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.
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Friday, December 12, 2014

Oakland County Prosecutor Addresses Digital Danger With Middle School Students

Yesterday, Oakland County Prosecutor Jessica Cooper addressed the students of Clifford Smart Middle School in Commerce Township about the dangers of social media and potential criminal liability for conduct involving the transmission of naked images through the Internet.  The presentation was part of the ongoing Educating Our Youth initiative at the prosecutor's office.

The prosecutor warned the students that nothing is ever deleted once posted to the Internet via social media.  She also advised that the hard drive of a computer can be seized by law enforcement and explained the trove of information that resides on such devices.

The wide-ranging talk covered sexting, how to exercise proper caution when online, and the recent case in Brandon where a student hacked into an after-school app to post violent threats that included references to the Colombine massacre.  Often, coming of age in the post-modern world now involves facing certain digital realities.

With a compelling digital backdrop for her presentation, the primary thrust of Jessica Cooper's address to the middle school students was the dangers of sexting one another.  She warned students of the serious felonies of: possession, distribution and solicitation of child sexually explicit materials and the steep penalties those convicted could face.  She cautioned students that deleting such images does not make the problem go away.

Recently, Cooper's office has exercised its prosecutorial discretion to bring charges against a large group of middle school and high school students in Rochester Hills.  The students were sending nude images of themselves to one another through their cell phones.

No one wants to witness the witch-hunt that could result from mass prosecutions of teenagers; that was not the point of Cooper's message.  Rather, the digital youth culture needs to scale back some of its reckless nubile abandon in our digital age.

We here at the Law Blogger applaud the prosecutor's efforts in the Educating Our Youth initiative.  With an overburdened schedule, Madame Prosecutor is finding the time to personally take her serious message to the youth who need to hear it the most.

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Saturday, December 6, 2014

Detroit Home Foreclosure & Auction Leads to Murder

We have all heard the news streaming from Detroit over the past half-decade regarding the effects of the real estate collapse.  In order to generate some much-needed revenue, the Mayor's office has designed several programs to demolish the thousands of vacant condemned homes across Detroit, and auction salvageable properties that have been foreclosed for non-payment of taxes.

When property owners do not pay their property taxes, Michigan law provides a foreclosure process for the county treasurer to sell the property out from under the owner, similar to a mortgage foreclosure.  In Detroit, the tax foreclosure process has taken on a Kafkaesque dimension due to the sheer volume of distressed homes and the unusual tenacity of squatters.

Just as 75,000 properties in Wayne County are being prepared for tax foreclosures and sale by auction in 2015, a father and his adult daughter were gunned-down last week when entering their newly acquired home in the bucolic Rosedale Park section of Detroit.  They purchased the home at a tax foreclosure auction and were taking possession the day after Thanksgiving.

Unfortunately for the now-deceased new home owners, the former tax-delinquent owners were either unaware of the foreclosure sale, or did not care, leaving an uninformed family member to occupy the home over the holiday weekend; he was armed and probably thought he was protecting family property.

The most discouraging aspect of this story is where the murders took place.  Rosedale Park is the largest historic district in Michigan; it's homeowner's association is nearly a century old.  Among the residents of these historic and beautiful neighborhoods -Rosedale, North Rosedale and Grandmont- are some of Detroit's leading citizens.

The percentage of distressed homes in Wayne County, especially Detroit, that have delinquent tax issues, squatters, auction complications, or outright condemnation is critically high.  Getting law enforcement from Detroit and Wayne County to coordinate these property transfers with the County Treasurer will be a challenge.

This challenge must be met, however, or more blood will flow in the "D" as new property owners clash with former property owners, and as squatters are confronted with self-help eviction methods.

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Monday, December 1, 2014

Facebook Goes to the SCOTUS Today

Only one hour of oral argument has been allotted by the Supreme Court this morning in a case testing the limits of free expression on the Internet. A federal law proscribes the transmission of threats across state lines; Anthony Elonis was charged with violating that law when, after his wife filed for divorce on the same day he was fired from his job, he posted a torrent of violent rap "lyrics" on Facebook describing how he would kill her.

Later, when a female FBI agent interviewed him about the posts, he posted similar comments about the agent.  The United States cried "foul" and charged him under the federal law that criminalizes the interstate transmission of, "any threat to kidnap any person, or any threat to injure the person of another."  Elonis was jury convicted and is doing 44-months in federal prison.

Elonis' appellate lawyers' comparisons to Eminem [he used some Slim Shady lyrics] will not doubt get the justices attention.  Comparisons to the famous rapper were made in Elonis' appellate briefs filed with the High Court.

The SCOTUS, in granting certiorari, instructed the parties to address the meaning of the federal statute at issue.  This suggests that it may be able to decide this case without fully addressing the scope of the First Amendment.

On the other hand, Elonis' lawyers are touting this case as the Internet case of the century; the Internet as a megaphone for "Everyman".  Whenever it can, the SCOTUS will attempt to avoid sweeping pronouncements of constitutional law.

The NYT Magazine had this to say about the case in the Sunday paper:
The central question for the Supreme Court will be whose point of view -the speaker's or the listener's- matters.  In essence, the court will have to decide what matters more: one person's freedom to express violent rage, or another person's freedom to live without the burden of fear?
In the recent past, the SCOTUS has held that "true threats" against harming an individual may be proscribed by statute.  In this case, the High Court has to sort through what it means to "communicate" via the Internet; and what constitutes the intent to communicate an illegal threat of harm to another.

There will be plenty of lawyers dancing on the head of that pin this morning in the chamber of the SCOTUS.  For our part, we here at the Law Blogger will watch for and report to you the decision.

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Sunday, November 30, 2014

Ferguson, Missouri: The Problem With Eye-Witness Testimony

Michael Brown
By:  Timothy P. Flynn

Here at this law blog, being trial lawyers, we fully understand the uncertainties that accompany eye-witness testimony.  Sometimes, when you think you have a case locked-up tight, a witness says some things on the witness stand you did not expect and, BAM, you're struggling to salvage your case.

It is with this in mind that I read the Sunday NYT's deconstruction of last week's grand jury non-indictment of the ill-fated and now former police officer, Darren Wilson, and the tragic death of Michael Brown.

Unlike here in Michigan, where the county prosecutors exercise what is known as "prosecutorial discretion" in making charging decisions, in Ferguson, MO, -at least in this case- a procedural tool known as a "grand jury" [consisting of 12 local individuals] was used to decide whether there was sufficient probable cause to demonstrate that Officer Darren Wilson acted illegally, or whether the evidence was sufficient to support his theory that he was in serious danger from Michael Brown, the individual he shot and killed.

Of course, I had heard snippets about the case for weeks; heard about the scheduled post-decision riots; heard about who was lining-up to protest this decision; who was allegedly race-baiting; saw President Obama address the nation.

What I really did not know were the actual facts of the case.  Here are some of the "uncontested" facts of the case:
  • the incident between Officer Wilson and Michael Brown took approximately 90-seconds and began at Wilson's police cruiser; 
  • bruising patterns on Officer Wilson's body and DNA evidence both support the officer's testimony that Mr. Brown struck the officer and attempted to take the officer's sidearm early in their encounter at the police cruiser; 
  • 2 shots were fired from the officer's weapon, leading to Brown fleeing the scene of the immediate encounter; 
  • Officer Wilson gave chase on foot; 
  • Michael Brown began moving back toward Officer Wilson; 
  • When Brown began moving back toward the officer, blood splotches on the ground prove he already had been shot at least once, and
  • More than 20 eye-witnesses to this event testified before the grand jury.
The second-half of the encounter -Brown's second approach toward Officer Wilson- is where most of the controversy arose in this case.  Of these so-called eye-witnesses, some were discredited as being flat-out not credible while others recanted their original statements on the witness stand.

Yet, the majority of the credible witnesses offered vastly divergent testimony on the key fact of whether Mr. Brown held-up his hands when, after being shot once, he moved toward Officer Wilson.  This conundrum demonstrates a basic principle of litigation: witnesses can get it wrong, not on purpose -i.e. lying under oath- but rather through the mystery of inaccurate perception.

The phenomena of inaccurate perception of traumatic events recalls a demonstration routinely conducted in college and law school classes on the subject of criminal law.  The professor will have a prearranged actor, usually wearing an unmistakable article of clothing such as a bright red cap, rush into the class moments after it begins, and steal a book or computer from one of the students, then run out.

The professor then instructs the students, who knew nothing of this incident in advance, to recount as much detail about the robber as they can with the incident fresh in their minds.  The inaccuracies are always stunning: the gender of the thief was incorrect, the color of the cap was wrong, there was more than one person, a complete lack of consensus about what actually occurred, and on-and-on.

The wildly inconsistent eye-witness testimony was not the only genesis of controversy in the Ferguson case.  Some legal experts wonder aloud why the St. Louis County prosecutor, Robert McCulloch, did not recuse himself, or was not recused by the Governor, due to a perceived bias stemming from the fact that his own father, a police officer, was killed in the line of duty.

Other so-called legal experts [usually law professors rather than actual criminal defense professionals] see a weak prosecution -by design- in calling Officer Wilson at the outset of the proceedings rather than holding-off on his version of events until the dozens of other witnesses had completed their testimony for the grand jury.  The NYT article suggested foul based on the weak cross-examination of pro-police witnesses, and the contrasting robust cross-examination of witnesses whose testimony differed from Officer Wilson's.

Well, as they say, the [grand] jury has spoken; the aftermath has erupted and has now appears to be receding; and the pundits will trip over themselves in their oft-ridiculous deconstructions of this national news event.

As a result of this case, we here at the Law Blogger are reminded of a difficult industry constant: eye-witnesses do not always recall events correctly, or in the same manner.

Although the criminal review has concluded, there is still the civil rights "excessive police force" case that will be brought in federal court against Ferguson's local government leaders, it's police force, and former Officer Wilson.  This civil case will be around for years to remind us in the legal profession of the ever-present pitfalls of law enforcement tactics in our free society.

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Tuesday, November 18, 2014

SCOTUS Considers Review of Michigan Same-Sex Marriage Case

Last June, I was preparing for oral argument in a wrongful death case before a panel of the United States Sixth Circuit Court of Appeals in Cincinnati, Ohio.  In that file preparation, we learned that one of the judges on our panel, Jeffrey S. Sutton, a George Bush appointee, was the former law clerk to SCOTUS Justice Antonin Scalia; it does not get more conservative than that.

Judge Sutton was the presiding judge in the DeBoer case and authored the 64-page, 2-1 appellate opinion; his analysis was consistent with his conservative judicial philosophy.  As is now widely known and reported, the Sixth Circuit reversed U.S. District Judge Bernard Friedman's opinion and order from last year invalidating Michigan's ban on same-sex marriage and adoption on constitutional grounds.

As is often the case in federal appeals, the DeBoer case was combined with several others, from other states in the 6th Circuit: Ohio, Kentucky and Tennessee.  The portion of the caption in this case, listing the myriad attorneys glomming onto the file, goes on for 3 and 1/2 pages; it's getting ridiculous.

We predicted that attorneys in the DeBoer case and its companion cases would act quickly and yesterday, petitions were filed for certiorari in the case with the United States Supreme Court.  We here at this blog were pleased to see one of our guest bloggers, Wayne State Law Professor Robert Sedler, to be listed among the corps of esteemed legal counsel of record in the case.

The sole and simple issue raised on appeal is whether state denial of the same-sex right to marry [and adopt children] comports with our federal constitution.  In the petition, DeBoer asserts that hers is the ideal case because:
  • there was a 9-day trial with a fully-developed record [actually, it was more like a battle-of-the-experts, as so many high-profile case are these days]; 
  • unlike other states where the state attorney general declined further challenge after losing in federal court, or at the intermediate appellate stage, the Michigan Attorney General has vowed to carry on the fight to the SCOTUS; and 
  • the Sixth is the first federal circuit to uphold a state law ban on same-sex marriage giving rise to a conflict among the federal circuits for the first time; something that SCOTUS looks for when assessing the hundreds of petitions for certiorari.
Assuming the SCOTUS is of a mindset to address this civil rights issue with this round of cases, and assuming that the various state actors submit their filings by mid-January, the DeBoer case could well be argued this term.

Oral arguments at some point in April will leave the High Court in a position to issue a decision in the case by the end of the term in June.

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