We have all heard the news streaming from Detroit over the past half-decade regarding the effects of the real estate collapse.  In order to generate some much-needed revenue, the Mayor's office has designed several programs to demolish the thousands of vacant condemned homes across Detroit, and auction salvageable properties that have been foreclosed for non-payment of taxes.

When property owners do not pay their property taxes, Michigan law provides a foreclosure process for the county treasurer to sell the property out from under the owner, similar to a mortgage foreclosure.  In Detroit, the tax foreclosure process has taken on a Kafkaesque dimension due to the sheer volume of distressed homes and the unusual tenacity of squatters.

Just as 75,000 properties in Wayne County are being prepared for tax foreclosures and sale by auction in 2015, a father and his adult daughter were gunned-down last week when entering their newly acquired home in the bucolic Rosedale Park section of Detroit.  They purchased the home at a tax foreclosure auction and were taking possession the day after Thanksgiving.

Unfortunately for the now-deceased new home owners, the former tax-delinquent owners were either unaware of the foreclosure sale, or did not care, leaving an uninformed family member to occupy the home over the holiday weekend; he was armed and probably thought he was protecting family property.

The most discouraging aspect of this story is where the murders took place.  Rosedale Park is the largest historic district in Michigan; it's homeowner's association is nearly a century old.  Among the residents of these historic and beautiful neighborhoods -Rosedale, North Rosedale and Grandmont- are some of Detroit's leading citizens.

The percentage of distressed homes in Wayne County, especially Detroit, that have delinquent tax issues, squatters, auction complications, or outright condemnation is critically high.  Getting law enforcement from Detroit and Wayne County to coordinate these property transfers with the County Treasurer will be a challenge.

This challenge must be met, however, or more blood will flow in the "D" as new property owners clash with former property owners, and as squatters are confronted with self-help eviction methods.

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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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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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Detroit Police are seeking anyone that knew the 23-year old international graffiti artist, Bilal Berreni, during his brief and fatal stay here in the 313.  The young VIP International was shot in the face at the long-abandoned Brewster-Douglass housing project on the East Side in July.

Until the DPD very recently discovered his identity, Berreni was just one among several unidentified corpses kept on ice at the Wayne County Morgue. The police were able to piece together the few available clues to identify the street artist from Paris.

At the time of his death, Berreni had survived refugee camps along the border of Libya; revolutionary Tunisia; he ran the streets of Paris his whole life; he roamed the lawless cities of Eastern Europe, covering abandoned concrete with black and white paint wherever he went; he flopped around Gotham in the summer of 2012; he was even arrested in Ohio.

St. Antoine St., here in the 313, however, was the end of the road for Berreni, described as an up and coming icon in the world of street art.  His works were profiled in Le Monde in 2011.

Berreni's father described his son as an enlightened artist, perhaps belonging to another century; he had a nose for the revolution in the air around Northern Africa in 2010; his father told the Freep that his son, "was not afraid of danger."  His father said he came to Detroit because he was interested in the creation that arises out of chaos.

Well, there's danger, and there's chaos...and there's the 313.  It's a real shame, but not all that surprising that a young international luminary had to be gunned down here in the D, and left to rot like trash.

Kudos to the DPD for tracking down the identity and the story behind this unfortunate artist.  Hopefully, they find his killer(s).

Perhaps someday, something good will emerge from the danger and chaos of Detroit.  As this young unfortunate artist's death tells us, however, that day is still a long long way off.

Post Script: November 22, 2014: per the Detroit News.  Four Detroit gang youths are charged with the street artist's killing.  Preliminary exams are being scheduled in the Frank Murphy Hall of Justice and the victim's family is expected to fly in to face their son's killers.

September 15, 2015 Post Script: Two of the four young Detroiters charged in Bilal's murder have pled guilty. Another, Dionte Travis, went to trial as an accessory; a "look-out". That trial ended in a mistrial when the jury could not come to an unanimous verdict. A new trial has been scheduled for early next year.

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Detroit's Insane Clown Posse

Juggalos: those zombie-like fans/groupies/followers devoted to the aging Detroit-based rap duo Insane Clown Posse.  Like them or not, ICP has a long tortured history, having been hatched in Detroit's service drive music scene back in 1987; an eternity in the music world.

According to Wikipedia:

The group is composed of Joseph Bruce and Joseph Utsler, who perform under the respective personas of the "wicked clowns" Violent J  and  Shaggy 2 Dope.  Insane Clown Posse performs a style of hardcore hip-hop known as horrorcore and is known for its elaborate live performances.  The duo has earned two platinum and five gold albums.  

The songs of Insane Clown Posse center thematically on the mythology of the Dark Carnival, a metaphoric limbo in which the lives of the dead are judged by one of several entities.  The Dark Carnival is elaborated through a series of stories called Joker's Cards, each of which offers a specific lesson designed to change the "evil ways" of listeners before "the end consumes us all."

Thus is the stage set for hordes of Juggalos.  With the band's history of assault convictions in the late 1990s, every concert retains its recipe for a suburban cult disaster.  And guess what, although the band-mates deny it, there have been incidents of violence, drugs and exhibitionism at many ICP concerts; law enforcement is on to "them".

Yet not all Juggalos are committing crimes at concerts.  And not all Juggalos are bad; misunderstood and perhaps sorely misguided, but not all law breakers.  So over here at the Law Blogger, what we're wondering is whether such extreme yet collective bad taste should be criminalized?

Some time ago, the FBI glommed onto this game for bored suburbanites.  Back in 2011, the FBI's National Gang Intelligence Center designated "Juggalos" as a "loosely organized hybrid criminal gang."  In and around the 313, law enforcement has been on the lookout for Juggalo types, especially at ICP concert venues like the Royal Oak Music Theater.

Juggalos have been harassed, and the band has suffered; now they've stuck back.  The ACLU Detroit has filed a lawsuit in federal court on behalf of the fan base, seeking injunctive relief, i.e. the removal of Juggalos from the FBI gang squad's list of the infamous, and destruction of all Juggalo files and documentation: especially the photos, recording what has to be a rogues gallery of self-deprecation, if not self-mutilation.

After all, criminalizing bad taste is, in the words of the ACLU lawyer assigned to the case, "un-American".  If the First Amendment and its long tortured history means anything to the federal judge assigned to the case, this will be an ACLU victory.

Update:  Here is an update from the Detroit News in April 2014, with the ICP trying to change its image.

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By:  Timothy P. Flynn

When a police officer has good reason to stop someone on the street to ask a basic question like, "what is your name?" or, "what are you doing?", he has a right not to receive a bullet for an answer.  In some places in our country, here in the 313 or, say, Gotham, police are often viewed as the enemy, especially by the thugs on the streets patrolled by those officers.

Police officers are trained to identify and stop crime.  Their training and experience translates into certain tactics used on the streets in the course of their daily job duties.

One such tactic endorsed by the SCOTUS 45-years ago, in a case called Terry vs Ohio, is the "stop-and-frisk".  A stop-and-frisk is where a police officer with a "particularized suspicion" [something less than probable cause] that a person may be involved in criminal conduct, can stop the person  -briefly detain the individual- in order to ask them some basic questions.

In the process of stopping the individual and asking some basic questions, the officer may pat down the outer clothing of the individual in order to ensure no weapons are present and to facilitate the safety of the officer, the stopped individual, and innocent bystanders.  Think Sheriff Andy Williams strolling through Mayberry.

In theory, this pat down search must be brief and minimally intrusive, limited to the outer clothing of the individual; it cannot be a search for evidence.  How a particular officer conducts a basic pat down search says a lot about his personality; where a pat down search takes place is a huge factor in whether there will be trouble, or not.

On the mean streets of NYC, like here in the "D", officers have their hands full.  Routine stop-and-frisks can become a full-on fleeing, eluding and shooting in a matter of seconds.

In recent years, much grumbling has percolated up from the streets of Gotham due to the manner in which the NYPD handles its stop-and-frisk maneuvers.  The NYPD has been criticized for using racial profiling techniques in the prosecution of this law enforcement tactic.

In turn, this has led to a recent series of strident rulings by a federal judge in Manhattan.  Judge Shira A. Scheindlin has ordered sweeping changes to the NYPD, including a suspension of the stop-and-frisk policy as well as the appointment of a monitor for the department.

These rulings have been appealed to the United States Court of Appeals for the Second Circuit by the legal department of the outgoing Bloomberg administration.  Last month, the Second Circuit stayed Judge Scheindlin's rulings pending resolution of the appeal.

Of course, nothing ever being simple in Gotham, Judge Scheindlin put her thumb print all over these cases through a questionable maneuver to steer all the "stop-and-frisk" cases into her courtroom, and by granting media interviews about the cases while they were still being prosecuted in her Manhattan courtroom.

Now, however, some City bureaucratic leaders, and law-enforcement oriented folk, fear that the new administration of mayor-elect Bill de Blasio will withdraw the City's appeals of Judge Scheindlin's so-called anti-NYPD rulings.  NYC is the only entity with standing to appeal the rulings.

We shall see how these cases turn out in Manhattan.  While there could be some implication for all big-city police departments, here in Detroit, the DPD has a host of other problems distinct from how they conduct their stops and frisks.

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Here in the 313, we're used to having it rough.  This is a place where nothing comes easy.  Detroit has been existing within the shadow of a lost world-class status since the riots in 1967.

Now that Washington D.C. lawyer and Snyder-appointed emergency manager Kevin Orr has settled-in and taken a look around here in the "D", it's starting to look like this appointment may have come too late.

There is a mountain of things to correct; the deep oaken roots of 100-years of corruption need to be pulled out of the Detroit soil; it is proving very difficult.  The prospect of the largest municipal bankruptcy in United States history is now looming large; the consequences of the decades of mismanagement are coming home to roost.

Mr. Orr is zeroing-in on municipal pensioners, municipal employees, and an overall 20-billion dollar debt restructuring package.  If the restructuring fails, this mess will be placed in the hands of a federal bankruptcy judge; the state problem goes federal.

Now that the battle lines have been drawn, the unions, of course, are squawking.  They claim a multi-million dollar war chest to fight all of Mr. Orr's decisions.  Not surprisingly, none of Detroit's municipal workers want their pensions or their health care benefits cut.  Orr says these perks need to be compressed to stop the swelling of an out-of-control deficit of a non-productive municipality.

As a small business with some 20 employees here in the suburbs, we here at the Law Blogger must admit that, while we are life-long Detroiters, it is irritating to hear the sabre-rattling unions and pension managers make these legal threats when we have seen years of lavish and outlandish junkets along with a strong whiff of corrosive privilege.  Nobody involved in a City of Detroit pension needs to take a trip to Hawaii on the City's dime; under these financial straights, that is just plain wrong.

In sum, Detroit is just a promise gone bust; gone way past the point of no return.  Now an outsider, a Washington D.C. lawyer, must try to get us our city back.

What can we do, what can you do, to help...?

Post Script:  On July 19, 2013, Detroit's Emergency Manager filed a petition under Chapter 9 of the US Bankruptcy Code.  Despite the Michigan Attorney General's challenge to the petition, the Court of Appeals said the petition could proceed, and the Bankruptcy Judge in Detroit has asserted jurisdiction over the case and has stopped all challenges in state court forums.

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Minnesota, land of 10,000 lakes, becomes the 12th state to interpret the phrase, "life, liberty, and the pursuit of happiness", to include the right to chose who you love and marry, same-sex inclusive.  Governor Mark Dayton signed the bill into law on the first business day following a 37-30 vote by the state senate in St. Paul late last week.

When it looked like this bill would pass, many citizens from the state and region congregated near the capitol in celebratory anticipation of the law's passage.  Gay marriage activists and constitutional law scholars alike hail what appears to be significant momentum toward the legal recognition of gay marriage as an individual's civil right.

Other supporters lament, however, that it will likely take decades for all the fifty states -or at least most of them- to pass laws similar to the one in St. Paul last week.

This is why all eyes are on Washington, D.C. and our SCOTUS, where release of the much-anticipated opinion in Hollingsworth v Perry is imminent as the High Court's term comes to a close next month.  At least one federal judge here in Detroit, MI has been holding a same-sex marriage case in abeyance until the SCOTUS decides Hollingsworth.

Minnesota, like Michigan, had a state-law ban on gay marriage.  The lake tides have changed, however, in the course of the past year and within the last election-cycle; the state-law ban in Minnesota was overturned and the gay marriage law passed.  We here at the Law Blogger have to wonder if this could have ever happened when Jesse Ventura was the governor...

Michigan, along with California, Hawaii, Colorado, Nevada, and a half-dozen other states, are seen as battleground states on this issue.  We cannot help but notice the high correlation between the passage of this series of states' civil rights laws, and the presence of a Democratic governor.

We will know more about the progression of this civil rights struggle next month after SCOTUS rules.

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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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Davontae Sanford (left) &
Vincent Smothers

A few weeks ago, the New Yorker ran an article titled: Letter from Detroit: The Hit Man's Tale. The piece features a multiple shooting homicide from 2007, to which two different persons have separately confessed: a hit man, and a local kid, apparently trying to acquire some street credibility.

The self-proclaimed hit man is Vincent Smothers, doing 50-100 years at the Michigan Reformatory in Ionia, MI for a series of murders-for-hire to which he confessed, including the multiple shooting deaths of 4 victims on Runyon in Detroit.

His most infamous "hit", other than the Runyon job, was Rose Cobb, the wife of Detroit Police officer David Cobb, who ultimately hung himself in a jail cell.  Smothers confessed to more than a dozen murders, mostly drug dealers, but it was Ms. Cobb's murder that caused his conscience to come clean with law enforcement. Like Cobb, Smothers attempted suicide; unlike Cobb, he was unsuccessful.

The kid, Davontae Sanford, was sentenced to 37-90 years on 4-counts of second-degree murder for the same Runyon shootings.  Sanford was initially represented by the Frank Murphy Hall of Justice legend, Robert Slamenka, following his confession to the Runyon murders.

As defense attorneys, we here at the Law Blogger are still amazed why folks tender confessions to [serious] things that they did not do.  But when it comes to juveniles, they are often manipulated by their interrogators.

Well, in this case, the apparent consequence of Sanford's confession to the Runyon murders was that the DPD ignored the hit man's detailed confession to the same dirty deeds.  They had their man on the Runyon murders [Sanford], and "that-was-that."

According to Sanford's trial transcript, Wayne Circuit Judge Brian Sullivan pushed both sides to produce a plea agreement.  Sanford's plea, in hindsight, may have been rationale given Judge Sullivan's comments at his sentencing that, had he not pled, Sanford would have been sentenced to "the bullet", i.e. life in prison.

His appeal is currently pending with the Michigan Court of Appeals; an amicus brief has been filed by UM Law's Innocence Project, led by Law Professor David Moran.

For her part, Sanford's mother claims her son was pressured to tender the murder pleas by Slameka, his initial court-appointed attorney.  For his part, Smothers, the hit man, wishes Sanford well, thinks it is time for Sanford to go home, and personally longs for the day that, "I run across whoever will kill me."

Post Script:  Nearly a year since this post, the Court of Appeals has ruled that Smothers can testify at Sanford's trial court remand hearing.

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Two cases involving the First Amendment right to freedom of religion and free speech have caught our attention here at the Law Blogger.  One case is from right here in Michigan, involving an errant blogger, while the other, involving the Amish religion, is being played out in federal court in Cleveland, OH.

First, the Amish case.  Rather than charge a group of Amish Ohioans with simple assault, the U.S. Attorney in the case of United States v Samuel Mullet, et al, charged members of a peculiar Amish synod with hate crimes; charges that involve far more complex proofs.

About two-years ago, ole Samuel Mullet [you cannot make it up] broke away from the traditional fundamentalist Christian Amish church in which he was raised, to start a renegade sect of his own in Bergholz, Ohio.  Appointing himself the lone "Bishop" of his newly-formed cult, Mullet allegedly initiated some very un-Amish practices such as, er, repetitive "sexual" counseling for the wayward young women of the cult, and disciplining male transgressors with chicken-coop confinement.  A very convenient arrangement for his eminence, if you were to ask us here at the Law Blogger.

Eventually, some of the members of Mullet's sect left Bergholz to rejoin the mainstream Amish in Eastern Ohio.  Mullet took great offense to this and allegedly, with the assistance of his sons and other cult members, forcibly cut the beards from these deserters with razor-sharp horse shears, and allegedly cut the hair of the wayward women.

Apparently, Amish regard their beards with great religious significance.  Mullet's conduct targeting his former cult members has landed him in federal court on hate-crime charges.

In order to prove their case at trial last week, the two female Assistant U.S. Attorneys in Cleveland called a series of Amish witnesses to testify, not only about the Mullet-led assaults, but also about the Amish religious culture.

The U.S. Attorney has the burden to prove not only the basic facts of the assaults, but the religious-based significance of Mullet's conduct.  As evidenced by the jury acquittals in the Hutaree militia case last year from the United States District Court for the Eastern District of Michigan in Detroit, the bizarre nature of the defendants does not always guarantee a conviction.

February 2013 Update:  Mullet and the other members of his violent cult were found guilty on several of the charged counts by a federal jury in Cleveland, Ohio.  They are now scheduled to be sentenced; prison is the expected outcome.  Accordingly, I think it is now time to cut their own beards.

The other recent jury decision in a local case exemplifying the limits of our First Amendment right to free speech is the case of attack-blogger and rebel without a clue: Andrew Shirvell.

You may recall that Shirvell, a former Assistant Attorney General for the State of Michigan, obsessively blogged about Chris Armstrong, an openly-gay former student at the University of Michigan, and the former president of the Michigan Student Assembly.  Shirvell's blogging became a national news story in early 2010, costing him his position with the Michigan Attorney General.

The blog went so far against Armstrong, accusing him of being a "radical homosexual activist, elitist, racist and liar", among other things, that Armstrong filed a defamation lawsuit against Shirvell in the Washtenaw County Circuit Court.  The case was later removed to federal court in Detroit where Shirvell was hit last week for a $4.5 million dollar jury verdict that he whines he cannot pay, and promises to appeal to the Sixth Circuit Court of Appeals in Cincinnati, OH.

Shirvell represented himself in the jury trial, making a pitch to the jury that they obviously rejected.  He claimed the blog posts about Armstrong were "political speech", and that it was protected under the First Amendment as well as due to Armstrong's status as a "public figure".

Note to our readers: After monitoring the Appellant's case in the Sixth Circuit to see whether the appellate court will uphold the trial court's First Amendment-related evidentiary rulings and jury verdict, we will put this sordid case to rest.  Shirvell's 15-minutes has long expired.

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Ever since the Great Recession put the strangle hold on the U.S. economy back in 2008, the default rate on student loans has skyrocketed.  This in turn has increased the debt collection case-load among the various United States Attorneys.

Michigan, hit particularly hard in the recession, is ranked 11th among the states in overall student debt load.  A full ten percent of the loans to Michigan students are defaulted.  The problem has become so acute, the U.S. Attorney's Detroit office hired a private law firm to aggressively pursue claims against students that defaulted on federal government loans.

Due to the number of public and private educational institutions located within the jurisdiction of the United States District Court for the Eastern District, and considering the drastic tuition increases to which these institutions have resorted, the USDC - EDMich has one of the most robust civil collection dockets in the nation.

It is crucial for college grads, law students, and other graduate students to avoid getting enmeshed in this collection docket.  Unfortunately, bankruptcy is not an option for educational loans.

The crux of the problem is that the ever-increasing student loan burden is met at graduation with a continuously shrinking job market. A veritable disaster waiting to happen; a disaster that is happening.

What is a graduate to do?  First, do not ignore the problem.  These loans will not go away, regardless of the nievete or hard luck of the student borrower.  Ignoring the debt will only remove any repayment options such as forbearance or rehabilitation periods.

Second, student debtors should thoroughly educate themselves on the student loan statutes and regulations prior to commencing negotiations with the federal lender or collection entity.  The Internet is an excellent source of information that will lead the borrower to primary resources.

Third, consider hiring legal counsel to assist you with negotiations with the lender; definately hire legal counsel if you have been sued.

Fourth, if you are a current student, scour the Internet for as many grant and scholarship opportunities as you can find prior to executing additional loans.  There is "free" money out their for students; you just have to find it.

Finally, be realistic when establishing your educational goals.  Avoid paying out-of-state tuition if at all possible.  Michigan has many great institutions of higher learning that fit the bill.

Good luck out there getting educated.  Take it seriously as you are mortgaging your future to obtain your degree.

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On numerous occasions over the years, I've represented criminally charged shooters from Detroit over in the Frank Murphy Hall of Justice. Rough ride folks.

Last week, the SCOTUS issued a very significant 5-4 decision in a shooting case straight outta Detroit. In Lafler v Cooper, and it's companion case, Missouri v Frye, the High Court held that the 6th Amendment guarantee of the effective assistance of counsel in a criminal proceeding, applies to the plea bargain process.

In the Lafler case, the defendant tossed a shot toward the head of his victim, but missed.  She fled, he pursued, spewing lead.  In the end, he caught her in the buttock and abdomen; she survived the assault.

Charged with attempted murder, Lafler faced the music over in the FMHJ; the "Murph" as we defense attorneys refer to that meat-grinder of a court house.  [Some may recall the building as the old Detroit "Recorders Court".]  As is very common in Wayne County murder and attempted murder cases, he was offered a deal: plead guilty and do less time.

His criminal defense lawyer believed he could beat the case on the theory Lafler did not attempt to murder his victim, because he shot her in the butt.  Yeah, good luck with that buddy.  Based on this legal advice, Lafler rejected the plea offer and went to trial.

The jury wasn't having it, convicting Lafler on all counts.  He was sentenceed to a term of imprisionment that far exceeded what the prosecutor offered.

The Michigan Court of Appeals rejected Lafler's "ineffective assistance of counsel" argument, and the Michigan Supreme Court declined further appeal.  Next, Lafler filed a habeas corpus petition in federal court. 

The Sixth Circuit Court of Appeals held that the 6th Amendment guarantee of effective assistance of legal counsel in all critical phases of the criminal process applies to the plea bargain process.  This decision was affirmed by a sharply divided Supreme Court, with Justice Anthony Kennedy writing for the majority, and with the conservative Justice Antonin Scalia reading his dissent from the SCOTUS chamber when the opinion was announced.

SCOTUS held that the right to effective assistance of counsel does indeed attach during the plea process; almost always THE critical point in the criminal prosecution according to Justice Kennedy.  He's right on that count.

The High Court ultimately held that when an accused "misses out" on the plea bargain process, or rejects a plea due to bad legal advice, as in Lafler, then the 6th Amendment is violated.  Justice Kennedy remanded the case to the lower federal court with instruction for that court to mandate the state court to re-offer the plea bargain, or to leave the defendant's conviction and sentence undisturbed.  The sentencing judge over at the FMHJ must perform a "balancing test" to decide which way to go.  See why we need lawyers...

Justice Scalia did not agree that the plea negotiation process was within the scope of the 6th Amendment's right to counsel.  Along with the other Justices in dissent, Scalia also crituqued the majority's failure to properly define the government parameters in this newly created constitutional right of plea bargaining.  The dissent sees years of additional litigation over plea bargains gone bad.

So pay attention to those plea offers all you criminal defense lawyers out there, or your representation may be deemed, er, ineffective.

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I remember driving to Detroit for a child support hearing the morning of Tuesday, 09/11/2001.  I was just about downtown on I-75, when the "Imus in the Morning" show reported an odd story about a "commuter" plane that had crashed into the North Tower of the World Trade Center.

The matter was being reported in those early moments as an errant plane.  The discussion was about near misses that happen more than we realize.

As Don Imus described what he was seeing on the video monitors, his entire radio show crew erupted when the second jet struck the South Tower.  I slammed my fist into the empty passenger seat of my car, shouting in disbelief.  Along with the rest of the country, I knew instantly what was unfolding in New York was no accident.

By the time I parked my car, cleared security at the Penobscot Building, and made it up to the 9th floor to the Wayne County Friend of the Court, the Pentagon had been struck by another jet and everyone was talking about being under attack.

Everyone's plans changed that day.  Some people were saying that yet another hijacked jet was heading due West toward Cleveland and Detroit.

The FOC hearing room was packed with people associated with more than a dozen cases.  Thinking I would be trapped there all morning, I started to worry about what was happening in New York and Washington D.C.  My brother Terrance lived in Manhattan back then; was he ok?  Could I even find out?

Waiting for the Referee to take the bench, I tried Terrance's cell; no answer.  I tried a second call; this time Verizon did not even make the connection.

By a stroke of luck, my case was called first.  Just as we completed our arguments and received our ruling from the Referee, two Wayne County Sheriffs announced that the Penobscot Building was closing and instructed us to vacate in an orderly but immediate fashion.  Mine was the only case called on the docket that day.

Back on the street, all the intersections were choked with vehicles like it was 5:00 on a Friday afternoon; folks were literally fleeing the downtown area.  So this is what it feels like to be under attack in America.

Later, I found out my brother Terrance had plans to play tennis at courts located near the World Trade Center that morning; they cancelled their plans due to some puddles from a rain storm that lingered on the courts.

Thinking back on it now, while I stood there chirping to the Referee about eliminating my client's child support obligation for children that DNA results said were not even his, those heroes from Flight 93 wrestled control of their jet, executing some major league damage control from which every citizen in this country has benefitted.

In my mind at least, I have always held the belief that Flight 93 was destined for the Capitol Rotunda. We still have our beloved Capitol, the very soul of Democracy, thanks to those men and women on Flight 93.

Now, let's make it count people; we've got to make it count...

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Hard to believe that right here in Oakland County, Michigan, there is sufficient crime to sustain a nearly $2 million dollar a year crime lab.  Yet that is what Oakland County Sheriff Mike Bouchard will be announcing this morning in conjunction with his department's request for an expanded crime lab.

Sheriff Bouchard is expected to tout the Oakland County crime lab's accreditation by the American Society of Crime Lab Directors; the first lab in Michigan to achieve such status.  Allocation of the resources for the proposed expansion (up to 3 additional employees and the constantly advancing hi-tech equipment with which they will work) seems like politically rough terrain in these times.

Apparently, the expansion will allow Oakland County to by-pass the lab operated by the Michigan State Police, thereby significantly reducing delays.  The MSP crime lab has been flooded with additional work since the City of Detroit shuttered its crime lab amid claims of mismanagement and abuse; claims that are being investigated by the MSP.

This blogger recently experienced the effects of the MSP lab's processing delays in a felony case in Oakland County.  It took the Oakland County Prosecutor nearly 8-months to confirm blood reports tying my client to a crime scene.

The prosecutor ended up sending the blood-work to a private lab in Virginia.  During the months it took to process the evidence, my client was sent to prison on another unrelated matter from Detroit.  

Although the delay was not the accused's fault, he sat in prison on dead time in my case, willing to plead guilty and get his Oakland County case over with.  This was not possible due to the evidentiary delays.  Not that I am asking you to shed any tears for this hardened skell; but we pay for such delays one way or another.

If an expanded lab lessens delays, expedites justice, and eases the burden on the state lab, that's all good.  It's just a shame that our community sports enough crime to make such an arena possible.

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Good news!  Governor Rick Snyder has put out an official notice for applications to fill a seat opening up on the Wayne County Circuit Court vacated by Michigan Supreme Court Justice Mary Beth Kelly.  Here is the application, should you be an interested practicing attorney living in Wayne County.

Some fantastic Wayne Circuit Judges have come from gubernatorial appointments; Michigan Supreme Court Justice Brian Zahra comes to mind.

Although not completely clear, this current spot will probably be on the family court, so you would preside over a steady diet of divorces and custody battles.

Once you get appointed, don't get too comfortable; the State Court Administrative Office has slated one Wayne County judgeship for elimination no later than January 2013.  Wayne County Executive Robert Ficano is calling for more judicial eliminations given Detroit's declining population.

Upon your completion of the judicial term to which you were appointed, if you wanted to keep your job, you would have to run for election on the Wayne County non-partisan ballot.  Don't miss those deadlines; and better start raising funds now for your election.

If this sounds good to you, then download the attached form and get cracking on those references; the Governor's deadline is fast approaching.

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State Rep. Rashida Tlaib (D-Detroit)

The Law Blogger recently posted on the Anti-Shariah movement earlier this month.  Now, the Michigan legislature is getting in on the act along with the American Bar Association.

HB 4769, sponsored by Rep. Dave Agema of Grandville and numerous other legislators, seeks to restrict contracts and agreements calling for the application of foreign laws whenever such application would conflict with the rights set forth in the U. S. and Michigan Constitutions.  The bill was introduced last week and was assigned to the Judiciary Committee of the Michigan House of Representatives.

Judges presiding over disputes involving such contracts and agreements would be required to amend the application of the foreign law to protect the litigant's constitutional rights.  If an amended application of the choice of law provision is not feasible, then the foreign law provision is deemed null and void.

Under such a provision, you could kiss Shariah Law goodbye; at least if either party to an agreement calling for the application of the Islamic code wanted to escape the burden of the contract.  This scenario would come up most often in the family law context where prenuptial agreements between religiously devout Muslims frequently call for the application of Shariah Law in the divorce judgment.  If Agema's bill passes, the family court judge could not honor the prenuptial agreement.

This possibility has Michigan's Arabic community speaking out.  Michigan's only Muslim legislator, Rep. Rashida Tlaib (D. Detroit), called a press conference to denounce Agema's bill, stating that her constituents found it "very very offensive" to the extent the bill would cast suspicion on Muslims.

Transactional attorneys that negotiate contracts with international choice of forum clauses are concerned these provisions would be subject to litigation.  Until now, such contract clauses routinely have been  enforced by Michigan judges.

In the last few years, anti-foreign law bills have sprung up in 22 state legislatures but only Arizona managed to pass their bill into law in April.  In the 2010 elections, Oklahoma voters approved an anti-foreign law ballot measure, but the proposal was short-lived having been invalidated in federal court on First Amendment grounds.

The American Bar Association passed resolutions earlier this month denouncing any federal or state laws that impose blanket prohibitions against the use of foreign laws or religious codes.

In our free society where the First Amendment reigns supreme, just who's law is it anyway?  Go figure.

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This case was straight out of Detroit.  Anthony Covington was lying next to his car at a gas station, shot in the stomach, bleeding out, but still alive and speaking with the Detroit Police.

Just before he died, he identified Rick Bryant as his shooter.  Bryant's subsequent conviction, based largely on the dying man's identification, went all the way to the SCOTUS and was decided last month.

Conviction affirmed; and in the process, one of the many exceptions to the hearsay rule is broadly expanded at the expense of accused persons everywhere.

The 6-2 decision in Michigan v Bryant erodes the confrontation clause of the Sixth Amendment requiring that all witnesses against an accused be brought to court.  Surprisingly, Justice Sotomayor wrote for the majority; Justice Giinsburg recused herself; and just as surprisingly, Justice Scalia wrote in dissent.

This case is significant to the extent that it allows police officers to testify at a trial about what an out-of-court (i.e. hearsay) witness said when that witness is no longer available for purposes of cross-examination and in-court confrontation.  Whether a dying man's declaration comes into evidence at a criminal trial depends on the "testimonial" nature of his utterance.

Prior SCOTUS decisions have addressed this problem.  Until now, two domestic violence cases established each end of the continuum.

In the well-known case of Davis v Washington, the declarant's statment -made during a 911 call- was admitted because the emergency was ongoing when the statement was made.  The presence of the emergency made the statement non-testimonial and thus, admissible in court even though the declarant was not present at the trial.

On the other hand, when a statement is made after the emergency is extinguished, as in Hammond v Indiana, then such a statement is clearly testimonial; that witness must be brought into court, or the statement is excluded from trial.  The witness in Hammond made her statement from the safety of her home during a subsequent police visit. 

The Bryant Court constructs a complicated two-perspective test to determine the "testimonial" nature of a dying man's declaration.  A reviewing court must now consider both the declarant's primary purpose in uttering the statement, along with the recipient's purpose in receiving the statement.  Say what??

Writing for the dissent, Justice Scalia, not usually a champion for the defense but an ardent supporter of the confrontation clause, thinks the question "is an absurdly easy one".  The murder victim from Detroit, in his last breath, was telling the Detroit Police who shot him so they could apprehend the shooter; not to stop any "emergency".  Therefore, the statement was testimonial in nature and should not be admissible in court according to Scalia's analysis.

Seems like each year SCOTUS issues at least one decision from Detroit and the surrounding area that has a local murder at issue.  Last year it was Warden Berguhis v Thompkins; this year it's Rick Bryant's case.

Kinda sad that we're known for the laws that get spawned from these murders.

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