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, May 19, 2017

Do Jurors Favor Police Testimony?

Criminal defense lawyers face this question every day in the courts across the land. When a police office testifies in uniform, does his or her stature as a law enforcement professional add credibility to that testimony?

Our friend Neil Rockind has made a cottage industry out of effectively cross-examining the police. His prepared and relentless style and his "at war" approach to this difficult task makes him one of the best in the industry.

Recently, CNN covered this important topic that has had consequences locally and nationally in some of the high-profile police shooting cases. In this story, CNN covers the new ingredient now involved in many cases where a law enforcement officer testifies: video evidence.

If a jury is inclined to lend credibility to an officer, whether because of their uniform or their professional law enforcement status, does video evidence sway their view toward seeing the truth? Seeing what really happened in a given incident is a very useful "truth-tool" in many cases.

Other recent cases have also poked holes in the officer's credibility. For example, consider the Livingston County double murder case of Jerome Kowalski. He is considering post-conviction motions while he awaits the completion of an investigation into whether the officer in charge of his murder trial -a Michigan State Police detective- was having an affair with the judge presiding over his case: Judge Theresa Brennan.

In Kowalski's case, the detective's admitted affair with the judge casts doubt on the credibility of the officer. As an officer-in-charge, the detective did not actually provide testimony in the murder trial. On the other hand, there certainly is the appearance of impropriety when the detective is carrying on an illicit affair with the presiding judge in the case.

When a police officer is charged with a crime, or accused of using excessive force, jurors are asked to directly assess the officer's credibility. Many jurors are reluctant to second-guess an officer's split second decision regarding whether to use deadly force in a violent street encounter.

Each case will continue to be decided on its own merits. The thin blue line is getting even thinner.

Post #592

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Tuesday, May 9, 2017

Judge's Affair With Detective Could Cost Seat on Bench

Embattled Livingston County
Circuit Judge Theresa Brennan
Over the years, lawyers have emerged from Livingston County Judge Theresa Brennan's courtroom with a common complaint: treated by the judge with disrespect.

Many lawyers have reported being profoundly embarrassed and humiliated, often in front of their clients. One of our associates witnessed Judge Brennan berate her own clerk in highly unflattering terms in front of a packed courtroom.

Last week, however, it was Judge Brennan's turn to be profoundly embarrassed. During a court session, Michigan State Police detectives entered her courtroom while Judge Brennan was on the bench and on the record, in order to seize computers from her court and chambers. She is reported to have quickly left the bench, and left the court for the rest of the day.

The following day, electronic devices were removed from her home. Although it is unknown what data is stored on the devices, we here at the Law Blogger have a darn good idea.

The Detroit Free Press surmises that charges from the Michigan Attorney General could come at any time. So what is all this fuss about?

Judge Brennan presided over a double murder trial back in 2013. Subsequent to this murder trial, she went through her own divorce. During the divorce, her former husband asserted that Brennan was having an ongoing affair with a MSP detective; the officer in charge of the murder case.

Brennan did not deny the affair. Both Brennan and the detective claimed in divorce depositions, however, that their tryst did not commence until after the double murder trial was completed.

Now, her assertion in this regard will become the focus of the MSP investigation. Press reports indicate that Brennan made more than 3 dozen calls to her lover during the course of the double murder trial, including one on the day prior to the sentencing hearing.

She could be charged by the Attorney General with perjury and obstruction of justice. She could also be the respondent in a complaint brought by the Judicial Tenure Commission.

When it comes to judges, like other public officials, the initial sin is one thing; lying under oath to cover-up that sin is another grave transgression. We think that is what the AG is delving into this week; expect criminal charges soon.

If the AG brings criminal charges, a conviction could result in a jail term for the bold and pompous judge. Many legal professionals see this as "karma juris".

Meanwhile, Judge Brennan was on the bench yesterday, apparently unfazed by the cloud hovering over her professional standing. Litigants, for the most part, were nonplussed to be on the receiving end of any decision from a jurist under severe scrutiny for perjury or obstruction.

What a complete mess. We here at the Law Blogger believe the best thing for Judge Brennan to do is to immediately step-down while she is under this investigative cloud.

The odds are that once she leaves the bench, she will not be coming back. Most lawyers will not be disappointed to see her go.

Good riddance as judges must be held to a higher standard. We will keep you posted on the developments of this one...

Post #591

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Saturday, May 6, 2017

Federal Judge Eliminates Bail for Misdemeanors

In Huston last week, a federal judge enjoined the judges of Harris County, Texas from issuing bond orders for misdemeanors. The judge, in a detailed opinion, found that the bond system disproportionately affected the indigent.

The ruling in the civil rights lawsuit came after 8-days of trial and over 300-plus exhibits. Federal judge Lee Rosenthal found that holding accused misdemeanants on a relatively high bond until resolution of the case violated the equal protection and due process provisions of the U. S. Constitution.

One case featured a working mother charged with driving on a suspended license; her bond was set at $2500. When she was unable to make bond, she spent two weeks in jail while her case resolved, at great hardship to her family and children.

Judge Rosenthal found that the Harris County bond system featured "wealth-based discrimination", and violated due process during the pretrial detention phase of a case.  The civil rights lawyers that brought the case presented statistics supporting their contention that 40% of people charged with misdemeanors wound-up sitting in jail the entire time their case remained pending; in some cases, up to a month.

An interesting feature of the case was that nearly all of the evidence presented came from the county clerk's office; court records like the bond orders and the register of actions indicating whether the accused posted the bond.

Although her injunction is temporary, legal scholars believe the ruling will stand. Depending on how far it goes on appeal, the ruling could set a new constitutional standard in criminal procedure regarding pretrial detention for misdemeanors.

Here in Michigan, we have had a movement to eliminate jail as a sanction for misdemeanants that cannot pay court costs and fines. The Texas case is significant because it deals with detention prior to any conviction or other adjudication.

Post #590
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Friday, May 5, 2017

Retirement Looms for Justice Anthony Kennedy

At age 80, Justice Kennedy certainly would be well within his right to retire from the SCOTUS. Rumors flew again this week when Kennedy's annual law clerk reunion was advanced to early June, fueling speculation that he will not be on the bench for the October term.

For his part, Justice Kennedy is not saying anything about retirement, leaving it to speculation as to when, if ever, he may retire.

Justice Kennedy's retirement would provide President Trump another opportunity to bolster the conservative block on the court. And when Kennedy retires, could Justice Ruth Bader Ginsburg be far behind. President Trump could possibly fill three seats on the court in his first year in office.

While all this is going on, many court observers have noted Chief Justice John Roberts' slow and quieet slide to the center. A George Bush appointee, Justice Roberts has disappointed some conservatives by becoming the new "median vote"; a role long-held by Justice Kennedy.

If Trump appointees make-up a third of the High Court, many legal scholars expect a renewed legal battle over women's right to abortion. With 5 solid conservative justices on the High Court, the seminal case of Roe v Wade could be in jeopardy.

Stay tuned; we will continue to track the rumors and innuendo emanating from the SCOTUS this summer.

Post #589
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Tuesday, April 18, 2017

Government Positions on Marijuana Evolve

While the federal government turns its back on recreational marijuana, Michigan is prepared to blow the lid off medical marijuana production and dispensation. Government's relationship to the plant continues to evolve.

This blogger recalls when medical and recreational marijuana laws began to sweep the country nearly ten years ago. Back then, a key USDOJ memorandum indicated that President Obama's Attorney General directed the corps of United States Attorneys not to devote resources to marijuana prosecutions in states that legalized the controlled substance for either medical or recreational use.

The Trump Administration, especially through Attorney General Jeff Sessions, has signaled an end to the hands-off approach of its predecessor relative to recreational use of marijuana. This poses a huge roadblock to continued industry growth.

In Detroit, only two of over two hundred applications to operate medical marijuana "centers" were recently approved. The City has taken rigorous actions to shut down the unlicensed -and heretofore thriving- dispensaries. One of our clients reported that a cease and desist letter was tacked onto the door of his shop last month.

Meanwhile, just across the Detroit River, Canada is considering nation-wide legalization in all 9 of its provinces. This is the equivalent of removing marijuana from Schedule 1 of the Controlled Substance Act.

As an industry, marijuana is poised to explode as state laws across the nation are relaxed and as decriminalization takes place. In most medical and recreational use states, industrial warehouse space is suddenly in high demand as skilled growers seek adequate space to produce marijuana.

Some prospective licensees are willing to spend over a million dollars to re-purpose a warehouse for high-output marijuana production. Investors are tripping over each other to prepare for the rare state licensing opportunities that will unfold in December.

Just 8-months before taking applications for 500 and 1000-plant grow licenses and dispensaries, the State of Michigan is poised to earn millions in tax revenues from this relatively new industry. The state's Department of Licensing and Regulatory Affairs [LARA] is gearing up for the new license applicants this December, creating the Bureau of Medical Marijuana Regulation.

The problem for legitimate industry growth continues to be inclusion of marijuana on Schedule 1. As long as marijuana is illegal under the federal Controlled Substances Act, the banks and insurance companies, so vital to industry growth, will remain on the sidelines and marijuana will continue to be a predominantly cash-based industry.

This problem will not stop the artisans that have been growing high-quality marijuana over the past decade. Like craft beers, they will continue to produce a product for which demand seems high and insatiable.

If you need to explore your options regarding the acquisition of one of the several state licenses soon to be available from the State of Michigan, give our law firm a call to schedule a free consultation.

Post #588
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