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, November 29, 2015

New Concealed Carry Law Makes Michigan a True "Shall Issue" State

Nearly half a million persons legally carry concealed weapons here in Michigan.

On December 1st, a new state law governs how concealed pistol licenses are issued in Michigan. County gun boards [consisting of the sheriff, prosecutor and a state police representative] are out; county clerks are in.

While Michigan has been considered a "shall issue" state, the county gun boards did have some discretion in the issuance of the concealed pistol license. Under the new law, provided an applicant meets the requirements -taking the concealed weapons course, age requirement, and no protection orders or felony convictions- a license must be issued.

"Shall issue" states are states that have adopted gun laws that call for administrative licensing provided that specific requirements are met; "may issue" states have laws that grant the licensing authority some discretion in the issuance of a permit. Over the last quarter century, the overwhelming trend across the nation has been the adoption of "shall issue" concealed permit laws.

In 2014, just over 2000 applications for concealed pistol licenses were denied. Of those, 349 have been denied upon a determination by the gun board that the applicant was a danger to himself or to others.

The Second Amendment has survived intact, without erosion from the court system, for well over 200-years. Over the past decade, however, the weekly public shootings that erupt in random locations across the country have brought increased scrutiny to the hallowed "right of the people to keep and bear arms".

We have heard that the NYT is planning a weekend editorial on the front page addressing the "epidemic" of gun violence in America; its first front page editorial since 1920. Gun violence is one of those touch-button issues on which people are deeply and intractably divided, and on which there is no likelihood of consensus; not in the public and not in Congress.

The rapidly increasing body count will not serve to fashion a consensus on this issue.

Post #508

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Wednesday, November 18, 2015

Criminal Defense Lawyer Jailed for Courtroom Antics

Tim Barkovic courtesy Freep
Our trial lawyers here at this blog go East-side all the time. Macomb County has its own culture and flavor; the courthouse on Main Street in downtown Mt. Clemens is no different.

Over the years, our trips East-side have included appearing before long-serving Judge Edward Servitto; he is a very even-tempered judge who does not appear to let the chaos and angst from his criminal call affect his calm demeanor.

Also over the years, we've become acquainted with a larger-than-life figure and East-side regular: the iconic criminal defense attorney Timothy J. Barkovic. Last week the paths of Judge Servitto and Attorney Barkovic intersected, as they have many times over the past 15-years; this time Barkovic wound-up heading toward the same jail he usually visits in order to advice one of his clients charged with a capital offense.

The funny thing about our friend Tim Barkovic is that his name would often come up in the back rooms of the courthouse, among the detectives working their cases. One or two of these detectives would describe incidents where they either punched Barkovic or slammed him into the wall of an interrogation room, or some other "hands-on" incident which resulted from what they described as Barkovic overstepping his bounds.

Barkovic was known to push those boundaries. Whether he's in a cop shop, jail or courtroom, everyone knows when Barkovic is "in the house".

He usually maintained a boarderline-disrespectful demeanor toward any judge not flowing his client's way; he had a strong dislike for prosecutors; and he downright detested cops. From what we gathered, the feeling was mutual.

For example, take a look at the Freep's file photo of Mr. Barkovic. Looks like someone, probably a cop, connected a fist to his East-side mug.

You are never going to see Tim Barkovic at a gathering of an Inn of Court, where the stated mission is to foster civility among lawyers and judges. The challenge to our profession is to maintain civility within the context of adversarial proceedings.

In Barkovic's case, during a felony trial, Judge Servitto overheard a heated discussion, and Barkovic's loud voice, outside a room where a jury was deliberating. Worried that the jury may have overheard the discussion about the case, the judge called Barkovic and the prosecutor into the court room and asked about the discussion on the record.

When the defense lawyer refused Judge Servitto's repeated requests to disclose what was said in the back hallway, he was found in contempt of court and sentenced to 20-days jail, to be served upon the completion of the jury trial.

Although Barkovic's actions were notable and caught the Freep's attention -they've been tracking his antics- we here at the Law Blogger doubt that he'll ever actually see the inside of a jail cell. On the other hand, as officer's of the court, aware of a judge's powers to maintain the decorum and civility of the courtroom, sometimes contempt powers must be exercised to prevent an overzealous lawyer from running away with the proceeding.

Post #507

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Saturday, November 7, 2015

The Mutually Adulterous -Judicial- Affair

Judges Foley & Drazewski
Lawyers and laypersons alike look to judges to make proper decisions. To err, however, is human.

Judges are people too, albeit bestowed with authority; therefore, they are imperfect, right along with the rest of humanity. Imbued therefore, with imperfect authority.

A truly one-of-its-kind case hammering that point home comes to us from McLean County, Illinois; two hours to the Southwest of Chicago. Circuit Judges Rebecca Foley and Scott Drazewski provided testimony this week to a panel of the Illinois Courts Commission in Chicago regarding their mutually adulterous affair; an affair that ended both of their respective marriages in divorce.

Of course, all of this is old news for the folks in McLean County; even perhaps for most Illinoisans. The interesting and significant component of last month's hearing was the testimony of the judges, both asserting, through lawyers, that their admitted mutually adulterous affair violated no specific rule of judicial ethics.

Really? That one is a stretch for us over here at the Law Blogger, knowing as we do the choppy seas of the mutually adulterous affair. The case also involves a component where Judge Drazewski presided over a trial involving Judge Foley's attorney-husband.

Not only do such affairs put a bullet into two marriages; the adulterous lovers, upon being freed from the bonds of matrimony through the divorce process -again, in this case, a high-profile proceeding- usually, eventually, cool toward one another, and split-up.

In this case, however, the two judges plan to wed. Does their claim of "true love" now provide a hall-pass for their silence, concealment, and deception relative to their long-rumored affair. Extensive proofs -yes, there were text messages- have been submitted and the Commission is expected to issue an opinion in 6-weeks.

As practicing trial lawyers, we are most troubled by Judge Drazewski's legalistic argument that no judicial ethics violation occurred regarding the specific case of Judge Foley's lawyer-husband, who litigated a trial before Judge Drazewski while the lid blew-off the judge's affair with his wife.

We here at this blog see an inherent conflict whenever a trial lawyer is cuckolded by the judge presiding over his case. Every ruling  -procedural, evidentiary, dispositive- would be, with good reason should be, second-guessed. Thus, why ever conduct such a trial?

In February 2011, the husband blew-up the situation after witnessing his wife, Judge Foley, kissing Drazewski. The judge refused to recuse himself from Foley's cases and argued to the Commission that unless Foley could demonstrate actual bias by Judge Drazewski that would alter the case outcome, he was not required to step-off the case.

Will the Commission be persuaded by the judges' argument? Will the judicial couple survive if they are forced-off the bench in righteous disgrace over their affair?

Even if they retain their seats on the bench through a favorable decision from the Commission, we wonder if the voters will be as understanding about these two judicial love birds.

Post #506

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Friday, November 6, 2015

Legalize It?

The push toward global legalization of marijuana has taken a few lurching steps over the past month, especially here in the Americas. Two steps forward; one step back.

The Supreme Court in Mexico just ruled that 4 individual plaintiffs could legally grow marijuana for their personal use; but the ruling fell short of outright legalization in that country. Legal experts suspect that the ruling could initiate a trend, however, that would make the cultivation and distribution of marijuana legal in Mexico.

To the North, newly elected Canadian Prime Minister, Justin Trudeau, has promised to make the legalization of marijuana one of his primary parliamentary goals; medical use of marijuana is already legal across Canada.

Here in the United States, however, pot legalization continues to struggle. For example, a legalization initiative for recreational use lost in Ohio on Tuesday.

Among the dozens of presidential hopefuls in the 2016 campaign, only Senator Bernie Sanders has called for the removal of marijuana from Schedule 1 of the Controlled Substance Act. Until pot is removed from the Act, legalization really has not chance to succeed here in the U.S.

Complicating removal of marijuana from Schedule 1 are the numerous eradication treaties the U.S. has signed with Latin American countries; a legacy of our failed decades-long "war-on-drugs". That war, relative to marijuana cultivation, has truly failed.

Legalization in California would move the needle significantly. Although the legalization measure on the Cali ballot failed in 2014, it will be on the ballot again in 2016.

In Michigan, two legalization initiatives are currently working their way onto the ballot for 2016. This choice could harm the legalization effort as voters attempt to sort their way through two separate complex proposals.

Our appellate courts have issued over a dozen published opinions interpreting the Michigan Medical Marijuana Act.

 Ever since its prohibition in the 1920s, the movement for legalization has been slow and painful. Also, there continues to be legitimate debate about the true palliative features of marijuana.

Sometimes, the justification for legalization simply comes down to the argument that it is less harmful than alcohol; alcohol is legal, ergo, marijuana also should be legal. This may not be good enough for the legislatures and the electorates called upon to vote on legalization measures.

Only time will tell...

Post #505

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