Michael Brown

By:  Timothy P. Flynn

Here at this law blog, being trial lawyers, we fully understand the uncertainties that accompany eye-witness testimony.  Sometimes, when you think you have a case locked-up tight, a witness says some things on the witness stand you did not expect and, BAM, you're struggling to salvage your case.

It is with this in mind that I read the Sunday NYT's deconstruction of last week's grand jury non-indictment of the ill-fated and now former police officer, Darren Wilson, and the tragic death of Michael Brown.

Unlike here in Michigan, where the county prosecutors exercise what is known as "prosecutorial discretion" in making charging decisions, in Ferguson, MO, -at least in this case- a procedural tool known as a "grand jury" [consisting of 12 local individuals] was used to decide whether there was sufficient probable cause to demonstrate that Officer Darren Wilson acted illegally, or whether the evidence was sufficient to support his theory that he was in serious danger from Michael Brown, the individual he shot and killed.

Of course, I had heard snippets about the case for weeks; heard about the scheduled post-decision riots; heard about who was lining-up to protest this decision; who was allegedly race-baiting; saw President Obama address the nation.

What I really did not know were the actual facts of the case.  Here are some of the "uncontested" facts of the case:

• the incident between Officer Wilson and Michael Brown took approximately 90-seconds and began at Wilson's police cruiser; 
• bruising patterns on Officer Wilson's body and DNA evidence both support the officer's testimony that Mr. Brown struck the officer and attempted to take the officer's sidearm early in their encounter at the police cruiser; 
• 2 shots were fired from the officer's weapon, leading to Brown fleeing the scene of the immediate encounter; 
• Officer Wilson gave chase on foot; 
• Michael Brown began moving back toward Officer Wilson; 
• When Brown began moving back toward the officer, blood splotches on the ground prove he already had been shot at least once, and
• More than 20 eye-witnesses to this event testified before the grand jury.

The second-half of the encounter -Brown's second approach toward Officer Wilson- is where most of the controversy arose in this case.  Of these so-called eye-witnesses, some were discredited as being flat-out not credible while others recanted their original statements on the witness stand.

Yet, the majority of the credible witnesses offered vastly divergent testimony on the key fact of whether Mr. Brown held-up his hands when, after being shot once, he moved toward Officer Wilson.  This conundrum demonstrates a basic principle of litigation: witnesses can get it wrong, not on purpose -i.e. lying under oath- but rather through the mystery of inaccurate perception.

The phenomena of inaccurate perception of traumatic events recalls a demonstration routinely conducted in college and law school classes on the subject of criminal law.  The professor will have a prearranged actor, usually wearing an unmistakable article of clothing such as a bright red cap, rush into the class moments after it begins, and steal a book or computer from one of the students, then run out.

The professor then instructs the students, who knew nothing of this incident in advance, to recount as much detail about the robber as they can with the incident fresh in their minds.  The inaccuracies are always stunning: the gender of the thief was incorrect, the color of the cap was wrong, there was more than one person, a complete lack of consensus about what actually occurred, and on-and-on.

The wildly inconsistent eye-witness testimony was not the only genesis of controversy in the Ferguson case.  Some legal experts wonder aloud why the St. Louis County prosecutor, Robert McCulloch, did not recuse himself, or was not recused by the Governor, due to a perceived bias stemming from the fact that his own father, a police officer, was killed in the line of duty.

Other so-called legal experts [usually law professors rather than actual criminal defense professionals] see a weak prosecution -by design- in calling Officer Wilson at the outset of the proceedings rather than holding-off on his version of events until the dozens of other witnesses had completed their testimony for the grand jury.  The NYT article suggested foul based on the weak cross-examination of pro-police witnesses, and the contrasting robust cross-examination of witnesses whose testimony differed from Officer Wilson's.

Well, as they say, the [grand] jury has spoken; the aftermath has erupted and has now appears to be receding; and the pundits will trip over themselves in their oft-ridiculous deconstructions of this national news event.

As a result of this case, we here at the Law Blogger are reminded of a difficult industry constant: eye-witnesses do not always recall events correctly, or in the same manner.

Although the criminal review has concluded, there is still the civil rights "excessive police force" case that will be brought in federal court against Ferguson's local government leaders, it's police force, and former Officer Wilson.  This civil case will be around for years to remind us in the legal profession of the ever-present pitfalls of law enforcement tactics in our free society.

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Last June, I was preparing for oral argument in a wrongful death case before a panel of the United States Sixth Circuit Court of Appeals in Cincinnati, Ohio.  In that file preparation, we learned that one of the judges on our panel, Jeffrey S. Sutton, a George Bush appointee, was the former law clerk to SCOTUS Justice Antonin Scalia; it does not get more conservative than that.

Judge Sutton was the presiding judge in the DeBoer case and authored the 64-page, 2-1 appellate opinion; his analysis was consistent with his conservative judicial philosophy.  As is now widely known and reported, the Sixth Circuit reversed U.S. District Judge Bernard Friedman's opinion and order from last year invalidating Michigan's ban on same-sex marriage and adoption on constitutional grounds.

As is often the case in federal appeals, the DeBoer case was combined with several others, from other states in the 6th Circuit: Ohio, Kentucky and Tennessee.  The portion of the caption in this case, listing the myriad attorneys glomming onto the file, goes on for 3 and 1/2 pages; it's getting ridiculous.

We predicted that attorneys in the DeBoer case and its companion cases would act quickly and yesterday, petitions were filed for certiorari in the case with the United States Supreme Court.  We here at this blog were pleased to see one of our guest bloggers, Wayne State Law Professor Robert Sedler, to be listed among the corps of esteemed legal counsel of record in the case.

The sole and simple issue raised on appeal is whether state denial of the same-sex right to marry [and adopt children] comports with our federal constitution.  In the petition, DeBoer asserts that hers is the ideal case because:

• there was a 9-day trial with a fully-developed record [actually, it was more like a battle-of-the-experts, as so many high-profile case are these days]; 
• unlike other states where the state attorney general declined further challenge after losing in federal court, or at the intermediate appellate stage, the Michigan Attorney General has vowed to carry on the fight to the SCOTUS; and 
• the Sixth is the first federal circuit to uphold a state law ban on same-sex marriage giving rise to a conflict among the federal circuits for the first time; something that SCOTUS looks for when assessing the hundreds of petitions for certiorari.

Assuming the SCOTUS is of a mindset to address this civil rights issue with this round of cases, and assuming that the various state actors submit their filings by mid-January, the DeBoer case could well be argued this term.

Oral arguments at some point in April will leave the High Court in a position to issue a decision in the case by the end of the term in June.

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By:  Timothy P. Flynn

A few years back, I read in the Michigan Lawyers Weekly about a 144 million dollar jury verdict Geoffrey Fieger won against Beaumont Hospital.  My old law firm, Plunkett & Cooney, defended the hospital in the epic medical malpractice trial.  This verdict has to be one of the largest in Michigan history.

The case involved a true battle-of-the-experts regarding the cause of Plaintiff's birth injuries.  The attorneys deployed over a dozen experts to win the hearts and minds of the jurors.  Plaintiff prevailed.

Last year, I happened to be in Oakland Circuit Judge Rudy Nichol's courtroom when, months after the trial, Fieger and my former boss, Rob Kamenec, argued motions relating to entry of the judgment, remittitur of the damages, and interest.  The motion took over an hour to argue, with Fieger taking snide swipes at Mr. Kamenec and his law firm; for his part, Kamenec stuck to the law and the facts of the case.

Sitting nearby in the back benches that day, seething no doubt, was Plunketteer veteran trial attorney Joe Babiarz on whose watch this verdict appeared.  As an insurance defense lawyer, you never want any part of a nine-figure jury damage award.  That's the kind of day you want the floor to open-up and drop you to China, for good.

Still, in speaking with my old friends at the firm, it seemed like the jury award, which was taking literally a year to enter as a judgment, would be successfully appealed and reduced, if not outright reversed.  Well, guess again.

In perhaps a classic understatement, the Michigan Court of Appeals held last month in an unpublished 74-page opinion, VanSlembrouck v Halperin, that, "although the trial was far from perfect, we affirm."  The Court's decision was newsworthy not just because of the size of the historic jury verdict, but because of the extensive commentary in the opinion about Fieger's trial conduct.

Defendant challenged this conduct on appeal, asserting that Fieger's signature tactics of accusing the hospital of lying, conspiring and covering-up evidence, tainted the jury's verdict.  [Let's face it, Fieger has become wealthy off of his Beaumont verdicts alone.]

The Court of Appeals noted that the attorneys' hostility, intemperance and plain rudness to each other exasperated the trial court judge.  The Court of Appeals also noted:

The unnecessary comments, gratuitous interjections, and pursuit of irrelevant lines of inquiry identified by defendants played little part in this long trial, likely made Mr. Fieger look foolish rather than effective, and do not justify reversal.

Well, we here at the Law Blogger believe that many a lawyer would gladly stand like a fool before a jury that ends up netting their law firm 48 million dollars.

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By: Timothy P. Flynn

A judge in Virginia was recently faced with a decision whether to allow a county prosecutor to compel an accused to produce two things: his cell phone passcode and his fingerprint.  In Virginia vs David Charles Baust, the judge granted the prosecutor's request for Baust to produce his fingerprint, but denied the request for his cell phone encrypted passcode.

The accused deployed technology in his bedroom; he utilized a recorder that sent images of his sex play to his cell phone.  Only, in February, a woman came forward saying that Baust assaulted her and that she believed the incident was recorded.

Jackpot for the prosecutor if they can get their hands on the video; game over for Mr. Baust.  Defense counsel, however, says "not-so-fast"; there are constitutional rights to consider.

Local law enforcement executed a search warrant and seized Baust's cell phone and video recording equipment. The police, however, have been prevented from "entering" Baust's cell phone due to the passcode encryption on the device.

The issue before the Virginia trial court was whether compelling the defendant to produce a piece of incriminating evidence violates his constitutional right against self-incrimination under the 5th Amendment to the United States Constitution; and whether producing the passcode and/or his fingerprint constitutes "testimonial communication".

If his passcode is deemed to be "testimonial communication" then it is protected under the 5th Amendment and Baust cannot be compelled to produce the information.  We've seen this movie before here in Detroit, Michigan: United States vs Kirschner, from the United States District Court for the Eastern District of Michigan.

Like the trial court judge in Virginia, Judge Paul Borman held in Kirschner that compelling an accused to provide a passcode for his encrypted cell phone involved a mental process deemed to constitute "testimonial communication" and was thus protected by the 5th Amendment.

As for the fingerprint, Baust could be forced to produce that all day long; just as he could be forced to submit to a line-up, provide a voice sample, biological sample, or a handwriting exemplar.  These things are not testimonial in nature.

It is a long way from a state trial court to SCOTUS review.  The SCOTUS granted Certiorari in a cell phone data retrieval case from California case last year; presumably, the California case will be argued to the High Court at some point this term.

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In what legal scholars are hailing as a surprising ruling, [we were surprised here at this blog] the United States Sixth Circuit Court of Appeals upheld the state constitutional ban in Michigan on same-sex marriages and adoptions.  In doing so, the Sixth Circuit broke away from the other federal circuits to decide the issue.  These state bans have been held unconstitutional in the 4th, 7th, and 10th Circuits.

The case we are talking about here in Michigan is, of course, the Deboer case.  The ruling from Cincinnati, also encompassed state ban cases pending in Ohio, Tennessee, and Kentucky; this ruling will make the same-sex civil rights issue more attractive to the SCOTUS, no doubt.  On that note, Lyle Denniston of SCOTUSBlog, lays out three distinct procedural options that lawyers for the Deboers and the other litigants in the cases pending in the other Sixth Circuit states are analyzing as this post is being composed.

The Sixth Circuit held that states are able to determine what rules govern the institution of marriage.  One consequence of the ruling is that 100s of couples remain in legal limbo that were legally married in Michigan during the brief period between when federal judge Bernard Friedman struck the state law ban, and when the ruling was stayed on appeal.

Michigan Attorney General Bill Schuette stated briefly that he believes and has repeatedly stated that the issue will be ultimately decided by the SCOTUS sooner rather than later; that is as it should be.  Those of us in the legal industry, especially appellate watchers like Mr. Denniston, anticipate swift filings on behalf of the lawyers involved in the cases.

Last month, presumably because there was unanimity among the circuits, SCOTUS took a pass on the issue. Because of this ruling, new filings could hit the High Court by the end of the month.

We predicted wrong in one of our earlier posts; we predicted the Sixth Circuit would uphold the lower courts as the appellate courts have done in Virginia, Indiana, Wisconsin, Utah and Oklahoma throughout the federal circuits; and with more cases in the pipeline.

We here at the Law Blogger agree with Attorney General Schuette that resolution of these civil rights issues needs SCOTUS attention, and the sooner the better.

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Tomorrow's election will once again feature a variety of marijuana-based initiatives, across both Oakland County and the nation.  Medical marijuana, legalization and decriminalization are all on the ballot.

Closest to home, Berkley and Huntington Woods have proposals that would legalize the use, possession and transfer of less than one ounce of marijuana on private property.  This type of local ordinance already passed in Oak Park, Ferndale and Detroit in previous elections.

Just down the road in Pleasant Ridge, voters will have the choice tomorrow to decriminalize the same conduct [use, possession, and transfer of less than an ounce].  This means that possession of a small amount of marijuana will result only in a small fine.

Across the nation, Florida has a medical marijuana proposal on its state-wide ballot which, if passed, will put states that do not have medical marijuana laws in the minority.  Meanwhile legalization initiatives are on the ballot in Alaska, Oregon, and the District of Colombia; these states could join Colorado and Washington in the legalization of recreational use.

In New York, while nothing is on the ballot tomorrow, last July, Governor Cuomo passed the Compassionate Care Act, authorizing the NY Department of Health to promulgate regulations for the dispensation of medical pot.  Folks in Gotham are scrambling for position in the high-stakes, tightly-regulated medical marijuana industry.  While significant revenues are a certainty for the lucky few selected to join the New York pot industry, entry onto the playing field may cost seven figures [for the application].

Amazing how fast the legal landscape sometimes changes.  New York's marijuana laws have long been the toughest in the nation until last summer.  And after tomorrow, the streets of our capital may start displaying the green leaf of marijuana dispensaries.

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If you have ever filed a law suit, then you know the importance of getting each of the defendants named in the suit properly served.  When this does not happen in accord with the applicable court rules, your case can be dismissed.

Last month, two interesting cases played out involving process servers: one in federal court and one in the Michigan Court of Appeals.  Both cases present a rare peek into the tense world of service of process.

The first case, Putruss v Kastaw, was filed in the Oakland County Circuit Court and assigned to Judge Rae Lee Chabot.  The case arose from a melee that occurred at Plaintiff's Southfield clothing store, MODA Couture, when some customers became unruly, allegedly causing damage to the store.

Some of the customers involved were charged criminally, but were subsequently acquitted by jury.  The store owner sued in civil court for damages.  There were discussions between the criminal defense lawyer and the lawyer for the clothing store concerning whether the criminal defense lawyer would accept service of the complaint in the civil matter on behalf of the defendants.

When the criminal defense lawyer declined to represent these individuals and accept service on their behalf, the plaintiff attempted service through deployment of a pair of well-known process servers [one of whom is utilized by our law firm from time to time].  Because the process servers were unable to obtain personal service over the individuals, plaintiffs were granted alternate service, resulting in a dispute over the claimed attempts made by the process servers.

Judge Chabot granted defendant's motion to dismiss stating simply that she was convinced that there was lying under oath by plaintiff's process servers.  Not good enough, said the Court of Appeals in remanding the case for further factual findings by the lower court.

The second case, Nealy v Lotych, pending in federal court in Detroit, involves the allegedly unconstitutional actions of a court officer hired to execute a civil judgment.  The court officer arrived at the judgment debtor's home to execute the judgment, muscled his way in to the debtor's home, would not leave the home, and demanded over $3000 from the debtor and his wife, or he threatened to seize the debtor's truck.

As alleged, the actions taken by the court officer could be deemed illegal and overreaching.  So the federal judge denied defendants' motion for summary judgment.

These cases were covered in an article published in the Michigan Lawyers Weekly.  In the article, Jeff Kirkpatrick, a past president of the Michigan Court Officer Deputy Sheriff and Process Servers Association, stated that while the vast majority of process servers and court officers follow the law, a few "bad apples" sometimes utilize overreaching tactics.

In the near future, it will become an industry standard for court officers and process servers to utilize GPS tracking records to verify their movements relative to an attempted service.  Nothing wrong with a little technological verification when it comes to something as important as achieving personal service.

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