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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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Thursday, November 12, 2009

U.S. Supreme Court to Decide Juvenile Lifer Cases from Florida

On Monday, the U.S. Supreme Court heard oral arguments in two consolidated cases from Florida involving life sentences for juvenile offenders: Graham v Florida and Sullivan v Florida. What makes these cases interesting, and thus important, is that the victims in the cases were not killed, yet the offenders received life sentences without parole. A published decision will follow soon.

Here in Michigan, pursuant to a network of statutes, a juvenile may be tried as an adult. Michigan also has a variety of offenses which call for life sentences. There are no juvenile offenders, however, serving life sentences for non-leathal offenses in Michigan.

The question before the Supreme Court this week was whether a life sentence should be flat-out banned for non-lethal juvenile offenders. Chief Justice Roberts seemed to be lobbying his fellow-justices to provide the juvenile offender the opportunity to emphasize his "youth" under an 8th Amendment "cruel and unusual punishment" analysis. Roberts' approach was an alternative to the outright ban sought by the attorneys for the youths. He seemed to favor a "proportionality" analysis.

Full analysis of Justice Roberts' approach to the argument in this case is found on the SCOTUS blog.

There are about 100 such youth sitting in prisons on life sentences for non-lethal convictions; most of them in Florida, which has approximately three quarters. A recent NYT article suggests that tourism in the state may have been a factor in so many harsh sentences handed down to youths committing serious crimes in Florida.

Professional court watchers sensed sympathy for the youthful convicts from some of the Justices. A few seemed to favor a constitutional prohibition of such sentences. The rationale for the ban is cruel and unusual punishment. A secondary argument is that such youthful offenders could benefit from habilitation.

Other (more conservative) Justices seemed less sympathetic, wondering where the age line should be drawn.

Without a clear majority on this issue, our prediction is that the court will decide the case down ideological lines, resulting in a plurality decision (i.e. no clear majority in the opinion, with several justices writing separately from their colleagues).

The case also calls into question the age-old tension between states' rights to define their own criminal laws in accord with local mores and sentiments, and the constitutionally guaranteed rights of all citizens, regardless of the criminal code of the state in which they are convicted.

We will await the high court's decision and keep you posted on the result along with some of the other cases we are following. In the meantime, if a juvenile member of your family has been accused of a serious crime, contact our firm to discuss your options.

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Two Day Jury Trial in Oakland Circuit Results in Not Guilty Verdict

Just before the holiday, I heard the words that a defense attorney craves; "not guilty". I was in a two-day jury trial before Oakland County Circuit Judge John McDonald. I think he's a great judge, mostly because I've never lost a trial in his courtroom. This one made four straight.

The odds seemed stacked against acquittal, as usual. The principal charge was assault with intent to do great bodily harm (less than murder). The second count, commission of a felony with a firearm, carried a mandatory two-year minimum prison sentence upon conviction.

My client was a middle-aged woman with no criminal record. The alleged victim, however, had done 15-years in prison for armed robbery. After an evening of drinking and socializing, the two (in an on-again off-again relationship) retreated to my client's home. An argument boiled over and two shots were fired from a revolver. One shot hit the victim in the foot.

At trial, my client took the stand and testified she shot the weapon toward the "victim" in self defense. The jury believed her, and she avoided the two-year mandatory prison sentence.

One of the keys to the acquittal was effective cross-examination of the so-called victim. He was made to look foolish, admitting to contact with and agression toward my client.

The case illustrates how the tough plea policies of the Oakland County Prosecutor's office can sometimes force a jury trial.  In this case, the client was most concerned about doing two years in prison. She could appreciate the seriousness of the gun shots, and the significant injury one of the bullets did to her former boyfriend. Willing to do some jail time on an assault guilty plea, she could not bring herself to sign-up for two years in prison. But that's what the prosecutor wanted her to do.  They did not offer to drop the felony-firearm charge.

So the defendant rolled the bones and exercised her right to trial. In this case, it was worth the effort. This client saved two years of her life.

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Wednesday, November 4, 2009

Child Support Reduction & Collection Requests Flood Friend of Court

The pain is inflicted on both sides of the fence in family court cases across the state.  For those paying child support, and for its recipients, the depressed economy in Southeast Michigan is taking a toll.   

As a recent article in the Detroit News makes clear, the Friend of the Court in counties accross Michigan are scrambling to field the flood of requests filed to reduce child support, or to enforce an existing support order.  Most of the parents seeking a support reduction are doing so because they've either lost their job or have been handed a pay-cut.

Child support in Michigan is calculated using an algorithmic equation known as the Michigan Child Support Formula.  This formula is based on three main inputs: the payor's income, the recipient's income, and the number of overnight parenting sessions for the payor.  A payor's support obligation is modifiable if there is a "change in circumstance" to justify the request.  One such justification is when a payor, through no fault of his own, loses a job or suffers a significant decline in income. 

In difficult economic times, county Friends of the Court (the administrative arm of the family court) experience an increase in the volume of motions from payor's and custodial parents alike, seeking relief from the financial pain.  In the case of a payor, the support automatically deducted from his paycheck may exceed more than half of his take-home, especially when that "take home" is an unemployment check.  Across town, the custodial parent is used to receiving a certain amount of support to help make ends meet for the children.

When a party files a motion to modify his or her support, the matter is reviewed by a Friend of the Court Referee (a quasi-judicial official) before it goes to the family court judge.  Most FOC Referees utilize support specialists; professionals trained in the application of the child support formula.  The court rules provide for the Referee to make a recommendation to the judge regarding whether the payor's support should be reduced or not.

Each November, as the year-end approaches, parties realize there are only a few weeks left to get their matter heard before the courts shut down for the holidays.  Many scramble to file motions, hoping they can obtain some financial relief.  Wanting to save money, they forego hiring an attorney.  When a party files a motion on their own behalf, however, it can take quite a long time before the FOC grants them a hearing.

One advantage to hiring legal counsel is that the attorney knows how to get a client's motion on the dockett by the end of the year.  In addition, family law attorneys know the many angles and tricky aspects of the support formula, and how to apply that formula to a variety of compensation packages and parenting schedules.

According to the Detroit News, child support arrearages rose by approxiamtely $113 million from 2005 to 2008, although the number of support payors decreased.  These support arrears are expected to increase as unemployed payors lose their state benefits.  The situation has attracted the attention of Congress, which is proposing legislation designed to extend unemployment benefits for child support payors.

If you or a family member need relief from an acute child support situation, contact our law firm for immediate relief.  Our firm handles dozens of such cases throughout the year.  Our service is excellent and our fees reasonable.

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