Blogs > The Law Blogger

The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
For more information email: info@clarkstonlegal.com

Friday, February 5, 2016

Prohibition of Juvenile Life Sentences Applies Retroactively

Juvenile lifer Ray Carp
A few years ago, we tracked the Miller v Alabama case as it went to the SCOTUS to decide whether juveniles could be given life sentences. The Court said such sentences were unconstitutional but did not address whether the decision applied retroactively; i.e. to inmates long-ago convicted when they were juveniles but who still remain incarcerated several decades later.

The SCOTUS decision from last month in Montgomery v Louisiana held that the ban against life sentences for convicted juveniles does apply retroactively and in dicta, urges the states that have refused to release such convicts to parole them as soon as possible. Michigan, along with 5 other states, has refused to apply the Miller ruling retroactively, keeping all of their juvenile lifers locked-up.

A close read of the 6-3 opinion in Montgomery shows that the SCOTUS has not only retroactively applied the juvenile lifer ban to all past state and federal sentences, it also strengthened its ruling in Miller.  The legal scholar Lyle Denniston of SCOTUSBlog puts it this way:
The new decision does make Miller retroactive to cases that were final before the date of that ruling — June 25, 2012.  But it also appears to go beyond the actual scope of the Miller ruling, by strengthening the chance that a newly convicted juvenile will be able to show, at the time of sentencing, that he is not beyond rehabilitation to become a law-abiding individual.  Life without parole, the Court declared, is always unconstitutional for a juvenile unless he or she is found to be “irreparably corrupt” or “permanently incorrigible.”
The Michigan Attorney General has actively resisted applying the juvenile lifer ban retroactively. The AG asserts that the sentences were constitutional when imposed and that the focus should be on the crime victims, not the murderers.

There are approximately 350 persons in Michigan that are in a position to be re-sentenced or paroled. Among them is Raymond Carp, who perhaps has the most questionable conviction of this select group. Carp was the subject of one of our 2014 posts; his conviction, although it withstood a lengthily and withering appeal, arguably was a result of "guilt-by-association"; his co-defendant was a much older mastermind of the murder in which he was entangled.

Now, Carp, along with the other juvenile lifers here in Michigan actually stand a chance at parole.

Post #522

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Wednesday, February 3, 2016

State Police Lab Target of Defense Counsel's Department of Justice Complaint

In early November, I attended an excellent panel discussion on the topic of medical marijuana put on by the Oakland County Bar Association; the 1/2 day seminar addressed the topic from the perspective of medical marijuana card holders that desired to legally grow their businesses along with their pot. The panel had an all-star cast, including our friend, preeminent defense lawyer Neil Rockind.

At the conclusion of the presentation, Mr. Rockind told the packed room to be on the lookout for a big-news-splash coming soon on the topic of blood testing for marijuana. The following month, Rockind, along with two other well-known medical marijuana lawyers, filed a complaint with the U.S. Department of Justice's Office of Investigative & Forensic Sciences.

The primary thrust of this complaint accuses the Michigan State Police crime laboratory with negligence and, worse, intentional deceit. The complaint, in a 7-page letter to the DOJ forensic office's director, alleges that the lab is influenced by the state prosecutor's association in its method of reporting lab results such that a report that would normally support a misdemeanor charge [i.e. use of marijuana, or driving under the influence of drugs] is elevated to a felony [i.e. possession or manufacture of synthetic marijuana].

In doing so, Rockind characterizes the prosecutor's influence, in getting the lab to deviate from established scientific principles, as political; the crime lab has become politicized. The result is that a scientific lab now produces forensic reports that support a felony rather than a misdemeanor conviction.

Toward the end of the complaint, Rockind requests an audit by the DOJ's forensic office pursuant to General Accountability Office standards, as well as a Michigan State Police internal affairs investigation, apparently already underway.

If his allegations are proven, then it does give us grave concerns over here at the Law Blogger that forensic crime labs, tasked with getting to the scientific truths of a specific case, can be influenced in their reporting methods by a political organization like the prosecutor's association. We will certainly monitor this file as it moves through the DOJ.

Post #521

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Sunday, January 24, 2016

Michigan's Gender Reassignment Policy Challenged in Federal Court

Now that the dust has settled on the marital equality struggle in favor of same-sex marriage, the frontier of civil rights litigation has been usurped by transgender individuals. Last May, an unusual civil rights law suit was filed against the Michigan Secretary of State in federal court by a group of transgender individuals regarding the proper gender assignment of their drivers' licenses.

According to the Plaintiffs in Emani Love vs Ruth Johnson, the problem arises when, following gender re-assignment surgery, they seek to change their official gender on their drivers licenses. In most cases, the process is difficult if not impossible, leading to embarrassment, invasion of their privacy, and other damages according to the plaintiffs.

These civil rights plaintiffs claim they are forced to rely on state-issued identification that does not conform to their new reality, or to their physical appearance. This "outs" these individuals to strangers and, they say, places them at great risk of harm every time they produce their identification.

Like in the martial equality debate, the Michigan Attorney General has defended the state policy, recently filing a motion to dismiss the case. The AG argued that the allegations set forth in the complaint, even if true, failed to set forth claims of constitutional dimension.

In November, however, federal judge Nancy Edmunds denied the AG's motion, concluding that a valid privacy claim was lodged. Judge Edmonds' 15-page opinion and order cited to the American Psychological Association's definition of the term:
transgender is an umbrella term for persons whose gender identity, gender expression or behavior does not conform to that typically associated with the sex to which they were assigned at birth.
The state's policy regarding changing the gender on one's drivers' license or state identification card is for the individual to provide a birth certificate showing the gender; a passport is specifically excluded and the policy is clear that a birth certificate is the only document that controls the gender field.

Whether an individual can change their birth certificate to reflect their gender reassignment depends on where they were born. In Michigan, the state will amend a birth certificate reflecting a new and different gender if they undergo gender reassignment surgery.

In some states, however, this option is not available as amended birth certificates simply are not issued, even in cases of gender re-assignment surgery. Judge Edmonds noted that this policy creates different sub-classes of individuals depending on where they were born.

In their complaint, plaintiffs cited to statistics of the high-rate of hate crimes directed at transgender individuals in support of their claim that they suffer real harm based on the state policy. The Attorney General claimed that such harm was pure speculation.

Some of the claimed harm was not speculative. The complaint details how one of the plaintiffs, now living as a man, had the bar tender repeatedly address him as "ma'am" after inspecting his drivers license; another plaintiff had a grocery store clerk proclaim, "that's not you" when she was attempting to get through a crowded check out lane.

The federal government only requires a person to supply a physician certificate that the individual has undergone appropriate clinical counseling about gender re-assignment in order to change the gender of their passport. Also, 25 states and the District of Columbia do not require gender re-assignment surgery in order to change the gender filed of their drivers license or state identification card.

In keeping the case alive, Judge Edmonds rejected the AG's logic. So now the matter proceeds to a bench trial; no jury demand was filed.

We will keep you posted on this interesting case.

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Post #520





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Saturday, January 23, 2016

Modern Divorce in Communist China

Like here in the West, the once-solid traditional concept of family and the institution of marriage has been placed under great stress in China; a country where, for centuries, marriage was universal and mostly permanent.

Social trends affecting the family have been directly engineered by the modern communist state in China [like the one-child policy] as well as indirectly [as in the massive urbanization push of the past five years]. Add Internet access for over a billion people and, watch the infidelity rate, along with the divorce rate, increase significantly.

Until 1994, the Chinese divorce petitioner was required to produce an employer's or community leader's endorsement before a decree would issue. Community leader translates as: the local apparatchik.

In modern China, the lid is now blown-off the divorce process. Today, if husband and wife agree, it is nothing more than a brief administrative detention.

Divorce is handled in China at the district government bureau level. Some cases only take a half hour at the dingy bureau offices and cost the equivalent of a buck and a half. Yes, that's one dollar and fifty cents.

No lawyers, of course. Property has always meant something different in communist China; property is always handled by the government in China. When it comes to divorce, China's separate property laws favor men who more often take advantage of property gifted to them by their parents, even during the marriage; such property remains the husband's separate estate under Chinese divorce laws.

America has the highest divorce rate among developed Western countries; China's divorce rate is fast-approaching ours, with 3.6 million million Chinese couples calling it quits in 2014.

The Chinese government's internal migration effort has been characterized as the largest and most profound in human history. This massive displacement has put a lethal amount of stress on millions upon millions of marriages in modern China.

Another factor related to China's increasing divorce rate is the effect of the Internet and social media on women's awareness of their rights in a divorce; not ever a topic for consideration in Mao's era and through the 1980s. Today, women initiate over half of all Chinese divorce filings.

Let's not forget, however, that China still has a component of its population adhering to Confucian-style family values and the multi-generational family structure. Divorce and separation are seen by the more mature generations as a moral failure, often caused, at least in part, by creeping Western influences.

For the young and recently urbanized, infidelity is a new-found freedom and [possibly arranged] marriages are left behind, along with their parents' village. Another factor to consider within the urbanization context is that men still cannot legally marry in China until age 22, the oldest such restriction on the planet.

So the immediate outlook is that China, along with the United States, will lead the world in the rate of divorce. This is probably not a good thing; it is a seemingly inescapable fact of life in the developed world.

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Post #519


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Thursday, January 21, 2016

Clarkston Credit Union Chief Charged With Embezzling Millions

Clarkston Judge Joe Fabrizio
Earlier this month, everyone took note of the Powerball lottery, especially when the prize eclipsed a billion dollars. Easy money if you are the lucky winner.
With all that going on, the latest case to catch our eye here at the Law Blogger is the local story of Michael LaJoice, a former CFO for the Clarkston-Brandon Credit Union and owner of the Chasse Ballroom. Rather than wait for a winning lottery ticket that may never come, Lajoice allegedly devised a plan to siphon huge amounts of cash from the credit union just up the road from our law firm.

In early January, Mr. LaJoice turned himself in to the Oakland County Sheriff's Department after an audit revealed inconsistencies in his accounting. Current criminal charges pending in Oakland County allege 14 felony counts that LaJoice embezzled over $100,000, which is a statutory threshold; the actual number could be well-over $30 million.
The case began right next door to our law office in Clarkston's 52-2nd District Court; Judge Joseph Fabrizio is presiding over the preliminary proceedings.
LaJoice is well-known in our neighborhood for his ownership and operation of the Chasse Ballroom and Latin Dance in Fenton, as well as LaJoice Properties, LLC. LaJoice purchased a lot for $1.2 million in downtown Fenton last June. Development of a new state-of-the-art dance studio on this lot was slated to begin in February, but we aren't holding our breath.
The popular Chasse Ballroom is now closed for business, with a sign on the door apologizing for the inconvenience. There is no word yet as to when LaJoice's business will reopen and the ubiquitous Chasse Ballroom billboards, TV commercials, and radio spots have all but disappeared.
Defending embezzlement cases requires a skilled attorney experienced in handling the volume of evidence generated by electronically transferring funds from multiple accounts. LaJoice is represented by our friend, Michael Manley, a prominent Genesee County defense attorney.
Manley has requested a competency exam for his client on the basis of LaJoice's emotional state combined with the magnitude of the alleged amount embezzled. If Manley convinces Clarkston Judge Joe Fabrizio that his client may be incompetent to stand trial, the court will order a forensic examination to aid in making a determination of LaJoice's mental competency.
Competency and sanity are two different things in the Michigan criminal justice system. The competency examination would determine whether LaJoice has a rational and factual understanding of the proceedings against him and whether he is able to rationally consult with his lawyer to assist in his defense. He will also likely be evaluated for criminal responsibility.
If the exam leads Judge Fabrizio to conclude that LaJoice is incompetent to stand trial [not likely in our opinion], the court then must determine whether there is a substantial possibility that he will become competent within the next 15-months. If that possibility exists, the court will order that LaJoice get the treatment necessary to become competent to stand trial.
If Manley's motion is granted, expect a lengthy delay in the case while LaJoice undergoes a detailed psychological examination. The Center for Forensic Psychiatry is not known for moving quickly, nor should it, given the important role its evaluations play in our legal system.
The amount of money allegedly embezzled in this case is staggering. Usually, such illegal gains come to light eventually, as in this case. With hindsight, LaJoice would have been better-off purchasing Powerball tickets, but then, of course, he would not have been the toast of the town over the past decade.
We here at the Law Blogger can’t help but wonder whether he now thinks it was worth it. What a colossal mess!
Post #518

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