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, June 9, 2017

New Gun Law Permits Unlicensed Concealed Weapon

Yesterday, the Michigan House passed, by a 59/49 vote, a new gun law that demotes the once-required concealed pistol license to an optional certificate; a training and safety measure only.

The new law allows citizens to carry a concealed pistol without a license. No more worries for the "open carry" crowd, when a coat or a sweatshirt inadvertently covers the weapon, thereby creating felony exposure.

Lee Chatfield [R-Levering], who sponsored the legislation, asserted the basis of the legislation was that criminals were never bothered with following the gun permit laws anyway. According to its mostly Republican sponsors, the legislation is designed to provide law abiding citizens with the same rights and opportunities to bear concealed weapons.

Similarly, Jim Runestad [R-White Lake] said the new law repeals unnecessary criminal sanctions for when an overcoat covers the weapon of an arms-bearing individual. This was known as the "coat tax" among gun rights advocates.

Gun laws come and go. Even considering the Second Amendment, the manner in which one bears arms will always be regulated to a certain extent, with high criminal penalties for transgressions.

Just as the new law was passed in the state legislature, the Michigan Court of Appeals upheld a law that allows the University of Michigan to ban guns on all of its campuses. Ann Arbor has always been a league leader in blazing its own legal trail. Decriminalization of pot in the 1980s -at the height of the drug war- and the UM admission policies reviewed by the SCOTUS both come to mind.

The training involved in handling and storing a weapon safely is crucial to the process, especially when the overwhelming majority of gun owners are law-abiding citizens.

Post #595

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Thursday, June 8, 2017

Child Custody and Parenting Sea Change

For some time now, members of Michigan's House of Representatives have proposed a sea change to the Child Custody Act. Last week, Representative Jim Runestad [R-White Lake] re-introduced a modified version of his seemingly perennial child custody and parenting bill.

The attempt, this time around, is known as HB 4691 and seeks to change the spirit as well as the label of Michigan's child custody law. Runestad's bill proposes a new title to the act: the shared parenting act.


In the spirit of this truly sea changing proposed legislation, Runestad seeks to introduce a presumption into the custody act: spending equal time with each parent is in the best interests of the child. A parent seeking to overcome this presumption would need to introduce "clear and convincing" evidence that such a parenting arrangement is not in the child's best interest.


Sounds simple and reasonable enough. Yet, whenever this bill gets re-introduced each session, it is usually met with firm resistance from the organized family bar.


The Oakland County Bar Association, for example, has published the following statement in opposition to the predecessor bill to this term's attempt:

Mandatory equal physical custody would make the best interest of the child factors irrelevant and treat all families exactly the same.  It would require that both parents live in the same school district or travel distances for schooling, require the children to move frequently from house to house regardless of the child’s preference and allow any parent, including convicted felons, to demand equal parenting time. Requiring a standard of ‘unfitness’ to be found by ‘clear and convincing evidence’ directly contradicts nearly all other provisions of the Child Custody Act.  This bill again attempts to remedy a perceived problem which, in fact, does not exist.  The current custody statute(s) and subsequent case law clearly permits a court to determine when it is in the best interest of a child that joint custody, or equal parenting time, be ordered.
This bill focuses on the needs of the parent instead of the needs of the children. 
The opponents and proponents of the bill will likely be heard over the next few months while the bill is debated in the state house's judiciary committee. In recent hearings conducted in May, Wayne County Judge Richard Halloran, the current chair of the state bar's family law section, testified in opposition to the bill. Judge Halloran, like many other family court professionals, is concerned about the effect the new law will have on the ability to address the intersection of child custody and domestic violence.

Representative Runestad, however, is now the chair of the Judiciary Committee. Perhaps because of this, many family law professionals have the sense that the proposed legislation has traction this time around and could become the new custody and parenting law of the state at some point during this legislative session.

Details are always devilish. The bill also constructs a wholesale replacement of the 11 statutory custody factors -long-used by judges- with a new set of factors for the family court to consider. These new factors, according to the bill's sponsors, are designed to ensure a child's meaningful relationship with both parents.

Our good friend and appellate lawyer, Scott Bassett, a lawyer's lawyer if there ever was one, openly wonders on the state bar's family law listserve why the legislature would jettison nearly 75-years of appellate court custody jurisprudence that has developed and honed the child custody act. Darn good question if you were to ask us over here at the Law Blogger.

Some of our more jaded colleagues have stated to this blogger that the bill does nothing to eliminate custody battles; it simply changes the look of the battlefield. Also, opponents say, it puts the parent's litigation agenda over the child's genuine needs and interests.

We will monitor the bill's progress and let our readers know what happens next. Meanwhile, we invite you to post your comments on this hot family law topic. 

Post script: meetings scheduled for Thursday, June 15, were postponed yesterday.

Update: 06/21/2017 - Runestad's bill passed the judiciary committee -no surprise there- and proceeds to the plenary house for further discussion after the recess. 

Post #594



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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 some point. 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.

In addition to criminal charges, Brennan could also be the respondent in a complaint brought by the Judicial Tenure Commission. Those proceedings are civil rather than criminal.

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 MSP is delving into this week.

This bold and pompous judge is now the one who may be judged. 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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