Judge Colleen O'Brien

This afternoon, long-serving Oakland County Circuit Judge Colleen O'Brien was appointed by Governor Rick Snyder to the Michigan Court of Appeals. Tomorrow, the Governor has a scheduled news conference to announce his appointment to fill the vacancy on the Michigan Supreme Court created by Justice Mary Beth Kelly's surprise resignation in August.

Judge O'Brien has run for a seat on the Michigan Supreme Court in past elections and has been a persistent name mentioned whenever the discussion arises about appointments to the intermediate appellate court. She will be sorely missed by those of us who practiced before her in the Oakland County Circuit Court. A true "judge's judge", O'Brien is currently serving as the President of the Michigan Judges Association

Vacating her spot on the bench now leaves two seats open on the Oakland County Circuit Court that need to be filled soon. Judge Rudy Nichols retired over the summer and his seat has been filled temporarily by a visiting [retired] judge.

One rumor that proved true is that Oakland Family Court Judge Cheryl Matthews will move from the family court to the court of general jurisdiction. The family court is where new judges are usually assigned upon their election or appointment to the circuit court.

Judge Mathews follows former family court judges James Alexander and Martha Anderson to the general civil court. Could Judge Lisa Gorcyca be far behind?

Governor Snyder therefore now has his work cut out for him in filling these seats. Political influence will be spent in the upcoming weeks; the State Bar of Michigan will compile a list; and many a district court judge will angle for a promotion.

Some of the names we've heard over here at the Law Blogger we liked; other judicial hopefuls we're not so sure would make good judges. But we've come to accept that experienced litigators -lawyers that actually see the inside of a courtroom- are usually never considered for judicial appointments and rarely run for judge on the non-partisan ballot; go figure.

One lawyer that fits the non-litigator description on the Governor's short list for the Supreme Court is University of Michigan Law Professor Joan Larsen. Professor Larsen graduated from Northwestern University Law School and has recently served as a special counsel to the UM Law School Dean. If Professor Larsen is appointed to the High Court, she will be going from one ivory tower to another.

These recent events, and the Governor's imminent appointments to the Oakland Circuit Court, will have an important impact on Oakland County residents planning to file for divorce in the upcoming months. If you are involved in proceedings before the Oakland County Circuit Court, consider hiring lawyers that have experience in this town.

Our lawyers have seen judges in this town come, and we've seen judges go. We're still here; open for business at 8:00 tomorrow morning.

www.clarkstonlegal.com
info@clarkstonlegal.com

Leon Walker with his former
spouse in happier times

There is an interesting privacy law criminal case percolating through the appeals courts that originated here in Oakland County.  The case involves the alleged hacking access by a husband of his former wife's computer.

Last Friday, the Michigan Supreme Court denied Leon Walker's application for leave to further appeal from a Michigan Court of Appeals order that similarly rejected his effort to quash the criminal information filed in his case.


On appeal, Walker's lawyers have asserted that the legislature did not intend to criminalize the domestic relations nature of his conduct.  Also, although Walker did not challenge the constitutionality of the statute, he simply asserted that the evidence adduced by the prosecutor at the preliminary examination did not comport with the proscribed conduct set forth in the statute.

The case now goes back down to Oakland Circuit Judge Martha Anderson for further proceedings and trial.

Back in 2009, Walker suspected his wife was having an affair.  Employed as a computer technician for Oakland County, he had expertise on how to access computers.  Allegedly, he hacked into a computer that the prosecutor alleges had been gifted to his wife, discovering evidence of the affair.

This blog covered the case in an earlier post when the matter seemed to be heading for trial.

In speaking with Mr. Walker yesterday [he contacted our law firm], he said he is looking forward to his trial when all the facts will come out before a jury.  Among those facts, he says the laptop computer at issue in the case was premarital and that he never gifted it to his former wife.

Walker also claims that the Oakland County Sheriff, or their computer expert, may be responsible for evidence spoilation; they claim to have lost or misplaced his laptop.

Although the Supreme Court declined to decide the case at this time, some of the Justices hinted at their concern that the language in the statute is very broad and could be used to criminalize otherwise legal conduct.

Justice Marilyn Kelly, who voted to hear the appeal, stated her concern in the High Court's order:

The factual basis for one of the charges against defendant is that he allegedly accessed his wife’s e-mail account without her permission.   This may be the first time in the 33 years since MCL 752.795 became law and the 16 years since it was amended to its present form that the statute has been used as the basis for criminal charges for the behavior in question. 

Justice Kelly goes on to note that the Michigan legislature submitted a bill to the House Judiciary Committee last year seeking to amend the unauthorized computer access statute.  This bill would carve-out an express exception in the statute for spouses, provided that certain conditions were satisfied.

We will be keeping an eye on this hot case.

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Oakland County Prosecutor Jessica Cooper has elected to prosecute a Rochester Hills man for accessing his wife’s email account. The emails were accessed from a computer that the husband purchased for family use.

The criminalization of conduct involving computers and privacy has had federal and state law components. For example, in the federal realm, the Electronic Communications Privacy Act was initially passed to proscribe electronic eavesdropping and was significantly expanded in 1986 from traditional “wired” forms of electronic communication, to include all forms of digital electronic communication.

A few years earlier, the Computer Fraud and Abuse Act outlawed electronic espionage. The federal computer crime scheme also features several “technology-neutral” provisions allowing prosecution for a variety of criminal acts involving a computer.

By creating a statutory right to privacy in Internet communications, the federal law creates an expectation of privacy in our digital transmissions and provides a tool for selective prosecution.

But does that expectation of privacy extend to a marital home? To the family computer?

A Rochester Hills woman, Clara Walker, is the complaining witness in the Oakland County case against her third (former) husband, Leon Walker. The husband purchased a family computer and set-up a gmail account for his wife. Shortly thereafter, suspecting his wife was conducting an affair with her second husband, Mr. Walker accessed his spouse’s gmail account to get the proof.

Apparently, his suspicions were well-founded as the couple was divorced last year.

The price of this confirmation, however, was high. Walker has been charged with unauthorized access to a computer; a five-year felony charge due to Walker's circumstances. The case, charged early last year, has kicked around the 51st District Court and the Oakland County Circuit Court since March, surviving the defendant's motion to dismiss.  Trial has been scheduled for Valentines Day.

The unauthorized computer access provisions of the Michigan Penal Code under which Walker has been charged are part of a 1979 statute designed to combat identity theft and computer hacking.  The provisions in the act create a presumption that access to another person’s computer file or digitized data was unauthorized. Various access or password-related exceptions are available to rebut the statutory presumption.

Two prior convictions, or an amount involved in the crime between $1000 but less than $20,000, elevates this computer crime from a misdemeanor to a felony.  Cooper has received criticism for charging an individual for alleged conduct which was resolved in family court. As she'll tell you; "happens all the time."

The case recently began receiving national attention when Walker, formerly an IT professional for Oakland County, cast Attorney Ray Cassarr aside in favor of "Feiger Law".  Figures.

Mr. Walker’s trial, over which Oakland Circuit Judge Martha Anderson will preside, should present some interesting evidence. The private family circumstances leading to the Walker's divorce proceedings may be deemed relevant to the criminal case.  Also, given the way the statute is worded, some interesting defenses can be presented to a jury. Among them, the defense counsel could focus the jury on whether a spouse’s separate email account on a family computer is private and whether there is an expectation of privacy in such an account when your husband has the password.

Any conviction will most likely be appealed.  We here at the Law Blogger will keep an eye on this one for you.  Expect updates.

www.clarkstonlegal.com

info@clarkstonlegal.com