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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Sunday, October 30, 2011

SCOTUS to Hear Michigan Case on Plea Bargain Process

This week I had a 3-day jury trial. When it was completed, I walked out of the courthouse but my client did not.

In such criminal cases, at the brink of trial, it is common that the plea discussions give an accused serious pause. Rejection of a reasonable plea offer can result in significantly more time in prison thus, the stakes are high.

The counsel-driven plea process is at the heart of a Michigan case up for oral argument this week at SCOTUS: Lafler v Cooper. The case comes from the Wayne County Circuit Court; straight out of the Frank Murphy Hall of Justice.

The female victim in the case was shot 4-times by Anthony Cooper: twice in the buttocks, once in the abdomen, and once in the hip.  She survived these gunshot wounds.

Cooper's lawyer rejected a plea offer that would have capped his prison term to the lower end of his sentencing guidelines on an attempted murder charge.  The offer was rejected on grounds that the medical evidence in the case would demonstrate that Cooper was only trying to maim his victim; not kill her.  Counsel pushed for a reduction of the charges to assault with intent to do great bodily harm.

Well, as I've learned over the past two decades: "good luck with that..."

After his jury trial conviction, Mr. Cooper was sentenced to 135-360 months in prison.  On appeal, he raised a claim that he received ineffective assistance of counsel during the plea bargain phase of his case in contravention of his rights under the Sixth Amendment to the U.S. Constitution.

With his appeals exhausted in the state courts, Cooper filed a petition for Habeas Corpus in federal court.  The federal court ruled that the state appellate court erred by not accounting for the "affirmatively deficient advice" of Cooper's trial counsel in rejecting the prosecutor's initial plea offer.

The remedy: the federal court ordered specific performance of the initial plea offer: i.e. a 50-month prison term.  Understandably, the prosecutor appealed hence, the case now resides on the SCOTUS docket.

We will keep an eye on this one for you as it implicates how defense counsel handles the all-important plea bargain process.  So stay tuned...

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Saturday, October 22, 2011

Panel Appointed to Examine Indigent Criminal Defense

This past week, Governor Rick Snyder issued an executive order appointing 10 people to serve on an "advisory commission".  Their mission: to quickly assess and make recommendations to the executive and legislature about the delivery of effective legal representation to the indigent accused.

Along with the 10 gubernatorial appointees, the commission also includes state legislative leaders from each political party; two from the state house and two from the state senate.

In reviewing the Governor's appointments, it was good to see Oakland County well represented.  Oakland County Circuit Judge Colleen O'Brien is on the commission along with former Oakland County Bar Association President Judith Gracey.

The problem presented to the Commission is how to provide effective assistance of counsel, as guaranteed under the United States and the Michigan Constitutions, for accused individuals that cannot afford to hire a lawyer.  Michigan is considered to be among the worst states in the Union in providing legal services for indigents.

This blog covered the problem last October when the Michigan Supreme Court reversed course in the Duncan v State of Michigan case, granting summary disposition to a constitutional challenge to our system of court appointed legal counsel.  So now the executive branch will make an attempt to fix what most everyone agrees is a broken system.

Here in Oakland County, this blogger has observed many a colleague providing quality legal service on a court-appointed [thus, low paying] basis.  A court-appointed lawyer may go through 50 pleas before taking a case to trial.

Similarly, at the appellate level, roster attorneys for the Michigan Appellate Assigned Counsel System subsist on a steady diet of guilty plea appeals which are essentially thankless fools' errands; done dirt cheap.  These MAACS attorneys, however, wait for a legitimate appellate assignment to come along, providing the opportunity to file a merits brief seeking to correct a constitutional wrong.

While professionally gratifying, the trial and/or appellate attorney can expect to be compensated at the rate of about $20 - $25 per hour.

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Sunday, October 16, 2011

Underfunded Courts Will Erode Justice

This granite courthouse in the Bronx took a decade to
build (1905-1915) and has been abandoned since 1978.
Achieving justice in the United States is never a given.  There are many factors that affect an outcome in the courthouse: the relative skills of the attorneys; the time a matter takes to get to trial; the personality of the judge; the backlog of the judge's docket.

One factor becoming increasingly important in the determination of justice is the funding [or lack thereof] for the judiciary.

Here in Michigan, there are budget-conscious proposals to eliminate trial judges, court of appeals judges, and to shrink the Michigan Supreme Court from 7 to 5 justices.

Referred to as the weakest branch of government in the Federalist Papers due to its inability to control either sword or purse, the judiciary must now fight for its fiscal life here in America, both at the federal level, and on a state-by-state basis, as legislatures scramble to shrink all government budgets.

Here in Oakland County, the county executive, Brooks Patterson, runs a very tight fiscal ship.  He has demanded that the courthouse balance its budget; in turn, they have accounted for nearly every penny spent in the courthouse, saving wherever possible.

Patterson's plan has meant a slow attrition among the corps of judicial clerks and other court staff.  At the Oakland County Probate Court, this has translated to juggled counter hours and longer lines.  Overall, however, the Oakland County Circuit Court's service to the public has not suffered.  How long, we wonder, can this continue?

If you have not been to the Macomb County Circuit Court in a while, don't plan your business for the afternoon if it's a Tuesday or Thursday; the clerk's office will be closed.

Elsewhere, courts have not fared nearly so well.  In California, for example, $350 million has been cut from the county trial courts since 2009, with even more cuts due by the end of the year.  The Economist reported last week that up to 48% of California's county trial courts could be rendered insolvent by the state's budget crisis.

One result of the cuts to courts in California is lengthening the time an uncontested divorce takes to process through the court system; from 6 to 18 months.  Trained court staff is needed to process such cases without delay.

In New York, the judges, not having seen a legislated pay raise since the turn of the century, have sued the political branches of their state government.  In Ohio, the Morrow County Municipal Court went to a 4-day work week in 2009 and stopped taking new cases for filing because the county failed to requisition sufficient paper.

Some quick stats compiled by the American Bar Association regarding the state of the state judiciaries:
  • 26 states have stopped filling judicial vacancies; 
  • 34 states have stopped filling judicial clerkships; 
  • 31 states have frozen judges' or clerks' salaries; 
  • 14 states have closed courts during weekdays; and 
  • 3200 courthouses have been characterized as "physically eroded" or "functionally deficient".
According to ABA, "the underfunding of the judicial system threatens the fundamental nature of our tripartite system of government."  To borrow a cliche that also captures the spirit of this problem: "justice delayed is justice denied."

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Wednesday, October 5, 2011

Boozy Bears & MIPs

As Halloween approaches, here's an adult trick that's been going around; add a pint of vodka to some gummy bears and, viola; you have a batch of Boozy Bears.

The problem arises, however, when teens get their hands on the alcohol soaked candy.  Now, any gummy-munching teen will come under suspicion for being a minor in possession [of alcohol].

There are legitimate web sites for adults, that instruct party-goers how to make a batch of the Boozy Bears.  Effortlessly; just add Stoli.

These sites have had millions of hits on the Internet.  Things that are harmful to teenagers are all over the web.  Fortunately, several news stations recently splashed Boozy Bear warning segments across their evening newscasts.

So, be on the lookout...

Teenagers charged with an MIP have options.  Contact a local attorney if you are your family member has been charged.  And in the meantime, stay away from the Boozy Bears.

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Monday, October 3, 2011

SCOTUS Opens Term with First Amendment Case from Michigan

The church can fire its priest, but can it fire the altar boy?

The case of Hosanna-Tabor Evangelical Lutheran Church and School v EEOC is one of the first cases to be argued in the 2011-2012 SCOTUS term that opens today in Washington D.C. This First Amendment freedom of religion case arises from an employment dispute at a now-defunct church in Redford, MI.

The issue in the case is the scope of the long-recognized exception to the federal employment discrimination laws when it comes to hiring or firing the clergy for a church, synagogue, or mosque.  This so-called "ministerial exception" has been recognized by all 12 federal appellate courts with the authority to hear such cases, as well as the supreme courts of 10 states.

The rationale behind the exception is that religious organizations, under the freedom of religion, should be allowed to make their own decisions about hiring and firing clergy, without concern of the normal anti-bias laws.  The question to be argued before SCOTUS on Wednesday morning is how deep into the staff and the payroll this ministerial exception goes.

Most religious institutions want the freedom to make all staffing decisions without concern for federal employment law; not just decisions relating to the pastor, the priest, the rabbi or the imam.  They are pushing for a flat-out ban on all anti-bias laws for any staffing decisions.

The Solicitor General asserts that, to the extent it is recognized, the church's interpretation of the exception is too broad.  Church staff members, the federal government will argue, are protected by federal and state employment laws.

The Hosanna-Tabor Church case involves a parochial school teacher who was fired allegedly because of her numerous disability-related complaints; the claim is that her firing by the church-school was retaliatory.  If the High Court considers her to be the equivalent of a clergy member, then she cannot seek the shelter of the Americans with Disabilities Act; if she is deemed to be a mere staffer, then she is entitled to protection under the applicable laws.

SCOTUS has seen disputes akin to this in prior petitions.  One of the reasons the Redford, MI church's petition may have been selected is because it was prepared and filed by University of Virginia Law School's Professor Douglas Laycock; one of the nation's leading experts on church-state law.

Our First Amendment jurisprudence continues to grow ever richer.  Stay tuned for the result.

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