Jacob Trakhtenberg

Sitting on a parole board must be tough.  When reviewing a convict's petition for parole, the board member has an enormous amount of pressure to "get it right".

One option is to take the easy route by erring on the side of caution and letting the petitioner's sentence "run it's course".  Eventually, if flopped enough times by the parole board, a convicted felon simply gets released from the penitentiary by serving a statutory maximum period of incarceration.

That is what happened to two convicted felons that have been making headlines this month: one local; the other from Upstate New York.  This post takes a look at the circumstances of the cases, addressing the challenges of the parole system presented in each.

First, the Michigan case.  In 2005, Jacob Trakhtenberg, a former Chief Engineer for Chrysler, was charged in Oakland County Circuit Court with 5-counts of criminal sexual conduct.  The charging instrument did not specify dates of the alleged sexual assaults against his minor daughter, 8-years old at the time, and was silent as to the specific nature of alleged sexual contact.

His initial court-appointed lawyer elected to conduct a bench trial before former Oakland Circuit Court Judge Deborah Tyner, who found the accused guilty on 3 of the five charges.  One of the alleged deficiencies of Trakhtenberg's court-appointed defense counsel was that she did not conduct any investigation whatsoever relative to the prosecutor's disclosed witnesses.

Trakhtenberg was in prison during the years in which his appeals have [twice] traveled the gamut of the Michigan appellate courts.

Although his appeals have finally gained some traction thanks to our friend, appellate specialist Robyn Frankel, this relief may have come too late for the convicted felon.

In November, the defendant was placed on parole, having served 2/3 of his maximum 10-year sentence, and being eligible for release under the applicable Michigan statute.  His second appeal, known as a "6500 appeal" after the specific court rule that provides for such a last bite at the procedural apple, was decided in his favor last week in a Michigan Supreme Court opinion that remanded the case to the Oakland County Circuit Court for a new trial.

In a 4-2 decision [Justice Hathaway abstained], our High Court held:

In this case, defense counsel failed to exercise  reasonable professional judgment when deciding to forgo particular investigations relevant to the defense, including her
failure to identify the factual predicate of each of the five charged counts of criminal sexual conduct, her failure to consult with key witnesses, and her failure to sufficiently develop the defense presented at trial.  Accordingly, her representation fell below an objective standard of reasonableness.  Defendant was unfairly prejudiced by counsel’s deficient performance.  The key evidence against defendant was the complainant’s testimony.  Therefore, the reliability of defendant’s convictions was undermined by defense counsel’s failure to introduce impeachment evidence and evidence that corroborated defendant’s testimony that defense counsel was unaware of because she decided to forgo those investigations.  Had the impeachment evidence and the evidence that corroborated defendant’s testimony  been introduced, there was a reasonable probability that the result of the trial would have been different.  [Syllabus, page 2]

The effective assistance challenge to Trakhtenberg's conviction, ultimately successful in this case, is a critical component of an accused's basket of Sixth Amendment rights guaranteeing a fair trial.

No word yet as to whether the Oakland County Prosecutor will go forward with a second trial considering Defendant has already served a maximum sentence.  Since the completion of his first set of appeals, the initial trial judge, Judge Tyner, resigned from the Oakland County Circuit Court bench and was succeeded on the case by Judge Daniel O'Brien.

The tough part of criminal sexual assault convictions is that the Michigan Department of Corrections has a bright-line policy whereby the offender must complete sexual abuse counseling prior to achieving eligibility for parole.  Often, convicted offenders maintain their innocence, adhering to a campaign of total denial.  This renders them ineligible for an early parole.

While the resulting extended prison stay is justified for a properly convicted abuser, it is a tragedy if the person is wrongly convicted as concluded by the Michigan Supreme Court in Trakhtenberg.

Meanwhile, in Webster, NY, the criminal justice system attempts to make sense of how William Spengler should have been handled.  Spengler, a paroled murderer, allegedly killed two first responders to a fire he started as a decoy prior to killing himself on Christmas Eve.

It has now come to light that Spengler was paroled after serving a 17-year prison sentence for murdering his grandmother with a hammer.  Prior to his release from prison, 4 consecutive parole boards denied Spengler parole despite finding him to be well-spoken, well-behaved and intelligent.

After being released from prison, Spengler kept to himself for about a decade, until he apparently solicited the assistance of a young neighbor's daughter to purchase a shotgun and an assault rifle.  We now know that these were the weapons used in Spengler's murder-suicide.

Comparing these two cases brings the difficulty of the parole process into focus.  Once a person has been warehoused in prison for several years, what does the justice system do with them upon release?

What about persons wrongfully convicted [or unconstitutionally convicted] such as Trakhtenberg?  If ultimately acquitted, he may be entitled to millions in civil damages.  Will this potential exposure play into the Oakland County Prosecutor's decision to re-try the former automotive engineer who has already served all the prison time he could serve?

Are hardened killers such as Spengler ever truly rehabilitated?  Apparently, there is always a significant risk in allowing such killers to walk free among us.

This blog does not claim to have the answers to these tough questions.

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This case, State v Helen, arose out of North Carolina.  The facts, on the surface, were about as favorable as it gets for the prosecutor.

The accused had a tail light out.  [If I had a dime for every defendant I represented who was pulled over for a tail light...]  The officer stopped the motorist; the stop led to a search of his vehicle and, eventually, a drug conviction.

Here is the problem that arose on appeal: in North Carolina, there is a little known wrinkle in their motor vehicle code which provides that, so long as a motorist's other tail light is functioning, having one light out is not a violation.

This case went all the way to the North Carolina Supreme Court.  Now, if I was sitting on that High Court, my vote would be to reverse the conviction.  If the officer lacked probable cause to conduct a traffic stop, then basic Fourth Amendment constitutional law provides that the evidence seized in an illegal stop and search is excluded as the proverbial "fruit of the poisonous tree".

A constitutional "no-brainer", right?  Guess again.  The divided High Court essentially created a new traffic law by holding that, so long as the officer held a reasonable belief that a law had been broken, the search was legal.

But citizens, take note that this "reasonably-held-belief" standard does not work both ways.  If you, the motorist, reasonably believe that you are obeying the traffic laws, [say you are texting in a municipality where you believe no distraction ordinance has been adopted], but in fact, you are violating a provision of the traffic code, then your ignorance of this law is no defense and you can get a ticket.

The "take away" from this case from North Carolina is that ignorance of the law is ok if you are a peace officer, but not if you are an ordinary citizen.

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State Senator Mike Green (R-Mayville) must love guns.  He has sponsored yet another set of sweeping expansions to Michigan's concealed handgun laws.  If Green's bill was signed by Governor Snyder, concealed weapons would have been allowed in some places where they were never legal before; like schools, churches, and large entertainment venues.

Senator Green is also the sponsor of the gun reforms of 2001, making weapons permits generally easier to procure for adults.  The Second Amendment is alive and well here in Michigan.

The bill would have abolish the county gun boards, in place since 1927, to streamline the application process.  County sheriffs would have reviewed and would have the sole authority to approve all applications.  Interestingly, the bill places a premium on issuing the permit to a qualified applicant quickly, mandating a partial application fee refund if not processed in accord with a specific time frame.

While the university would have remained a "gun-free zone", churches and other schools would not; nor do large  entertainment facilities.  I don't know about you, but I would not want to be at Ford Field or the Big House, when some drunk folks take out their weapons to settle a score.

In touting his pet legislation, Senator Green emphasized that that Michigan will now have the strongest training standards in the nation.  Well, those of us over here at the Law Blogger will certainly sleep better at night knowing that our neighbors that have applied for concealed pistol licenses are well-trained in their use and deployment.

Also, we wonder about the correlation between the training in the use of handguns and the method of use.  In other words, does better training reduce the criminal use of the weapon?  We think not.

The Second Amendment is alive and well in our country; perhaps as it should be.  But folks, Governor Snyder surely got this one right.  Frankly, the county sheriff and the county gun board both need their collective eyes on all applicants for concealed weapons permits.

Also, concealed license holders should have their identity made public in a central registry.  We'd like to know who among us is packing heat.  It's getting to a point where you just have to assume that everyone does.

On the other hand, we are mindful of weapons proponents that assert that the tragedy in Newtown, Connecticut may have been prevented if the principal or one of the teachers were armed.

Now there's a swell concept: armed teachers.

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This blog has covered the defamation lawsuit filed by the Cooley Law School against one if it's more vocal critics from the beginning.  The defamation defendant is one of the legion of graduates that has trashed the law school; in this case, a blog titled "The Thomas M. Cooley Law School Scam".

This is an important privacy law and First Amendment case.  This post brings our readers up-to-date with an important development in the case: oral argument at the Michigan Court of Appeals.

Cooley's defamation suit, pending in the Ingham County Circuit Court, was assigned to Circuit Judge Clinton Canady III. Cooley is represented by the Miller Canfield law firm and the anonymous blogger, using the pseudonym "Rockstar05", is represented by Washington D.C. lawyer Paul Levy of Public Citizen, and Berkeley, MI attorney John Hermann.

For their part, Miller Canfield had been vigorously prosecuting their cause of action, issuing subpoenas in two states [Michigan and California] to the Rockstar05's Internet service provider, seeking to rip the lid off the blogger's identity.

In September and October of last year, hearings were conducted on Rockstar05's motion to quash Cooley's subpoenas.  Somewhere along the way, the internet service provider in California apparently made an inadvertent disclosure of the blogger's identity to the Miller Canfield firm, who immediately moved the court to amend the complaint, seeking to add the now-disclosed individual to the suit.

Judge Canady initially sequestered the pleadings and documents that referenced Rockstar05's identity while it considered supplemental briefings on this First Amendment issue.  The lower court denied Rockstar05's motion to quash the subpoena, providing time for defendant to lodge an interlocutory appeal, and allowing an amicus [various media organizations] to intervene in the case.

Rocktar05 appealed Judge Canady's decision relative to the subpoena, filing this brief on appeal through his [or her; we do not know] high-powered Washington D.C. media lawyer.  For it's part, the media has filed a hard-hitting amicus brief.

Oral arguments were conducted last week at the Michigan Court of Appeals in Lansing.  This blog predicts [hopes] that the Michigan Court of Appeals will decide in favor of the critical blogger.

The primary issue before the intermediate appellate court is whether Cooley must disclose to the trial court a rational litigation-oriented basis to divulge the blogger's identity; something other than revenge.  The blogger's appellate lawyer asked the Court of Appeals to adopt the "developing consensus" standard.  When asked to un-mask an anonymous speaker, this standard would require the trial court to:

• Provide notice to the anonymous speaker and an opportunity to defend the speaker's privacy;
• Require the defamation plaintiff to identify the specific allegedly tortious statements;
• Ensure the defamation plaintiff's complaint sets forth a valid cause of action;
• Require an offer of proof supporting the claims made in the defamation complaint; and
• Balance the relative harms to the plaintiff and defendant as to the anonymity.

For it's part, the Miller Canfield law firm argued on behalf of Cooley that Michigan law does not require a preliminary showing that it is likely to prevail on the merits prior to un-masking the anonymous litigant and blogger's identity.

We here at the Law Blogger will monitor this case and report back to our readers as to how the Court of Appeals decides this privacy law issue.

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You've heard the radio ads and have seen the television ads over the past 3-years: protect your on-line identity by purchasing a "reputation" defender product.  When these ads first came out, I thought, what an extravagance; turns out, we do need on-line protection.

Most of us with electronic profiles are aware of the "surveillance economy"; companies are observing our electronic conduct and targeting ads accordingly.

These companies are known as "data brokers" or "information resellers". Unbeknownst to most of us, these companies have been scoring our reputations for years.  This consumer information industry is very large and mostly unregulated.

There is an awful lot these companies know about anyone with a robust electronic profile.  So much so that some members of Congress and a few federal agencies have taken note and quietly began to investigate.

One company, reputation.com, is set to launch a product designed to control access to your electronic profile, and prevent electronic peeping into your conduct.  Not that you'll be "off-the-grid"; that's impossible these days.  But the product seems poised to take a significant next step in what experts like Seth Godin have termed permission marketing.

Many firms are sensitive to the growing consumer concern in this area, adopting privacy policies posted on the firm's web site, or offering "opt-out" options that nevertheless allow a consumer to browse a site, without leaving a digital footprint.

It will not take long for the privacy law cases and attendant litigation to become ubiquitous.  We here at the Law Blogger will be monitoring this trend and will report back to our readers any significant developments.

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With so many folks, er, "medicating" themselves with prescription pot, you just had to see this one coming: the collision between medical marijuana and the family courts.

A California appeals court has ruled that a medical marijuana using father of a toddler is no longer required to exercise his parenting time under supervision.  The lower court found that father's use of pot placed the child at risk of "serious physical harm or illness".

The family had long been on the radar of Los Angeles County's Department of Children and Family Services.  During their investigation, DCFS interviewed father, a cement mason, who admitted to using medical marijuana for his pain and arthritis, but also stated that he never used marijuana around his toddler son.

DCFS authorized a case in the LA County family court alleging that father's legal use of marijuana rendered him occasionally incapable of  providing care for his then 18-month old child; the family court  agreed.

But not the California Court of Appeals, which held that the DCFS presented a mere scintilla of evidence, relying on inferences that amounted to speculation and conjecture regarding the correlation between the safety of the child and father's pot use.  Further, the intermediate appellate court found that DCFS failed to provide any evidence that father was unable to care for his son due to substance abuse.

The Court of Appeals' opinion is legally significant as it makes a distinction between substance use and abuse, defining the latter pursuant to the DSM-IV-TR, which defines substance abuse as:

[a] maladaptive pattern of substance use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period: (1) recurrent substance use resulting in a failure to fulfill major role obligations at work, school, or home (e.g., repeated absences or poor work performance related to substance use; substance-related absences, suspensions, or expulsions from school; neglect of children or household); (2) recurrent substance use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by substance use); (3) recurrent substance-related legal problems (e.g., arrests for substance-related disorderly conduct); and (4) continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance (e.g., arguments with spouse about consequences of intoxication, physical fights). (See DSM-IV-TR, at p. 199.)

In the California case, the DCFS simply did not make this showing.  In fact, the appeals court noted that the opposite was the case; the father was gainfully employed, had a legitimate reason to use pot, and controlled his use, keeping the substance and his use of it away from his child.

We here at the Law Blogger wonder how long it will take before such a case percolates through the court system here in Michigan, resulting in a  published and thus binding decision.  We have had the occasion to represent parents accused by the other parent of using medical marijuana during their parenting time to the detriment of the children.

In Michigan, the medical marijuana act provides some guidance in this regard:

A person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person's behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated

This is a drama-laden issue to be sure.  Stay tuned for guaranteed future developments.

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Readers of this Blawg know that we have been tracking the same-sex marriage issue as it has wound its way through the federal courts.  Late Friday, the SCOTUS granted certeriorari in two high-profile same-sex marriage cases.

One of the cases, now known as Hollingsworth v Perry, presents a 14th Amendment Equal Protection challenge to California's Proposition 8, a voter-based initiative that passed back in November 2008.  The proposition enshrines into California's constitution the proscription that only a marriage between a man and a woman would be valid and recognized in the state, thus invalidating prior state laws recognizing such unions.

The case, controversial from the beginning, has many same-sex marriage proponents nervous due to the possibility of an adverse High Court ruling.  These proponents prefer a state-by-state process; slow, sure and steady. 

Also, SCOTUS often dodges sweeping constitutional rulings when it can.  One obvious "out" for the High Court in this case is to rule that the proponents of Proposition 8, basically nothing more than a political lobby, lack proper standing in the case.  Indeed, the SCOTUS raised this issue in its order granting cert.  We here at the Law Blogger, however, hope that the Court will issue a decision on the merits of this important issue.

The second case challenges various provisions of the Defense of Marriage Act [DOMA].  Like the California case, the order granting cert in United States v Windsor also questions the constitutional standing of the intervenors, and provides options for SCOTUS' ultimate disposition.

DOMA, passed surprisingly in 1996 under President Clinton, contains provisions that deny federal rights and benefits to same-sex federal employees and, in the process, legislatively defines marriage as between a man and a woman.  Most legal scholars are predicting the demise of DOMA's no-longer-valid definition of a married couple. 

This, however, is different than expressly recognizing a constitutional right of marital union for same-sex couples; the interplay between the cases therefore will be critical.  Some pundits wonder if these are the "right" cases for SCOTUS selection from among the broad menu of same-sex cases percolating through the federal courts at this time.

Presently, 9 states have declared same-sex marriages legal; another 8 states have granted rights to same-sex couples that are similar to marriage.  If SCOTUS upholds DOMA, it will go down in history as one of the more collosal "botches" of all time; right there with the infamous decisions in Korematsu [upholding Japanese citizen internment following Pearl Harbor] and Bowers v Hardwick [upholding state laws banning consensual sodomy].

As our High Court now takes a look at these momentus cases, we should not forget that this is a tribunal with a mixed track record on such civil rights issues.  For example, in the same year,1967,  SCOTUS struck-down all state laws denying the right to marry between inter-racial couples, but ruled that "homosexuals" were, as a matter of law, persons afflicted with psychopathic personality.

My how things change over time.

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