Michigan Supreme Court Blog

This article, written by Lyle Denniston, was posted on SCOTUSBlog this week.  An interesting summary of the challenges being mounted against the unlawful detention of persons in Guantanamo Bay. " Lawyers in a Guantanamo case intensify in the Court their challenge to the D.C. Circuit’s handling of a number of Guantanamo cases. A particular target, singled out for the first time: Circuit Judge Randolph. The lengthening series of D.C. Circuit Court rulings against the legal claims of Guantanamo Bay detainees drew its sharpest complaint yet in a new filing at the Supreme Court Wednesday. What has emerged is open rhetorical warfare on the Circuit Court judge who has been the architect of many of its rulings in Guantanamo cases: Senior Judge A. Raymond Randolph. He recently gave a public lecture, titled “The Guantanamo Mess,” which is linked in the new brief, suggesting that the judge “has all but announced a public agenda.” The filing accuses Randolph of leading the Circuit Court ...

 Justice Stephen Breyer  Tonight on the NBC Nightly News, Brian Williams presented an interesting interview with Justice Stephen Breyer on a number of different topics.  You can view the three different videos by clicking here .

Have you ever had the situation arise where the prosecution cannot produce the toxicologist who performed the analysis of the drugs in your trial, and, instead, will produce another member of the lab to testify that they have reviewed the work of the analyst and they conclude that the controlled substance is what the report says it is? Turns out such a scenario violates the defendant’s Sixth Amendment right to confrontation of witnesses. In the case of People v Dendel , decided on August 24, 2010, Court of Appeals’ Judges Borrello and Saad, with Judge Wilder concurring, held that when the CEO of an independent laboratory (AIT Laboratories) testifies to facts in a report from another analyst at his lab, such testimony violates the confrontation clause and the United States Supreme Court’s ruling in Melendez-Diaz v Massachusetts , decided last year. Katherine Dendel was convicted following a bench trial before the Honorable Chad Schmucker in the Jackson County Circuit Court. The pros...

Last Friday, the Supreme Court rendered another opinion dealing with a criminal case in People v Roberto Dupree . The question presented was whether a defendant may assert the defense of self-defense when charged with being a felon in possession of a firearm contrary to MCL 750.224f. The answer, at least in regard to Dupree’s facts, is, “Yes.” The Court granted Dupree a new trial, finding that Wayne County Circuit Judge Brian Sullivan erred when he gave, sua sponte, a jury instruction which he called “the necessity defense to being a felon-in-possession.” Justice Maura Corrigan wrote the opinion for the majority, consisting of Justices Weaver, Young, Markman, Hathaway and her, affirming the Court of Appeals published decision . (Judge Murray dissented ).  Justices Cavanagh and Kelly concurred in the result but wrote separately concerning the additional defense of duress which the defendant raised separately. Kevin Ernst represented Dupree on appeal. The defendant’s version of ...

In People v Gursky , the Michigan Supreme Court addressed the definition of “spontaneous” as the term is used in the “tender years” hearsay exception created by MRE 803A . The more restrictive definition declared by the Court resulted in the finding that the challenged statements were inadmissible and thus, had been erroneously admitted by the trial court. The victory for the defendant, however, was short lived as his four convictions for 1st Degree CSC ( MCL 750.520b(1)a ) were affirmed. The Court held the Macomb County Circuit Court’s error was harmless. Gursky was convicted of committing multiple acts of sexual penetration with his girlfriend’s daughter when she was six and seven years of age. The child testified at trial about the charged incidents. However, the prosecution called an adult friend of the child’s mother who testified to several out of court statements made by the child in response to the witness’ probing questions, days after the last date of offense. The question...

A divided Michigan Supreme Court on Friday reversed both the Muskegon Circuit Court and the Court of Appeals regarding what it means to “make or produce” child sexually abusive material under MCL 750.145c(2) when a defendant downloads child pornography from the internet and then simply copies those images to CD’s, where no proof exists to suggest the defendant had the intent to do anything other than retain the images for his own personal use. In People v. Hill , the defendant was charged with five counts of making child sexually abusive material, a twenty (20) year felony, and a Class B offense under the guidelines. Hill, represented on appeal by Grand Rapids attorney, Frank Stanley , contended he was merely guilty of the four (4) year felony for knowing possession of the prohibited material pursuant to MCL 750.145c(3), a much less serious Class D offense. In 2006, police discovered 50 CD-Rs in Hill’s bedroom with over 70,000 images of child pornography. Justice Markman ...

A split Supreme Court rendered its opinion in People v Feezel last week with Justice Cavanagh writing the majority opinion joined by Justices Kelly and Hathaway.  Justice Weaver concurred in the result, presumably on both issues, but refused to agree that People v Crawford was correctly decided (she dissented there), and would not agree to using that case to justify reversing the defendant's conviction here.  Interesting. Feezel was convicted of Leaving the Scene of Accident where Death has Resulted, OWI 2d Offense and Operating with any Amount of a Schedule 1 Controlled Substance Causing Death.  On the night of the incident, Feezel was driving on Packard Road in Ypsilanti Township.  It was dark and raining extremely hard.  The victim, whose BAC was a .29, was walking down the middle of the five-lane road with his back to on-coming traffic.  The accident reconstructionists agreed that Feezel would have had to have been traveling 15 MPH under those condi...

I noticed that the Court of Appeals has issued two published opinions this week dealing with criminal law, but before I post those to our blog, I wanted to alert everyone to a new feature we will be offering to our readers. Today, I am launching a new podcast called "Assistance of Counsel." By following the link here and to the right, you will be able to listen to an exclusive interview I recently had with Supreme Court Justice Maura Corrigan. Justice Corrigan was gracious enough to sit down with me and discuss various topics dealing with her career, her personal life, the day-to-day operations of the Michigan Supreme Court and the history of the court. Justice Corrigan has been on the Supreme Court since 1999, and the interview is very informative for anyone interested in the inner workings of the Court and Justice Corrigan in particular. Our new podcast offering will be an added feature linked to our blog and to our website, www.floodlaw.com. Soon, as well, our podcast...

From today's Detroit Free Press: Police raid highlights problems many face BY BILL LAITNER FREE PRESS STAFF WRITER Michigan's medical marijuana law has patients fearing arrest while police say they're unsure of who can legally possess or supply the drug. In several instances, police have arrested patients, confiscated their marijuana, conducted searches that turned out to be improper and seized trailer-loads of cultivation gear because of gray areas in the state law that allows medical marijuana, Southfield attorney Michael Komorn said. The legal problems spawned by the law are so great that defense attorneys have begun specializing in medical marijuana cases, with one top 10 Michigan law firm devoting an area of practice to it.  "Police across the state are either confused or resisting compliance with the medical marijuana law," staff attorney Dan Korobkin of the American Civil Liberties Union said. Some medical users lack proper paperwork or have m...

An interesting post today on the SCOTUSBlog form David Stras: Ryan W. Scott (Indiana University Maurer School of Law) has posted an article on SSRN entitled “Inter-Judge Sentencing Disparity After Booker: A First Look,” see here . The piece is forthcoming in the Stanford Law Review. Professor Scott uses a unique dataset from the United States District Court for the District of Massachusetts to examine how judges have handled their new sentencing freedom as a result of cases such as Booker, Kimbrough, and Gall. Using a natural experiment method, the study finds that the “judge effect” at sentencing has more than doubled since that trio of cases was decided by the Supreme Court. Though the article examines only the data from a single district, the empirical findings are consistent with anecdotal evidence around the nation regarding inter-judge sentencing disparities as a result of the Supreme Court’s recent sentencing jurisprudence. Of particular note, the study finds that some “busine...

Last week, the Michigan Court of Appeals published its opinion in the Attorney General's case against former Wayne County Circuit Judge Mary Waterstone, and in doing so, fired the entire Attorney General's Office and discharged them from any further responsibility for the prosecution. In the People v Mary Waterstone , presented to the Court by Paul Smith and Gerald Evelyn, the Attorney General had agreed to investigate and prosecute, if warranted, allegations that Judge Waterstone, Karen Plants and two Inkster police officers had either testified falsely or knowingly allowed perjured testimony to be presented to the jury in 2005 in the cases of the People v Alexander Aceval and Ricardo Pena.  After the Wayne County Prosecutor recused herself because of a conflict of interest, four other counties also refused the assignment. However, it turns out, the AG had a difficult conflict of interest himself.  Following his conviction, Aceval filed a Federal Sec. 1983 civil righ...

On February 2, 2010, the Michigan Court of Appeals reaffirmed the proposition that a sentencing court may not impose a prison sentence when the sentencing guidelines call for an intermediate sanction. In People v Lucey , Docket No. 288314, out of Roscommon County , the defendant, who was on parole at the time the offense was committed, had pleaded guilty to one count of attempted fleeing and eluding a police officer. The guidelines called for a minimum sentence between 5 and 17 months. The trial court sentenced Lucey to 17 months in the MDOC because it wasn't "going to go there." Where? The court did not want to sentence the defendant to a county jail sentence that would have to be served consecutively to the defendant's parole violation sentence. The COA found that a possibility of a future sentence is not a substantial and compelling reason to depart from the guidelines and sentence the defendant to a prison term. The trial court had not articulated any othe...