Michigan Supreme Court Blog

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 i...

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 impos...

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 ...

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 medic...

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...