Friday, November 11, 2011

Networking Can Be an Ethical Landmine - Be Careful

I am re-posting an interesting blog authored by Roy Ginsburg, a lawyer coach in the areas of business development, practice management and career development/transitions.  Mr Ginsburg highlights some areas of which to be aware when utilizing referral sources to obtain clients, in a guest blog for Solo Practice University.

Read the blog by clicking here.

Wednesday, November 2, 2011

The Parole Process in Michigan

I have often had many questions regarding the parole process at the Michigan Department of Corrections, as I am sure many others have.  Yesterday, the Michigan Court of Appeals released their opinion in the case of People v Raymond Haeger, ____ Mich App _____ (Docket No. 297099, November 1, 2011), and the opinion provides a very detailed look and the Michigan Parole Board's responsibilities in making parole decisions and the steps the Board must take in order to render a parole decision.  In particular, the Court stated, "The MDOC recently implemented the Michigan Prisoner Reentry Initiative (MPRI), which is 'designed to promote public safety and to reduce the likelihood of parolee recidivism,' and to  'improve decision making  at critical decision points,' such as when the Board is considering whether to release a prisoner from incarceration on parole.  Under the MPRI, the MDOC and Board are now required to prepare and consider additional reports, and in particular the Transition Accountability Plan (TAP)."

If any practitioner has clients in need of advice, or family members of clients wishing to understand what lies ahead for an incarcerated loved one, Judge Gleicher's opinion is a good road map.  In Haeger's case the record contained no evidence that the Parole Board had considered or even prepared a TAP, and, therefore, the Court affirmed the Alpena Circuit Court's reversal of the parole decision.  Incidentally, the Court of Appeals had initially denied Haeger's in pro per delayed application for leave to appeal but the Michigan Supreme Court remanded the matter to the COA to consider the merits as on leave granted.  The Attorney General intervened on behalf of the Parole Board and the appellee was represented by Edward Black.

Monday, October 10, 2011

Diluted Drug Is Affirmative Defense, Not Element of Crime

The Michigan Court of Appeals recently found that a defendant’s claim that the Ketamine he possessed was too diluted to satisfy a violation of the law was an affirmative defense, not an element of the crime that the prosecution must prove beyond a reasonable doubt.  In People v Hartuniewicz, Docket No. 298163 (September 29, 2011), the Court analyzed the basis for the exception found in the statute and concluded the defendant must establish the defense.

The Public Health Code proscribes the possession of Ketamine, a schedule III controlled substance.  However, the PHC excludes controlled substances if the controlled substances are in a proportion or concentration to vitiate the potential for abuse.  Hartuniewicz argued that the burden of establishing that a substance was in a proportion or concentration that did not vitiate the potential for abuse was on the prosecution.  Therefore, because no evidence was established at the trial that the substance found was in a concentration that did not vitiate its potential for abuse, he was entitled to a directed verdict on the charge of possession of ketamine. 

Judge Gleicher, writing for the unanimous panel, disagreed.  MCL 333.7216(1)(h) prohibits the possession of any quantity of ketamine.  MCL 333.7227 excludes “A substance that contains 1 or more controlled substances in a proportion or concentration to vitiate the potential for abuse….”  The Court concluded that an exemption or exclusion under the Controlled Substances Act created an affirmative defense which the defendant was required to establish after the prosecution had established a prima facie case of knowing possession.  “Just as our Supreme Court held in Pegenau [447 Mich 278, 292; 523 NW2d 325 (1994)] , and this Court held in Dean, [74 Mich App 19, 21-28; 253 NW2d 344 (1977)]‘once the people show a prima facie violation of the Controlled Substances Act,’ the defendant then has ‘the burden of going forward, i.e., of injecting some competent evidence of the exempt status, of the drug.’”  Because the defendant never submitted the sample for any quantitative analysis nor even asked the prosecution to perform any such examinations, the trier of fact was left with no evidence upon which to conclude that the substance was not diluted to the extent that its abusive quality was vitiated.  Therefore, the trial court did not err in refusing to grant the defendant’s motion for a directed verdict or in refusing to fashion an instruction for the jury to consider.

One would think, however, in a case with sufficient question as to the level of impurity of a substance, a defendant could succeed on such a theory provided he either tests the material himself or, at a minimum, requests the prosecution to complete a quantitative analysis of the drug.  It certainly is food for thought.

Tuesday, September 27, 2011

Mandatory 25 Year Sentence Constitutional for Teacher CSC Case

Benton Tumura, a Genesee County elementary school teacher, was convicted in 2010 of having sexual intercourse with a former 6th grade student of hers.  Pursuant to the 2006 amendments to MCL 750.520b(2)(b), anyone convicted of CSC, First Degree, where the victim is under the age of thirteen and the defendant is 17 years of age or older, shall be "imprisonment for life or any term of years, but not less than 25 years."  The defendant, represented by Lansing attorney Michael Faraone, in People v Tumura, Docket No. 296721 (September 22, 2011), challenged her 25-year mandatory minimum sentence as being cruel and unusual, at least as the sentence was applied to her case.  The Court of Appeals, in an opinion written by Judge Jane Markey, and joined by Judges Deborah Servitto and Kirsten Frank Kelly, affirmed the sentence.

The Court reviewed the factors set forth by the Michigan Supreme Court in People v Bullock: one, the severity of the sentence imposed and the gravity of the offense; two, a comparison of the penalty to penalties for other crimes under Michigan law; and three, a comparison between Michigan’s penalty and penalties imposed for the same offense in other states. The Court ruled that the defendant's arguments failed on all three factors.  First, the Court held "Statutory rape, a strict-liability offense, has been upheld as a matter of public policy because of the need to protect children below a specific age from sexual intercourse. The public policy has its basis in the presumption that the children’s immaturity and innocence prevents them from appreciating the full magnitude and consequences of their conduct."

Second, comparing the penalty to other penalties under Michigan law, the Court found, "The perpetration of  sexual activity by an adult with a pre-teen victim is an offense that violates deeply-ingrained social values of protecting children from sexual exploitation. Even when there is no palpable physical injury or overtly coercive act, sexual abuse of children causes substantial long-term psychological effects, with implications of far-reaching social consequences. The unique ramifications that ensue from sexual offenses against a child preclude a purely qualitative comparison of sentences for other offenses to assess whether the mandatory 25-year minimum sentence is unduly harsh in contrast to other offenses."

Finally, in comparing Michigan's penalty to those of other states for similar conduct, the Court found at least 18 other states that imposed the identical penalty for CSC cases against children.  Therefore, the Court concluded that Tumura's claim of a cruel and unusual punishment for having sexual intercourse with her 12-year-old student did not violate either the Michigan or United States Constitutions.

Wednesday, February 16, 2011

Private Citizens Empowered to Select Others for Warrantless Stops

A couple of weeks ago, the Court of Appeals published an opinion discussing what has become a common method of law enforcement – pulling drivers over based upon the anonymous tip of another driver or drivers observations of erratic driving. In this day of ubiquitous cell phone use, it is not uncommon for motorists to anonymously pick up their phone and dial 911 because they believe another driver, based upon their untrained eye, may be intoxicated.

In People v Barbarich, ____ Mich App ____; ____ NW2d _____ (Docket No. 290772, February 1, 2011), a state trooper was conducting what he called a “property inspection” at Malarkey’s Pub in Southgate on St. Patrick’s Day in 2008. The parking lot was full and the pub had erected a large “party tent” on the premises. Finding nothing amiss, he pulled out onto Dix Road and headed south. Immediately after he pulled out, a woman in a red pickup truck headed in the opposite direction made eye contact with him and mouthed the words, “Almost hit me,” as she pointed at the car in front of her on the road. She then left the area.

The trooper immediately made a u-turn and turned on his lights and siren. The defendant pulled into Malarkey’s parking lot and when the trooper approached, he discovered that Barbarich was intoxicated. The trooper admitted at the evidentiary hearing on the motion to suppress that he never saw the woman in the red pickup again and that he did not observe Barbarich drive in a manner that would have justified stopping him.  The district court denied the defendant's motion to suppress evidence and dismiss the case without any comment.  Judge James Calahan of the Wayne County Circuit Court reversed and dismissed the case.  The prosecutor appealed.

Judge Kirsten Frank Kelly authored the opinion and, joined by Judge Brian Zahra, concluded that the trooper’s actions in stopping the defendant were reasonable for Fourth Amendment purposes based upon the woman’s “action of pointing to the vehicle in front of her” which the court concluded was “sufficient to accurately identify defendant’s vehicle and provided precise and verifiable information to the officer, which also strongly suggests that the information was reliable.”  The court relied primarily on an 8th Circuit Court of Appeals case decided in 2001, United States v Wheat, 278 F 3d 722 (CA 8 2001), where a motorist called 911 and reported that a tan Nissan, with a license plate beginning in WOC was driving erratically in the northbound lane of the freeway. The 8th Circuit held the stop was justified without the officers witnessing any bad driving themselves, because of the quantity and specificity of the information provided by the anonymous tipster.

Judge Kelly’s opinion was not unanimous, however. Judge Elizabeth Gleicher wrote a lengthy dissent where she pointed out the significant factual differences between the specific information provided by the tipster in Wheat and the sparse information provided by the unknown woman in the red pickup here. Judge Gleicher also correctly referred to the US Supreme Court’s decision in Florida v JL, 529 US 266 (2000) which held that an anonymous tip that a young black man on a particular street corner wearing a plaid shirt was carrying a gun provided insufficient specificity and reliability to justify the officer’s approach and pat-down of the defendant which revealed a handgun. The majority did not even address the reasoning provided in the Florida v JL case.

I think that Judge Gleicher’s opening line really summed up the effect this opinion will have on the jurisprudence in the State of Michigan: “Today the majority empowers private citizens to select certain motorists for warrantless searches and seizures conducted by police officers lacking probable cause or any reasonable suspicion of criminal conduct.”

Monday, January 3, 2011

Medical Pot Cases Head to Court

An interesting article in today's Detroit News for those of you interested in the current state of the numerous medical marijuana cases currently pending in southeast Michigan:
Enforcement of state law leaves cities, defendants confused

Jennifer Chambers / The Detroit News
Several showdowns over Michigan's medical marijuana law are slated for courtrooms across the state this year as users and law enforcement officials clash over the drug's legality.
Oakland County prosecutors have until Friday to file legal arguments stating why nine people arrested in a medical marijuana raid should be tried on felony drug charges in a Ferndale court.
In a Wayne County courtroom Jan. 21, attorneys for Birmingham and Bloomfield Hills will ask to have a lawsuit against their cities moved to Oakland County, where prosecutors and law enforcement have declared medical marijuana dispensaries illegal.
And a Madison Heights couple, certified under Michigan law to use, possess and grow medical marijuana, are asking the Michigan Supreme Court to dismiss felony drug charges against them. A decision is expected this year.
In another case, federal agents want the state of Michigan to turn over records in a medical marijuana investigation of seven people in the Lansing area. The U.S. Attorney's Office is asking a judge to order the state to comply with a subpoena. In a court filing last week, prosecutors said the state is resisting because of a privacy provision in Michigan law.
These controversies stem from the Michigan Medical Marijuana Act, passed in 2008 by Michigan voters. The act approved use of the drug for people with qualifying debilitating medical conditions. It allows patients certified by a doctor to use marijuana and caregivers to grow and provide it for up to five patients.
In the Ferndale case, prosecutors are challenging the law, saying the sale and distribution of any marijuana is illegal.
But lawyers for the nine defendants who worked or were co-owners of Clinical Relief, a marijuana dispensary, are fighting the charges and asking a district court judge to dismiss the case.
An undercover narcotics officer admitted he used a phony Michigan medical marijuana identity card to make purchases at the clinic, which was raided by an Oakland County Sheriff's SWAT team in late August.
The officer said he got approval from his superiors at the Sheriff's Office and from the Prosecutor's Office before making the card. The state issues the ID cards to people certified by a physician to use marijuana to treat a medical condition.
Lawyers for the defendants said that because the state considers the cards private medical information, there is no way for a marijuana dispensary to confirm if a card is real or fake.
Judge Joseph Longo has set a Feb. 7 deadline for defense lawyers to file their arguments, court officials said. A decision in the case is expected after March.
Cities take action

Across the state, as communities struggle to interpret the law, many have enacted measures that essentially prohibit medical marijuana use, saying the drug remains illegal under federal law.

Earlier this month, the American Civil Liberties Union of Michigan sued three Metro Detroit communities over their bans, claiming they don't have the power to veto state law.

The lawsuit alleges that Livonia, Bloomfield Hills and Birmingham have violated state law with ordinances that effectively banned a Birmingham couple and other patients from legally using medical marijuana.

In an unrelated case, an Oakland County couple certified to use medical marijuana under state law are asking the Michigan Supreme Court to dismiss felony drug charges against them.

Robert Redden and Torey Clark were charged with drug possession after police found 21 marijuana plants in a raid at their Madison Heights home in 2009.

Prosecutors allege the couple possessed more than the allowable number of plants and did not keep the plants in an enclosed, locked facility as required.

Their case received attention in September after a state appellate judge wrote a 30-page opinion urging state lawmakers to take action on the "inartfully drafted" medical marijuana law, which he said clashes with other Michigan laws.
Law's consequences

Confusion over Michigan's medical marijuana law has led to patients with valid prescriptions losing their jobs or being threatened with eviction from their homes. Many federally subsidized housing complexes think they must follow federal laws or risk losing federal funding.

James McCurtis, spokesman for the Michigan Department of Community Health, which issues the state ID cards, said 83,552 applications had been sent to the state as of Dec. 10. Of those, 45,808 patient registrations were issued. The number of caregivers is not available and is not included in this number, officials said. More than 9,560 applications have been denied.

Matthew Abel, a Detroit-area attorney who specializes in medical marijuana defense cases, does not predict drastic changes to Michigan's medical marijuana law from any court rulings.

It's not certain what lawmakers will do, he said, under the new, Republican-controlled Legislature and Gov.-elect Rick Snyder.

"I think the law is going to stay intact. It's possible but unlikely that the Legislature will come to some agreement to modify the law. They need a three-fourths majority to repeal the law," Abel said. "We are looking to see what changes the new administration is going to bring to this."

From The Detroit News: