Friday, December 31, 2010

D.C. Circuit: Detainee “road block”?

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 in “passionate animosity to the Guantanamo cases,” perhaps motivated by the Supreme Court’s “repeated reversals” in several of those cases.

Lawyers for a Yemeni national told the Justices that the “D.C. Circuit appears intent on reversing the effect of this Court’s [2008] decision in Boumediene [v. Bush]…Unwilling to abide the commands of Boumediene, the court of appeals has thwarted the intent and rule of that decision at every turn.” For detainees, the brief added, the Circuit Court has become a “road block.”

The brief was in reply to a Justice Department filing earlier this month in the pending case of Al-Adahi v. Obama (10-487), now scheduled to be considered by the Justices at their private Conference Jan. 14. (This earlier post on the blog discusses that Department document.) This is the first of eight new detainee appeals now on the Court’s docket to be ready for the Justices’ consideration.

In the Al-Adahi case, the Circuit Court — in an opinion written by Judge Randolph — established a new legal rule for Guantanamo cases, requiring the trial judges in the District Court to use a new mathematical standard — “conditional probability” — that gives enhanced weight to the government’s arguments in favor of continued detention of Guantanamo captives. That standard, the new brief contended, will go well beyond Guantanamo cases, and will govern how the Circuit Court reviews “all civil non-jury cases.” The standard, the filing argued, allows the Circuit Court to adopt for itself a wide-ranging authority to judge the strength of the evidence, substituting for the judgment of the District Court judges who tried the cases and heard witnesses in person. In his case, Mohammed Al-Adahi appeared at the habeas trial via a video hookup to Guantanamo.

“The price of the circuit court’s determined assault on Boumediene is, in this case, a reconfiguration of the roles of trial and appellate courts,” the brief argued. The Circuit Court decision in Al-Adahi’s case, it added, “is evidence that the [circuit] court will create new and dangerous theories to overturn the findings of trial judges,” it added. “Presuming that this Court meant what it said in Boumediene, it should grant” review and reverse in this case, the brief said. “Unless the lower courts follow this Court’s decisions, even if they disagree with its opinions and the constitutional provisions they enforce, the Court is reduced to writing law review articles.”

Pointedly, the brief recalled that Judge Randolph also wrote three prior Guantanamo decisions that the Supreme Court had overruled — Boumediene, as well as Rasul v. Bush in 2004 and Hamdan v. Rumsfeld in 2006. The brief added: “As a senior judge, the author of Al-Adahi is added to randomly assigned two-judge panels and often hears Guantanamo cases.” And, it noted, no Guantanamo detainee who has won a habeas case in District Court “has survived a trip” to the Circuit Court. Even more than the present eight pending cases are coming, “seeking this Court’s attention,” the brief said.

The filing argued that the Justice Department had given, in its own brief, only a “dispirited” defense of the “conditional probability” standard, doing so mainly by recharacterizing the Circuit Court’s “wholesale change in the scope of review” as if it were “a principle of reasoning that is consistent with” Supreme Court precedent. “The government,” it went on, “never explains how the court of appeals’ ‘new math’ can be squared with a system of justice in which testimony matters and trial courts judge its credibility — making all the qualitative judgments that affect that assessment.”

The “conditional probability” standard, the brief asserted, has “system-rocking import,” as a “wholesale rewriting of the scope of appellate review in civil cases in which the district court is the fact-finder.”

Judge Randolph’s opinion in Al-Adahi traces the “conditional probability” standard to a 1993 Circuit Court opinion that he wrote, U.S. v. Prandy-Binett. (The opinion in that case can be read here.) It involved a legal issue over how courts should weigh the judgment of narcotics officers in deciding whether a package contained illegal drugs — an issue of probable cause. “Al-Adahi is its first use in reviewing the decision of a district court finding facts at trial,” the new brief told the Justices.

With the filing of the reply brief by Al-Adahi’s lawyer, his case is now ready for distribution to the Justices for their initial look next month."

Tuesday, September 14, 2010

Interview with Justice Stephen Breyer on NBC


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.

Monday, September 13, 2010

Violation of Sixth Amendment Wrong, but Harmlessly So

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 prosecution theorized that the defendant had injected the decedent with a high dose of insulin, causing him to suffer hypoglycemic shock, lapse into a coma and die. The lab CEO opined, based on the analysis of others who performed the tests on the body, that the zero level of glucose in the decedent’s vitreous fluid proved he had been injected with insulin prior to his death. Judge Schmucker held, over the defense attorney’s objection, that the prosecution had laid a proper foundation for the hearsay testimony and that the toxicology results came within the business records exception. The Court of Appeals, however, after a very detailed analysis of the SCOTUS opinion in Melendez-Diaz and interpreting decisions from other jurisdictions, concluded the laboratory had been contacted for the purpose of assisting law enforcement in determining the zero glucose level. That distinction rendered this case more similar to the Melendez-Diaz decision than it was to other Michigan decisions that have found that lab reports are not testimonial. Therefore, the Court held that the trial court erred in allowing the hearsay testimony because the defendant had no ability to cross-examine the analysts who did the actual testing of the bodily fluids.

However, the analysis did not end there. The Confrontation Clause aspect of the defendant’s objection was not preserved at the trial level, however, the Court held that such an objection would have been futile because the USSC had not yet decided either Crawford or Melendez-Diaz. The Court held that the issue was reviewable as though it had been fully preserved because of fundamental fairness. Therefore, the Court was required to review the error to determine if it was harmless beyond a reasonable doubt. It was.

The defense raised at trial was that the victim died as the result of a suicide, injecting himself with insulin so that the defendant would not have to care for him any longer. This defense severely undermined the importance of the zero-glucose finding of the lab. Further facts supported this defense theory. “After defendant’s arrest, she told police detectives that Burley had injected himself with insulin. During a later interview with a police detective, defendant said, ‘That poor dear, he killed himself for me.’” The Court found that it made little difference that the fact finder heard inadmissible hearsay suggesting that the victim had been injected with insulin. Consequently, the Court concluded that the Confrontation Clause error was harmless beyond a reasonable doubt and she was not entitled to a new trial.

Nonetheless, criminal defense attorneys have been given, I believe, a powerful argument against the admission of laboratory findings unless the prosecution presents the actual analyst who performed any scientific testing that is relevant to the elements of the offense.

Remember, however, that this opinion still does not affect the admissibility of autopsy reports. The distinction there rests on the statutory obligation of the medical examiner to render an opinion in any unexpected death. Therefore, the motivation to feel pressure from law enforcement or to desire to please law enforcement does not exist. To me, it is a distinction without substance as the typical M.E. is usually motivated by his or her conversations with police investigators, but, perhaps, that is an argument to be reserved for a later date.

Thursday, July 29, 2010

Self Defense is Available to Felon-in-Possession of a Firearm

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 the events differed significantly from the prosecution’s, but did create a plausible self-defense argument. Dupree was at a party and observed the complainant, Reeves, shove a female relative off of the porch. Dupree interceded and told Reeves not to disrespect his sister-in-law. Reeves shoved Dupree and the two fell off the porch wrestling. During the struggle, Reeves shirt came up and Dupree saw a gun in Reeves’ waistband. Dupree was in fear for his life because Reeves was bigger, drunk and armed, and, when Reeves went for the gun, Dupree grabbed it. As the two struggled over the gun, Dupree shot Reeves three (3) times. Dupree kept the gun, left the premises and threw the gun out of his car window when he was a sufficient distance from the house. Dupree was charged with Assault with Intent to Murder, Felonious Assault, Felon in Possession of a Firearm and Felony Firearm. The jury found him not guilty on everything except being a felon in possession of a firearm.

The verdict, the Court found, was necessarily correct in light of the trial court’s erroneous jury instruction which included the following element: “And third, that it was the defendant’s intention to deliver the gun to the police at the earliest possible time. The law imposes that duty as a concomitant part of that.” Michigan’s jurisprudence carries with it no such requirement, and the Court found that the error was not harmless.

Because the Court had granted leave to address whether, if at all, self-defense is available to a defendant in a felon-in-possession case, a majority of the opinion is devoted to answering that question. Because the defense is “embedded in our criminal jurisprudence” it is available as a defense to this charge even though the charge of felon in possession of a firearm was statutorily created and not part of the common law. “Legislative bodies enact criminal statutes against a background of Anglo-Saxon common law.” Unless the Legislature affirmatively abrogated the defense for a felon-in-possession charge, the Court concluded the defense is available. Of course, that means that, once the defendant proffers a prima facie case of self defense, it then becomes the prosecution’s burden to prove beyond a reasonable doubt the defendant did not act in self-defense. The Court affirmed the Court of Appeals’ decision to remand the case to Wayne County for a new trial on the felon-in-possession charge.  Time will tell whther the prosecution will actually go forward in light of the Court's ruling.

Tuesday, July 27, 2010

Spontaneity is the Key to 803A Tender Years Exception

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 questions resulted from a “suspicion” the friend had about that “something had been going on” with Gursky towards the child. The questions asked by the friend to the child included: “if anyone had been touching her?”, “had anyone touched your private parts?”and “Who touched you?” After the child identified Gursky as the perpetrator, the friend asked more probing questions like: “What did he touch you with?” “Did he touch you any other way?” Did he touch you with his penis?” Circuit Judge Edward Servitto, over the objection of trial counsel, allowed the answers through the friend’s testimony under MRE 803A. He ruled the delay in disclosure was reasonable.

Gursky was convicted and appealed on the basis the challenged evidence should not have been admitted under the “tender years” exception, MRE 803A. More specifically, Gursky, represented on appeal by Robin Lerg, argued that the answers given by the child were not “spontaneous” because they were, in part, suggested by the questioning posed by the friend. The Court of Appeals disagreed on multiple fronts, but most notably because it found “Taken as a whole, the victim’s statements were primarily spontaneous, despite being prompted by [the friend’s] questions.”

The Court ruled that the answers from the child were clearly not spontaneous. It vacated the Court of Appeals’ ruling and rejected its reasoning. In so doing, Michigan’s highest court specifically stated it is not enough for “tender years” evidence to have simply a few “spontaneous elements” as allowed by the appellate court below. Instead, the Court ruled MRE 803A admissibility requires that spontaneity be an “independent requirement” and that it must be established that the evidence was not prompted, implied or manufactured in any way by the overreaching actions or interrogations of an adult. Since the questions posed by the adult friend here were too suggestive, the challenged answers were not admissible.

While the Court did not summarily reject the right of an adult to ask questions within the “tender years” context, it clearly emphasized any such inquiries to a child must be “…nonleading or open-ended in order for the statement to be considered the creation of the child.” If objective analysis finds the evidence resulted from the suggestion of an adult rather than the “creation of the child”, MRE 803A will certainly render the evidence inadmissible. The most important holding appears to relate to this bright-line rule: MRE 803A generally requires that the declarant-child initiate the specific topic of sexual abuse and that “…a statement prompted by an adult’s question specifically concerning sexual abuse is not spontaneous.”

J. Randall Secontine contributed to this post.

Monday, July 26, 2010

The Long Climb is Over in People v Hill

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 wrote for the majority and held, “that when the terms ‘produces’ and ‘makes’ in MCL 750.145c(2) are construed in accordance with their immediately surrounding text and with a view toward the statute’s overall organization, including a graduated scheme of offenses and punishments, a defendant may not be convicted of the 20-year felony when there is not proof beyond a reasonable doubt that he had a criminal intent to do something other than possess the CD-Rs for his own personal use.”

For any of you that have handled such cases, it seems the Court has finally rendered an opinion that takes the totality of the statute into account. It has never made any sense to me to punish someone who copies a picture from the internet with the same severity as the guy who set up the lights, recruited the victim and snapped the photos of the child. Justice Markman aptly pointed out the correct definition of the term “make” with the following illustration: “Just as a person who downloads a song from the Internet and burns it to a CD-R is not considered to have produced or made a song, so a person who burns a prohibited image to a CD-R for his personal use has not produced or made the image.” Just as the prosecution must prove an intent to deliver to differentiate between a drug user and a drug trafficker, now, it appears same must be said for child sexually abusive material cases. The prosecutor now bears the burden of proving the defendant possesses an intent to do something other than merely possessing the material for personal use.

Justices Young wrote the dissent with Justice Corrigan joining. (Justice Weaver authored her own dissent). There, he argued, “the majority opinion relieves a defendant of criminal responsibility for making copies of child pornography ‘for personal use’ and creates out of whole cloth an additional hurdle for those prosecuting individuals who make child pornography.” Justice Markman responded to the dissent, by pointing out the distinctions in the statute that go from a twenty (20) year felony to a seven (7) year felony to a four (4) year felony. He wrote, “we do not ‘relieve …of criminal responsibility’ the computer downloader when we recognize that the Legislature drew distinctions in MCL 750.145c between types of misconduct. No criminal responsibilities are being ‘relieved’ when the legislative distinctions are respected and the computer downloader of prohibited material is made subject to a 4-year term of imprisonment and the distributor of the same material is made subject to a 7-year term of imprisonment instead of the 20-year term of imprisonment reserved for the producer of the material, but for whose actions the material would never have existed in the first place. The Legislature is entitled to draw distinctions in its definitions of criminal activity, and this Court is obligated as a general matter to abide by those distinctions.”

Daniel Corrigan Grano contributed to this post.

Saturday, June 19, 2010

Derror Has Died - Will Stare Decisis Survive?

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 conditions in order to avoid hitting the victim.

The trial court refused to allow the defense to present the jury with evidence of the victim's BAC, holding that it was irrelevant to the issue of proximate cause.  In reversing, Justice Cavanagh ruled that, because proximate cause is an element that must be proven beyond a reasonable doubt, denying the defendant the opportunity to present evidence of the victim's intoxication undermined the reliability of the verdict.  The Court cautioned, however, a number of times, that their decision should not be construed as allowing the admission of a victim's BAC every time it comes up.  The defense would still have to demonstrate a reliable theory that the victim engaged in gross negligence or intentional conduct in order to make the intoxication of the victim relevant.  Here, with the victim walking down the middle of a busy roadway on a dark and stormy night when a sidewalk is nearby, it was arguable that the victim's conduct was grossly negligent.

So the Court remanded the case to Washtenaw County for a new trial.  That should have been it, one would think.  But we need to remember Justice Cavanagh's impassioned dissent in People v Derror, decided almost 4 years to the day in 2006.  Because the defendant was likely to be tried again on the same three charges, the majority decided to address again whether 11-carboxy-THC was a schedule 1 controlled substance as defined under the Public Health Code.  This time, switching Justice Hathaway for former Justice Taylor, the Court took an about face and held that a defendant cannot be prosecuted for operating with any schedule 1 controlled substance in their blood if the prosecution's only proof is the presence of 11-carboxy-THC in a sample of blood taken from the defendant. 

All of the same reasons posited by Justice Taylor four years ago in his dissent in Derror now formed the basis for overturning Feezel's conviction for operating with any schedule 1 controlled substance in his body causing death.  11-carboxy-THC is a metabolite, not an active ingredient in marijuana that causes a euphoric effect.  In denouncing the Derror decision as wrongly decided, Justice Cavanagh held the following: that our drug laws are to be interpreted so that they closely match the federal system, "specifically, the majority failed to interpret MCL 333.7212 in a manner consistent with federal law, ignored the factors the Legislature indicated should be used to determine whether a substance should be classified as a schedule 1 controlled substance, and ignored the Legislature’s definition of “marijuana” and the Legislature’s list of schedule 1 controlled substances, which do not contain the term “metabolite” or the full or any abbreviated name of 11-carboxy-THC. When MCL 333.7212 is interpreted in the context of the statutory scheme, it does not appear that the Legislature intended for 11-carboxy-THC to be classified as a schedule 1 controlled substance." 

As right as the conclusion is, (the discovery of a THC metabolite in someone's blood says nothing about their ability to operate a motor vehicle safely) I think the court's abandonment of the Derror decision so quickly really calls into question the very validity of stare decisis.  Justice Young's partial dissent rails against the majority for its apparent infidelity to stare decisis and I think he brings up a good point.  "The justices in the majority can say what they will about their commitment to stare decisis, but the fact that they reach the issue raised in Derror when the facts of this case do not require this Court to address it puts to rest any semblance of principle in their positions."  He cited a 2002 opinion, Pohutsky v City of Allen Park:  “[I]f each successive Court, believing its reading is correct and past readings wrong, rejects precedent, then the law will fluctuate from year to year, rendering our jurisprudence dangerously unstable.”  I agree, and we will have to wait and see how the new Court handles these issues in the future.

Sunday, April 11, 2010

My Interview with Justice Maura Corrigan

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 podcasts will be available on iTunes so that they will be fully downloadable to your iPod or iPhone and completely mobile. You will be able to listen to our interviews of interesting guests who will share their insights and provide information for and about lawyers and the law in general. I hope you enjoy this added feature and please feel free to leave comments and suggestions so that we can improve the site and offer interviews with guests that you would like to hear from.

Thursday, March 25, 2010

Arrests, confusion grow from Michigan's murky law on marijuana

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 more plants than allowed, Roseville Deputy Chief James Berlin said. But mistakes are made, Berlin said.  "We may spend three weeks investigating, and then bust in and traumatize people, only to find out they're legal."

When narcotics investigators burst in last month on Richard Brace in Hazel Park, he didn't have the state card approving him to use medical marijuana that he'd applied for Jan. 9.  Brace, 66, said he was baby-sitting his 7-year-old granddaughter when he heard yelling outside.  "I was getting ready to put her to bed, and all at once, there's a bam-bam-bam, 'Police!' Just as I open the door, they shove that ram through and totally shattered my storm door, all over the living room floor -- even got some glass on my granddaughter," he said.  After being handcuffed and questioned, Brace said he finally talked police out of arresting him by bringing out the paperwork showing he'd applied for his official medical marijuana identification card. As of Wednesday, he still hadn't received it.

Across Michigan, medical marijuana patients like Brace, as well as caregivers -- those allowed to provide marijuana to patients -- are waiting months for the state to issue the registry identification cards that prove they can legally possess the drug.  The backlog in Lansing is so bad, in part because of staff cutbacks, that cards went out last week to people who applied in early December, the Michigan Department of Community Health said.

Without the cards, patients and caregivers risk arrest and confiscation of marijuana by police, who for decades declared all marijuana users to be enemies in the war on drugs.  As of last week, nearly 21,000 Michiganders had applied to be approved medical marijuana patients or caregivers, the Department of Community Health said.  As a temporary card, a copy of the application can "serve as a valid registry identification" if the actual card isn't available after 20 days, the state's Web site says. But dozens of approved patients and caregivers have had their medicine seized by police, attorney Michael Komorn said. Many police departments -- including Roseville's -- don't accept the application paperwork as proof, Komorn said.
"If they don't have a card and they're in possession of marijuana, they're coming to jail," Roseville Deputy Chief James Berlin said. "And if they applied for the card, we'll let the judge decide" if a law was broken.  According to state law, "Any registered patient who possesses a permissible quantity of marijuana -- up to 2.5 ounces -- can't be arrested and can't have their marijuana taken away," with some exceptions, such as smoking while in a public place or on school grounds, said Dan Korobkin, a lawyer with the American Civil Liberties Union.  Still, "I advise my clients, 'Don't tell anybody you're a patient or caregiver. Don't tell anybody you're growing this,' " Korobkin said. "Because the police treat this as if it's all illegal."

In the raid on Brace's house in Hazel Park, "They said they were looking for a dealer. I said you've got to be joking," the retired optical-supply salesman said. He has spinal stenosis, a painful back ailment that he said is eased by marijuana.  Police let him keep the half-ounce of marijuana he revealed in a drawer, but without explanation, they took a small amount from his basement, Brace said. He was left to repair his door and a shattered sense of security.  That raid was "a waste of police time and taxpayers' money," Hazel Park Lt. Michael Kolp said. Afterward, the police involved -- from the Hazel Park force and an Oakland County narcotics team -- "realized it was a medical marijuana case," Kolp said.  "The problem is, we have no way to know that in advance," so police must treat every raid "like it's a drug house" with armed dealers inside, he said.
A glitch in Michigan's medical marijuana statute is that legal experts generally say that it forbids dispensaries -- storefronts that sell marijuana to patients, Wayne State University law professor Robert Sedler said.  Sedler, an expert on constitutional law, returned last week from suburban Los Angeles, where "all we saw were dispensaries, practically on every corner," he said.  In Michigan, "People have to grow it themselves, so there always will be an issue: Are they growing this for medical use" or to sell on the street? he said.

Obviously, a lot of questions are yet to be answered.  I wonder what liability the Roseville Police Department may incur, instituting a policy of arresting everyone and letting a judge sort it out later, perhaps after 72 hours in jail.  Any thoughts?

Monday, March 15, 2010

Federal Sentencing after Booker on SCOTUS Blog

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 “business as usual” judges continue to sentence below the guideline range at essentially the same rate as before Booker, while other judges now sentence below the guideline range at triple or quadruple their pre-Booker levels. This is a very interesting article and well worth a read for those who are interested in the Court’s recent Sixth Amendment jurisprudence.

Friday, March 12, 2010

COA to Cox: "You're fired!"

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 rights case against Plants, the two officers, 13 other defendants and Judge Waterstone, claiming that the judge and the others violated his due process rights by knowingly allowing the admittedly perjured testimony to go unchallenged.  The Supreme Court, as is routine, directed the AG to represent Judge Waterstone in defending the allegations.  Steve Cabadas of the Public Employment Elections and Torts division of the office, spoke to Judge Waterstone on three separate occasions and filed an answer to the complaint, denying all the allegations.  Aceval's lawsuit was subsequently dismissed for failing to provide the court with a valid address.

After accepting the assignment to investigate and prosecute the case, the AG assigned Assitant AG's Bill Rollstin and John Dakmak to the case.  First, an investigator went to Judge Waterstone's home, had afternoon coffee with her and interviewed her, implying that the investigation was targeting APA Plants and the others, never telling her that she was a target of the investigation.  Next, the AAG's issued the judge an investigative subpoena and she appeared at the Detroit office, waived her right to counsel and answered their questions surrounding Aceval's trial. 

Because of the conflict of interest in prosecuting a former client of the AG's office under MRPC 1.7, 1.9 and 1.10, Judge Waterstone moved the 36th District Court to disqualify the Attorney General and dismiss the complaint prior to any testimony being taken.  The District Court denied the motion, Judge Kenny affirmed and the Court of Appeals denied the application for leave to appeal.  The Michigan Supreme Court, however, remanded the matter to the COA as on leave granted on the conflict of interest issue only. 

AG Cabadas, in an attempt to persuade the court that no confidential communications from Judge Waterstone were ever divulged to either Rollstin or Dakmak because she never confided anything to him, submitted an affidavit to that effect.  The Court, however, held that Cabadas' affidavit was "disingenuous" in light of Judge Waterstone's contrary affidavit and the answer he filed to Aceval's complaint.

MRPC 1.9 dictates that an attorney may not represent a new client whose interests are adverse to an old client in the same or substantially related matter, unless the client waives the conflict and consents.  MRPC 1.10 states, in addition, that no lawyer in a firm can represent a client in violation of MRPC 1.9.  Here, the Court inferred that confidential information was communicated from Cabadas to Rollstin and Dakmak, especially in light of the unusual circumstances of a judge being prosecuted.  "The Attorney General has an affirmative duty to perform a conflict check before undertaking the prosecution of a judge or other person whom the office is statutorily required to defend."

A criminal defendant bears the burden of establishing that she has been prejudiced by the dual representation and, here, the Court found that she was.  The AG's investigator's tactics in getting a statement from Judge Waterstone were, according to the Court, disturbing.  He sat down for coffee with her in her home, surreptitiously recorded the conversation, never told her that she was the subject of the investigation and implied that she was not when she asked.  The Court held, regardless of what agency would ultimately prosecute the case, the statement could not be used.

Ultimately, the Court found that the Michigan Attorney General was conflicted out and order the entire office to withdraw from the prosecution.  It will be interesting to see how this matter plays out, given that the AG is not conflicted when it comes to Plants and the two officers.  Does the prosecution continue with the AG prosecuting three of the defendants and a separate prosecutor representing the People only as to one?  What county will now take this matter when four have already declined?  We will keep you posted as to any new developments in this interesting case.

Saturday, February 20, 2010

Roscommon Circuit: "I am not going to go there."

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 other reason to depart from the guidelines, and, even though the prosecution argued that numerous other factors did exist to justify the departure, the Court held again that a trial court must articulate those reasons on the record and not rely on the COA to ferret out those factors on its own after the fact. Therefore, the Court remanded the case to the Roscommon Circuit Court with the instructions that it impose an intermediate sanction or articulate any factor that is substantial and compelling sufficient to justify a departure from the guidelines.