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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Thursday, March 28, 2013

Kelsey's Law Bans Cell Phone Use for Teen Drivers

Kelsey Raffaele killed at 17

As of today, Michigan roads have become a little bit safer.  On January 8th, 2013 Governor Rick Snyder signed into law Public Act 592 of 2012, also known as Kelsey’s Law.  The new law, which takes effect today, is named in honor of Kelsey Raffaele, 17, of Sault Ste. Marie, who died tragically in a cellphone-related automobile crash in 2010.

The law bans 16 and 17 year old drivers with a level 1 or a level 2 driver’s license under Michigan’s graduated licensing system from using a handheld phone while driving. 

A level 1 driver has the most restrictions, while a level 2 driver only has a few restrictions –such as the number of passengers allowed and limits on nighttime driving.  A teen who is at least 17 and has at least six months of driving experience as a level 2 driver may qualify for a level 3 license- the typical, unrestricted MI driver's license.

Violation of the law is a primary offense, meaning police can pull over a young driver for no other reason than being on a cell phone.  However, both the governor’s office and law enforcement spokespersons signaled that, in most cases, Kelsey’s Law will be enforced only after detection of another moving violation; this will effectively making enforcement of the law secondary.

A violation of the law will result in a civil infraction with a fine to be determined by the local jurisdiction, and could cause the level 1 or 2 driver’s license period to be extended.  No points will be assigned to the driver's record and drivers will not be punished for using a vehicle's integrated hands-free phone system or for using cell phones to report an emergency.
Officers say that Kelsey's Law is not about punishing teenagers driving on a probationary license, but all about saving lives.  We here at the Law Blogger could not agree more.

Nationally, car crashes are the leading cause of death for young drivers.  In 2011, 154 fatal crashes in Michigan were caused by a driver under 21. So far this year, there have been more than 300,000 crashes due to cellphones in the US, and not all of these crashes are attributable to teen-drivers.

While an all-out cell phone ban for all drivers would be overreaching, we do believe teen-drivers often learn behaviors from their parents, who may be multitasking [talking, texting and e-mailing] while driving.  We note that it is illegal in Michigan for any driver to text while driving and believe it’s important for parents to set a good example.

Michigan roads are a bit safer today thanks to Kelsey’s Law.  Yet, one has to wonder how much safer Michigan roads could be if experienced drivers took heed of the new law, even though it does not apply to them.

As the bumper sticker says, “Get off the phone and drive!”

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Tuesday, March 26, 2013

SCOTUS Hears Same Sex Marriage Cases Today

We've been watching the gay-marriage case, Hollingsworth v Perry, for two years; here's a link to our first post detailing case.  Two well-funded homosexual couples from California, one gay, one lesbian, challenged California's proposition 8 in federal court back in 2008, and the case finally will be orally argued tomorrow at the SCOTUS.

Their lawyers, Ted Olson and David Boies of Bush v Gore fame, are well-suited to the task of bringing the couples' privacy-based arguments to the Supreme Court.  Olson was Solicitor General under President Bush; he appears to have changed his stripes for this one.

Since that original post, two other consolidated federal cases have made their way through the federal court system and will be argued before the SCOTUS on Wednesday.  United States v Windsor challenges the denial of federal benefits for gay couples under the Defense of Marriage Act [DOMA].

As many as 17 states have filed amicus briefs in opposition to gay marriage.  Court watchers are bracing for a seminal ruling along the order of the High Court's Roe v Wade decision that legalized abortion.

Others say, "not so fast."  Justice Ruth Bader Ginsburg is one such voice.  She has made a series of public comments lately critical of such sweeping decisions; they go too far too fast says Ginsburg.

A less judicially active approach in the Roe v Wade would have been to strike down the Texas anti-abortion law on an "as applied" basis, but leaving the broader constitutional questions to be determined on a state-by-state basis.  Of course, this is not what the Roe v Wade Court did; the political and cultural fall-out continues to this day.

Considering possible outcomes in the gay-marriage cases being argued today, the post-modern SCOTUS faces the choice of invalidating California's Proposition 8, and if they do, whether they do so in a broad or narrow fashion.  Expect concurring and dissenting opinions; perhaps even a plurality decision which, by its nature, has a less-binding effect on subsequent courts.

Either way, we will keep our readers posted when the decision is announced at some point in June like we did when New York legalized same-sex marriage in June of 2011.  The results from these cases will be important to Michigan which, like California, passed a constitutional amendment declaring marriage to be a status limited to heterosexual couples.

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Friday, March 15, 2013

Same-Sex Marriage Cases in the Michigan Mix

As the SCOTUS perpares to consider some momentous same-sex marriage cases this term in Washington, D.C., Michigan has a few cases of its own that deserve consideration.  Federal District Judge Bernard Friedman has recently taken one case under advisement in Detroit as he awaits direction from the SCOTUS on this issue; while the other case involves today's Up North wedding between two men, pictured at left, Tim LaCroix and Gene Barfield.

Michigan is an interesting state for the same-sex marriage issue to arise. In 2004, voters approved a constitutional amendment to ban same-sex marriage.  If SCOTUS declares a similar ban in California unconstitutional, the floodgates could be opened for same-sex couples.

In the case pending in the U.S. District Court for the Eastern District of Michigan, a gay couple first set out to challenge the adoption laws that they alleged discriminated against same-sex couples.  Their lawsuit then morphed into a challenge to Michigan's 2004 constitutional amendment which defines a marriage as between a man and a woman.  Plaintiffs in the suit are a lesbian couple from Hazel Park.

Defending Michigan's constitution is the Michigan Attorney General, who argues that the amendment does not discriminate against specific groups but rather, is merely "an affirmative statement about the virtues of traditional marriage".

Today's Up North wedding between the two men is scheduled to take place at an unknown location; presumably somewhere on the Odawa Indian Reservation or lands.  The same-sex marriage was endorsed by a close majority of the legislative body of the Indian Tribe.

Because the tribe to which the men belong is recognized by the U.S. Government, it is not bound by state law thus, the 2004 constitutional amendment does not apply to the Tribe.  Major-league loophole.

We here at the Law Blogger, like Judge Friedman, will be watching SCOTUS for its decision on the issue.

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Thursday, March 14, 2013

Mormon Murder Provides Unique Cross-Examination Opportunity

Jeeze, the American media sure loves a good capital murder trial; especially one with the whiff of religion mixed with the spectre of the death penalty.  Plenty of grist for their insatiable mills.

Not since Under the Banner of Heaven, Jon Krakauer's fascinating account of the 1984 murders of a Mormon housewife and her 15-month daughter in Utah at the hands of her brothers-in-law, has the Mormon faith been enmeshed with a lurid murder like the trial grinding-onward in Phoenix, Arizona.

Yes, that would be the capital murder trial of the Casey-Anthonyesque "former model", Jodi Arias; accused of shooting, then slicing the throat of her Mormon boyfriend, Travis Alexander.  As a criminal defense lawyer traveling to circuit and district courts across Michigan, I've had plenty of time to listen-in on this sensational trial over the past two-months.

While quite rare to have any defendant take the witness stand in her own defense, it is exceedingly rare for a defendant accused of murder to take the witness stand in a jury trial.  Rarer still is to have the ongoing cross-examination of that defendant available in real-time for more than two weeks.

Cross-examination is the art of controlling a witness in order to convey a story, or a message, to a captive audience of 12 jurors; each of whom have somewhere else to be.  It is a skill that few lawyers can pull-off very well.  Like golf, you cannot just pick it up on the occasional weekend.  While there are boatloads of lawyers out there, only a handful have viable cross-examination skills.

The Jodi Arias trial is so lurid, with such high shock-value, it is a cross-examiner's dream.  A county prosecutor good enough to be assigned to a high-profile case is going to be a proficient cross-examiner.  Just listening to Juan Martinez cross-examining Ms. Arias, as a criminal defense lawyer, is like being in a trial clinic.

But 18-days on the witness stand?  Most judges have local court rules allowing them to control the decorum and procedure in their courtrooms, especially during a jury trial.  This power includes limiting time on the witness stand.  Most court watchers agree that this trial has turned into spectacle and has sailed over-the-top.

On the other hand, once you allow a genie like this out of the bottle, how then can you limit its scope when it takes on a life of its own.  If the Arias defense team tosses her a hundred softballs on a myriad of subjects in her direct examination [i.e. dates, times, family history, abuse history, sexual habits; each in excruciating detail], then what is a prosecutor to do but dutifully explore each and every door that has been thrown open.

Add to this the national media attention to the case, and viola; the politician within the judge in charge of such a circus is not going to prematurely turn the nation's eyes away, especially when that judge is center stage for the ever-ready lens of the voracious national media.

Nor can we forget to account for the potential value to the defendant, win or lose, of grabbing America by the shorties for as long as she can hold-on, in order to maximize her capital in the notoriety bank; the added-value could come in handy further down her tough road ahead.  From a long-term strategy perspective, this makes sense if you are Ms. Arias; and from what I've heard, she's got her head in the game.

We here at the Law Blogger defend the accused in jury trials all the time; admittedly, not high-profile murder cases.  We know some good judges here in Oakland County that could fit five or six murder trials into the yawning span of the Arias trial.  In the end, this spectacle amounts to a huge waste of legal talent and judicial resources.

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Wednesday, March 13, 2013

Winners and Losers in the 313

To the extent that completing a federal prison sentence is a win, then today was a good day for former Detroit City Councilwoman, Monica Conyers.  Ironic that as Monica completes her  36-month truncated sentence, former Mayor Kwame Kilpatrick is getting a head-start this week on his own federal sentence.

Monica Conyers has now paid her "official" debt back to the citizens of the City of Detroit and the State of Michigan for her federal bribery conviction.  The total debt for breaches of the public trust like these, however, can never be paid in full.

The two Motown politicians have long-been connected at the hip here in the D.  Kilpatrick's public service career came to a crashing end in March 2008, just prior to his being charged with state law felonies.  The Detroit City Council passed a non-binding resolution 7-1 to remove him from office; Conyers was Kwame's sole supporter; her lone vote cast just as her own official career came to similarly ignominious end.

Both convicts have family that have served in Congress.  Monica Conyers is the wife of long-serving Congressman John Conyers from Michigan's re-tooled 13th District; Kwame's Mother, Carolyn Cheeks-Kilpatrick, represented Michigan's re-tooled 14th District from 1996 until she was defeated by Hansen Clarke in 2010, while her son's legal battles were heating-up.  Kilpatrick's Father, Bernard Kilpatrick, once served as chief-of-staff for former Wayne County Executive Robert McNamara; you just could not be better connected in Wayne County or Detroit.

For his part, Kwame's as yet un-sentenced jury convictions for abuse of the public trust, embezzlement, racketeering, and a bushel full of other counts, have rendered his torrid Wikipedia biography woefully out-of-date.  Kipatrick's expected decade-plus sentence will be meted-out sometime later this spring.

Even accounting for the significant good-behavior credits available in the federal penitentiary, the former mayor is going to do a long-bit; the federal sentencing guidelines are not something to trifle with.  Kilpatrick's prior state-law convictions and the multi-million-dollar amounts of the illegal contracts in his case will jack-up his sentence.  

We here at the Law Blogger feel bad for Kwame's three young sons; they are part of the human price that will now be paid.  It's all bad, for everyone.  The former Mayor and Councilwoman do not deserve public forgiveness.  Their cases illustrate the deep costs of such poor decisions and criminal conduct.  They have robbed us all.

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Friday, March 1, 2013

Legalized Marijuana: State Attorneys General Look to Washington, DC

Attorney General Eric Holder
U.S. Attorney General Eric Holder has been asked by the Attorney General of Colorado for an indication of how the DOJ will treat the marijuana legalization initiatives passed into law by Colorado and Washington.  Holder has promised to address the issue, "soon".

The USAG made the promise at a national conference of Attorneys General in response to a question posed to him by Colorado Attorney General John Suthers.  Holder indicated that the DOJ was working on formulating the policy response and that it was complicated.

Although marijuana has been legalized in two states, and is legal for medical purposes in a third of the states and the District of Colombia, it remains classified as an illegal "controlled substance" under federal law.  Thus, businesses within states that have legalized pot are wary of going too far down the road with the development of industry infrastructure if the DEA can, at any time, come crashing in and shut them down.

Although marijuana has been a key component in the federal government's 3-decade long "war-on-drugs", the popularity of marijuana among the mainstream citizenry, and its success at the polls, has given the feds pause.  Last fall's successful outright legalization initiatives has brought the matter to a head.  Conflicts between federal and state laws must be resolved in our federalist system of governance.

We here at the Law Blogger expect some sort of marijuana-equivalent of the "don't ask; don't tell" policy.  For the industry, this will be like getting served a bowl of luke warm soup.

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