigan Supreme Court deepened its medical marijuana jurisprudence by deciding another key case applying the Michigan Medical Marijuana Act.  The case, People v Bylsma, arose out of Kent County and is distinctive because it is the first case under the Act that involves a collective grow operation.

Ryan Bylsma was a certified care provider under the MMMA.  He operated a medical marijuana collective with other pot growers.  He claimed that he assisted other farmers with their grow operations and that he only maintained 24 plants in the facility.

Bylsma was busted when a Grand Rapids city inspector observed suspicious wires coming from the structure of the collective.  The inspector forced his way into the structure [without a warrant], observed the extensive marijuana operation, and alerted the Kent County Sheriff.  Nearly 90 plants were seized from the structure.

The collective farmers had a locked facility, but they did not segregate their plants.  All three pot farmers were certified under the act.  Apparently, the structure was traced back to Bylsma from an owership perspective thus, he took the rap for possession of all the plants.

The Kent County Circuit Court trial judge did not buy into Bylsma's assertion that his pot possession within the collective was strictly limited to the 24 plants designated for his two patients.  Bylsma's motion to quash the information was denied and appealed to the Michigan Court of Appeals.

The intermediate appellate court affirmed the trial court, holding that since the strict plant limits and other provisions of the MMMA were not observed by Bylsma, then he could not avail himself of the immunity under section 4 of the Act, nor could he avail himself of the affirmative defenses under section 8 of the Act.

Maintaining consistency with their Kolanek opinion, the Michigan Supreme Court affirmed the intermediate appellate court in holding that, unless an accused complies with all the provisions of the MMMA, the section 4 immunity is not available.  The High Court reversed the Court of Appeals, however, by holding that the Act's section 8 affirmative defenses are available regardless of compliance with the Act.

The decision is significant to the extent that it resolves the issue of whether pot combine owners, partners or participants can combine space and share the protections of the MMMA; they cannot.  Further, this case again emphasizes the shortcomings of the Act with regard to any distribution-for-profit scheme; there are not enumerated in the Act, and the High Court laid the groundwork for striking down any such schemes.

We here at the Law Blogger see the medical marijuana jurisprudence establishing very limited defenses for true medical marijuana pot growers and users.  Those who insist on utilizing the MMMA to turn a profit will continue to be disappointed, while legitimate medical users will be afforded the protections envisioned by the Legislature.

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Posted in: criminal defense lawyer,immunity,Kolanek,Michigan Medical Marijuana Act,Michigan Supreme Court,MMMA,Ryan Bylsma

Appeals Court Creates New Crime to Affirm Conviction

This case, State v Helen, arose out of North Carolina.  The facts, on the surface, were about as favorable as it gets for the prosecutor.

The accused had a tail light out.  [If I had a dime for every defendant I represented who was pulled over for a tail light...]  The officer stopped the motorist; the stop led to a search of his vehicle and, eventually, a drug conviction.

Here is the problem that arose on appeal: in North Carolina, there is a little known wrinkle in their motor vehicle code which provides that, so long as a motorist's other tail light is functioning, having one light out is not a violation.

This case went all the way to the North Carolina Supreme Court.  Now, if I was sitting on that High Court, my vote would be to reverse the conviction.  If the officer lacked probable cause to conduct a traffic stop, then basic Fourth Amendment constitutional law provides that the evidence seized in an illegal stop and search is excluded as the proverbial "fruit of the poisonous tree".

A constitutional "no-brainer", right?  Guess again.  The divided High Court essentially created a new traffic law by holding that, so long as the officer held a reasonable belief that a law had been broken, the search was legal.

But citizens, take note that this "reasonably-held-belief" standard does not work both ways.  If you, the motorist, reasonably believe that you are obeying the traffic laws, [say you are texting in a municipality where you believe no distraction ordinance has been adopted], but in fact, you are violating a provision of the traffic code, then your ignorance of this law is no defense and you can get a ticket.

The "take away" from this case from North Carolina is that ignorance of the law is ok if you are a peace officer, but not if you are an ordinary citizen.

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Posted in: criminal defense lawyer,Fourth Amendment,law enforcement,police,pretext search,search and seizure

Marijuana Legalization is Election Issue

This past August, I was fortunate to have some business in the Greater Los Angeles area.  I was amazed at how many medical marijuana shops were open for business along Hollywood Blvd. and Sunset.  Even though California's big outright legalization initiative failed in 2010 [the medical pot lobby crushed it], marijuana is all-but-legal in Cali.

This week, Mexico, the biggest illegal supplier of pot to the U.S. market, is reportedly taking a very close look at three other Western states seeking to legalize marijuana outright through ballot initiatives on Tuesday: Oregon, Washington and Colorado.  According to The Economist, these initiatives have a very  good chance to pass in Colorado and Washington, while Oregon is considered a "long shot".

A long-standing argument for legalization is that it would put the drug cartels South of the boarder out of business to the extent that America could supply its own stash.  The past three Mexican presidents have all stated publicly that legalization in the U.S. would have the greatest effect on dismantling these vicious criminal gangs.

Marijuana produced by skilled Gringo horticulturalists, the argument goes, is of better quality and is cheaper to produce, than the Mexican import.  Also, it could be taxed like cigarettes to produce much-needed government revenue.

We here at the Law Blogger wonder if it is not indeed time to consider whether a policy change on this issue is due.  The three-decade policy of drug war eradication has been a prolonged costly failure.

Drug trade policy is one thing; federal law is another.  Any significant change in this direction would require that simple marijuana use and possession be removed from the list of federal drug crimes by Congress.  That is going to take some big-time lobbying.

In this regard, a California pot lobby, Americans for Safe Access, has convinced the powerful D.C. Circuit Court of Appeals to take a look at the science of marijuana in its case against the Drug Enforcement Agency.  Appellate oral arguments were heard in mid-October; the panel assigned to decide the case ordered additional briefings from the pot lobbyists and the DEA immediately following arguments.

The opinion, which could have a significant impact on the federal marijuana laws, is expected from the intermediate federal appellate court in a few months, and will be SCOTUS-bound thereafter.  We will continue to keep you advised on this landmark drug case; in the meantime, let's see what happens on Tuesday.

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Posted in: Americans for Safe Access,criminal defense lawyer,D.C. Circuit Court of Appeals,DEA,legalization,marijuana,SCOTUS