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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Wednesday, November 18, 2015

Criminal Defense Lawyer Jailed for Courtroom Antics

Tim Barkovic courtesy Freep
Our trial lawyers here at this blog go East-side all the time. Macomb County has its own culture and flavor; the courthouse on Main Street in downtown Mt. Clemens is no different.

Over the years, our trips East-side have included appearing before long-serving Judge Edward Servitto; he is a very even-tempered judge who does not appear to let the chaos and angst from his criminal call affect his calm demeanor.

Also over the years, we've become acquainted with a larger-than-life figure and East-side regular: the iconic criminal defense attorney Timothy J. Barkovic. Last week the paths of Judge Servitto and Attorney Barkovic intersected, as they have many times over the past 15-years; this time Barkovic wound-up heading toward the same jail he usually visits in order to advice one of his clients charged with a capital offense.

The funny thing about our friend Tim Barkovic is that his name would often come up in the back rooms of the courthouse, among the detectives working their cases. One or two of these detectives would describe incidents where they either punched Barkovic or slammed him into the wall of an interrogation room, or some other "hands-on" incident which resulted from what they described as Barkovic overstepping his bounds.

Barkovic was known to push those boundaries. Whether he's in a cop shop, jail or courtroom, everyone knows when Barkovic is "in the house".

He usually maintained a boarderline-disrespectful demeanor toward any judge not flowing his client's way; he had a strong dislike for prosecutors; and he downright detested cops. From what we gathered, the feeling was mutual.

For example, take a look at the Freep's file photo of Mr. Barkovic. Looks like someone, probably a cop, connected a fist to his East-side mug.

You are never going to see Tim Barkovic at a gathering of an Inn of Court, where the stated mission is to foster civility among lawyers and judges. The challenge to our profession is to maintain civility within the context of adversarial proceedings.

In Barkovic's case, during a felony trial, Judge Servitto overheard a heated discussion, and Barkovic's loud voice, outside a room where a jury was deliberating. Worried that the jury may have overheard the discussion about the case, the judge called Barkovic and the prosecutor into the court room and asked about the discussion on the record.

When the defense lawyer refused Judge Servitto's repeated requests to disclose what was said in the back hallway, he was found in contempt of court and sentenced to 20-days jail, to be served upon the completion of the jury trial.

Although Barkovic's actions were notable and caught the Freep's attention -they've been tracking his antics- we here at the Law Blogger doubt that he'll ever actually see the inside of a jail cell. On the other hand, as officer's of the court, aware of a judge's powers to maintain the decorum and civility of the courtroom, sometimes contempt powers must be exercised to prevent an overzealous lawyer from running away with the proceeding.

Post #507

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Saturday, November 7, 2015

The Mutually Adulterous -Judicial- Affair

Judges Foley & Drazewski
Lawyers and laypersons alike look to judges to make proper decisions. To err, however, is human.

Judges are people too, albeit bestowed with authority; therefore, they are imperfect, right along with the rest of humanity. Imbued therefore, with imperfect authority.

A truly one-of-its-kind case hammering that point home comes to us from McLean County, Illinois; two hours to the Southwest of Chicago. Circuit Judges Rebecca Foley and Scott Drazewski provided testimony this week to a panel of the Illinois Courts Commission in Chicago regarding their mutually adulterous affair; an affair that ended both of their respective marriages in divorce.

Of course, all of this is old news for the folks in McLean County; even perhaps for most Illinoisans. The interesting and significant component of last month's hearing was the testimony of the judges, both asserting, through lawyers, that their admitted mutually adulterous affair violated no specific rule of judicial ethics.

Really? That one is a stretch for us over here at the Law Blogger, knowing as we do the choppy seas of the mutually adulterous affair. The case also involves a component where Judge Drazewski presided over a trial involving Judge Foley's attorney-husband.

Not only do such affairs put a bullet into two marriages; the adulterous lovers, upon being freed from the bonds of matrimony through the divorce process -again, in this case, a high-profile proceeding- usually, eventually, cool toward one another, and split-up.

In this case, however, the two judges plan to wed. Does their claim of "true love" now provide a hall-pass for their silence, concealment, and deception relative to their long-rumored affair. Extensive proofs -yes, there were text messages- have been submitted and the Commission is expected to issue an opinion in 6-weeks.

As practicing trial lawyers, we are most troubled by Judge Drazewski's legalistic argument that no judicial ethics violation occurred regarding the specific case of Judge Foley's lawyer-husband, who litigated a trial before Judge Drazewski while the lid blew-off the judge's affair with his wife.

We here at this blog see an inherent conflict whenever a trial lawyer is cuckolded by the judge presiding over his case. Every ruling  -procedural, evidentiary, dispositive- would be, with good reason should be, second-guessed. Thus, why ever conduct such a trial?

In February 2011, the husband blew-up the situation after witnessing his wife, Judge Foley, kissing Drazewski. The judge refused to recuse himself from Foley's cases and argued to the Commission that unless Foley could demonstrate actual bias by Judge Drazewski that would alter the case outcome, he was not required to step-off the case.

Will the Commission be persuaded by the judges' argument? Will the judicial couple survive if they are forced-off the bench in righteous disgrace over their affair?

Even if they retain their seats on the bench through a favorable decision from the Commission, we wonder if the voters will be as understanding about these two judicial love birds.

Post #506

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Friday, November 6, 2015

Legalize It?

The push toward global legalization of marijuana has taken a few lurching steps over the past month, especially here in the Americas. Two steps forward; one step back.

The Supreme Court in Mexico just ruled that 4 individual plaintiffs could legally grow marijuana for their personal use; but the ruling fell short of outright legalization in that country. Legal experts suspect that the ruling could initiate a trend, however, that would make the cultivation and distribution of marijuana legal in Mexico.

To the North, newly elected Canadian Prime Minister, Justin Trudeau, has promised to make the legalization of marijuana one of his primary parliamentary goals; medical use of marijuana is already legal across Canada.

Here in the United States, however, pot legalization continues to struggle. For example, a legalization initiative for recreational use lost in Ohio on Tuesday.

Among the dozens of presidential hopefuls in the 2016 campaign, only Senator Bernie Sanders has called for the removal of marijuana from Schedule 1 of the Controlled Substance Act. Until pot is removed from the Act, legalization really has not chance to succeed here in the U.S.

Complicating removal of marijuana from Schedule 1 are the numerous eradication treaties the U.S. has signed with Latin American countries; a legacy of our failed decades-long "war-on-drugs". That war, relative to marijuana cultivation, has truly failed.

Legalization in California would move the needle significantly. Although the legalization measure on the Cali ballot failed in 2014, it will be on the ballot again in 2016.

In Michigan, two legalization initiatives are currently working their way onto the ballot for 2016. This choice could harm the legalization effort as voters attempt to sort their way through two separate complex proposals.

Our appellate courts have issued over a dozen published opinions interpreting the Michigan Medical Marijuana Act.

 Ever since its prohibition in the 1920s, the movement for legalization has been slow and painful. Also, there continues to be legitimate debate about the true palliative features of marijuana.

Sometimes, the justification for legalization simply comes down to the argument that it is less harmful than alcohol; alcohol is legal, ergo, marijuana also should be legal. This may not be good enough for the legislatures and the electorates called upon to vote on legalization measures.

Only time will tell...

Post #505

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Sunday, October 25, 2015

Dangerous Apps Teens Hide From Parents

If you really want to know how to manipulate the full power of a cell phone, consult with a teenager. Teens know more about apps than most adults ever will.

 A computing app, or application, is a self-contained program or piece of software designed to fulfill a particular purpose, especially as downloaded by the user of a mobile device. Today there are literally hundreds of thousands of apps, maybe more than a million.

A handful of these apps have a special utility for teenagers; special in a way that can be dangerous. While they are generally clueless about the dangers of attracting anonymous attention to themselves via these apps, teenagers are experts at utilizing technology to hide the existence of such apps

Here is a smattering of what is out there that teenagers are utilizing these days.

Yik Yak
This app has already caught our attention here at the Law Blogger. Yakkers post anonymous 200-character messages that are picked up by nearby fellow Yakkers. "Nearby" is determined by GPS. Because it is anonymous, the messages are often sexually explicit and abusive.

Originally known as "Bang with Friends" due to its Facebook connection, this app allows users to anonymously send love notes to the objects of their desire among their FB friends; they indicate whether they want a physical "hook-up" -what used to be known as a "one-night-stand"- or whether a more serious dating relationship is sought. The mechanics are explained through a series of FAQs posted on the app's home page.

On its home page, this app promises a great way to meet new friends, and states that they will select someone with whom the user can communicate, via video, texting, or instant messaging. Omegle's selection of the other person is based on the user's interests, as expressed through your FB likes or through selections available on the app. The theory is, rather than hook-up with a random stranger, at least you will be mingling with someone the same interests.

Touted as the best place to express yourself online due to a user's anonymity, this app invites its users to share anonymous secrets while displaying the general geographic vicinity of the user. Whisper was described in Forbes as a "mashup between Twitter and Snapchat". Among it millions of users, a significant portion of whom are teens, a common theme among the disclosed secrets are relationship troubles and eating disorders. The app displays confessions posted by people located with a mile or two radius of the user, just to get that local feel.

This app encourages you to "be yourself" by allowing users to speak freely to one another without names or profiles attached. Friends can like or love each others posts, anonymously, of course, and if the user allows, they can be shared nationwide. The mode of posting is through a "thought of the day" to which photos or backdrops can be added.

Then there are the apps designed to hide the apps that users do not want others, like parents, to know reside on their cell phones.

This iphone app is no longer available from the Apple store, but your teenager may have downloaded it when it was viable and may still be using it. Poof allows a user to identify target apps that become hidden on their cell phone.

This app allows the user to password protect certain apps that they do not want others to access on their cell phones. This Android app proclaims on its home page: hide pictures and videos; control what can be seen on your cell phone or tablet.

Hide it Pro
Similar to Vaulty, but this app is available for both Android and iPhones. The app is disguised as an audio manager made to look like it simply controls the audio for the phone. If a user presses and holds the app, it reveals a password-protected lock screen behind which photos and messages can be stored.

A survey conducted by McAfee software reveals that 70% of U.S. teenagers have hidden Internet content. 53% of teen users hide content by clearing their browsers while another 34% hide or delete the content.

The best way for you to monitor your teenager's cell phone use is to have open discussions of the dangers of certain apps. As you are the parent, and most often the one paying the cell phone bill, take an active role in examining the teenager's cell phone.

When all else fails, there are apps like phonesheriff to assist. Check them out and deploy if needed.

Good luck; it's a jungle out there.

Post #504

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Thursday, October 22, 2015

Appointments Made to Oakland County Circuit Court

Honorable Hala Jarbou
When Oakland Circuit Judge Lisa Gorcyca was first elected in 2008, and assigned to a courtroom with a general docket, the Oakland County Prosecutor dispatched Hala Jarbou to manage the criminal case calls in that courtroom. Judge Gorcyca was greatly assisted in running efficient criminal calls each week due to assistant prosecutor Jarbou's style, presence and knowledge of the criminal law and its procedure.

During her stint as Judge Gorcyca's docket prosecutor, we here at the Law Blogger observed a prepared, knowledgeable and personable lawyer. Ms. Jarbou left the Oakland County Prosecutor's office several years ago to work the drug-crime prosecution unit in U.S. Attorney Barbara McQuade's office in Detroit.

All of this bodes well for Governor Rick Snyder's appointments of Ms. Jarbou and Garan Lucow attorney Jeffrey Matis to fill the vacancies on the Oakland County Circuit Court. These individuals are already listed on the Oakland County Circuit Court's page of the judgepedia web site.

Judge Rudy Nichols retired after 25-years on the bench and Judge Colleen O'Brien recently was appointed by Governor Snyder to the Michigan Court of Appeals. When these vacancies open-up, the veteran judges have the option of moving into the general jurisdiction docket from the family court or vice versa.

Normally, we see the migration of judges from the family court to the general jurisdiction docket and suspect it is due to the burn-out that occurs among family court professionals.

Veteran Judge Cheryl Mathews has indicated her desire to leave the family court to take over Judge Nichols' docket. Whether Judge Gorcyca, also a veteran judge with seniority, will do likewise, and step into Judge O'Brien's docket remains to be seen as she has yet to make-up her mind on the issue.

Therefore, at least one of the new appointees will become a family court judge. Depending on Judge Gorcyca's final decision, both of the new judges could be seated on the family court.

For his part, Jeffery Mattis becomes one of the few civil litigators appointed to the Oakland County Circuit Court bench. We here at the Law Blogger always find it refreshing to have lawyers that tried cases become the newest judges on one of Michigan's most active courts.

Post #503

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