Former Judge Elizabeth Coker

In the legal system, there is a natural progression for assistant prosecuting attorneys to get elected to the district or circuit court. Their extensive trial experience puts them in an excellent position to run an efficient courtroom.

What about the rest of the equation? Judges must be fair and impartial for the legal system to work. A case from Polk County Texas from a few years back comes to mind that illustrates what can happen when judge's are not impartial.

Former Polk County District Judge Elizabeth E. Coker, a former assistant prosecutor herself, was busted texting questions to an assistant prosecutor that she thought the APA should ask in order to secure a criminal conviction. The matter came to light in late 2013 via a "whistleblower"; an investigator for the district attorney's office that did the right thing when he became aware of what the judge was doing.

Judges cannot conduct ex parte -one-sided- communications with the parties or lawyers involved in a lawsuit. Obviously, even innocent banter about a case can cause a drastic shift from a level playing field to one that tilts toward one of the litigants.

Since her brokered resignation in 2014, many of the defendants that were convicted in her court room have lodged appeals invoking their right to a fair trial under the 6th Amendment to the United States Constitution. Immediately following her resignation from the bench, Coker announced her bid for district attorney for Polk County; she was roundly defeated.

What this story tells us is that some lawyers are not fit to be judges. Our legal system can only work when the judges are fair and impartial.

Many prosecutors seek judgeships; many prosecutors have become excellent judges. Thankfully, all states have a judicial tenure commission charged with the investigation and prosecution of crooked judges.

Post #555

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The stunning news swept the country over the weekend; the longest-serving SCOTUS justice on the current bench, Antonin Scalia, died suddenly in Texas at age 79. His death leaves a vacancy on the bench of the High Court that is sure to create political tensions in this, a highly contentious election year.

Justice Scalia was appointed to the Supreme Court by President Ronald Reagan in 1986 and was unanimously confirmed by a U.S. Senate vote of 98-0. Whoever is nominated by President Obama will not have it so easy with Republican members of the Senate vowing to block any appointment until after the election.

A conservative justice, Scalia disdained consideration of legislative commentary about the meaning and purpose of a particular law. He focused instead on the original intent and meaning of the U.S. Constitution, as ratified by its drafters; the so-called Founding Fathers.

An unusual paradox of Scalia's constitutional originalist philosophy was its effect on matters involving criminal defendants. Justice Scalia was consistent in his judicial philosophy, studying each case before the SCOTUS, with great regard for the text of the specific clause or amendment at issue.

In the cases of the Sixth Amendment confrontation clause and the Fifth Amendment right to a fair trial at the sentencing phase, citizens accused of serious crimes benefited from Scalia's originalist approach.

We here at the Law Blogger took advantage, for example, of Scalia's majority opinion in Crawford v Washington, a Sixth Amendment confrontation clause case, when the Washtenaw County Prosecutor convicted one of our clients based, in part, on a DNA analysis that featured testimony from only one of the 3 lab technicians that prepared the report. Scalia's majority opinion was very useful in the ultimate habeas corpus petition filed in the United States District Court for the Eastern District of Michigan.

Another example of Scalia's handiwork in the realm of the constitutional rights of the accused is his dissent in the 2000 case of Apprendi v New Jersey, which ripened into a majority opinion 4-years later in Blakely v Washington, holding that a judge cannot fashion a sentence based on facts that were not proved beyond a reasonable doubt by evidence submitted at a trial. This decision played a part in scraping the federal sentencing guidelines and, more recently, the Michigan sentencing guidelines. Now, facts that give rise to a punishment are either assented to by the convicted defendant, or determined by a jury beyond a reasonable doubt; they can no-longer spring from the pages of a probation intake officer's report.

Neither Scalia's Sixth Amendment confrontation clause opinions, nor his Fifth Amendment sentencing decisions are pro-conservative. Yet, they are consistent with his originalist theory of constitutional law; and they are necessary for a truly free society.

So now what? President Obama has vowed to do his duty as President and make an appointment to fill the vacancy under Article II, section 2 of the U.S. Constitution. The Constitution also provides, however, for such an appointment to receive confirmation by the Senate.

This is an election year and at least one of Justice Scalia's former law clerks, Ted Cruz, is running for the Republican nomination for President. Senator Cruz has remarked about an informal unwritten convention in American politics that a sitting but "lame duck" President does not get to have his SCOTUS nomination confirmed.

In the 20th Century alone, there were six justices appointed and confirmed during a sitting president's last year in office before an election: Justice Anthony Kennedy in 1986; Michigan's Justice Frank Murphy in 1940; Justice Benjamin Cardozo in 1932; Justices Louis Brandeis and John Clarke both in 1916; and Justice Mahlon Pitney in 1911. Therefore, we here at the Law Blogger have to wonder what Senator Cruz is talking about.

Post #524

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We here at this Blog have been there.  You put your heart and soul into a case that goes to trial, giving it everything you've got, sometimes putting your reputation on the line; working into the night and on weekends to prepare.  Getting "paid-by-the-hour" for such ventures is rare, in fact, you rarely ever post all those hours on the peg board at the office. 

Sometimes, as in the case of Kwame Kilpatrick's lawyer, James Thomas, it's a court-appointed gig with a low flat fee.  And when the jury does not buy-into your client's defense, the client often views the guilty verdict as your fault.

Apparently, Kwame has not just been sitting idly in his cell in Milan.  In a recent post-verdict motion for a new trial filed with federal judge Nancy Edmunds, the former Detroit Mayor revealed that he filed a grievance against Mr. Thomas with the Michigan Attorney Grievance Commission [which apparently already has been dismissed], and again raised claims of "ineffective assistance of counsel" in violation of Hizhonor's Sixth Amendment rights.

Well, as one of the tax-payers that paid for that defense, and as a criminal defense lawyer myself, I cannot say that I am surprised.  This is a common tactic when an accused gets convicted in a case where the defendant is adamant about his innocence and ignores both the facts and the reality of his situation, as Kwame has done throughout his tortured proceedings.

The exact same scenario is unfolding out in Las Vegas where O.J. Simpson has also raised a claim of ineffective assistance of counsel against his long-time lawyer, Yale Galanter.  Simpson's case is in the process of exhausting his state law remedies so that he can proceed with a Habeas Corpus petition in federal court.

We here at this Blog certainly champion the accused's constitutional rights; those rights include raising constitutional issues post-trial, and testing one's conviction in the appellate courts.  Most often, those rights come at the tax-payers expense.

And if you've been practicing criminal defense long enough, eventually, you are going to get the blame for a client that goes down in flames.  My veteran legal assistant has a poster in her office for just such an occasion: "Stay Calm and Carry On."

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Jacob Trakhtenberg

Sitting on a parole board must be tough.  When reviewing a convict's petition for parole, the board member has an enormous amount of pressure to "get it right".

One option is to take the easy route by erring on the side of caution and letting the petitioner's sentence "run it's course".  Eventually, if flopped enough times by the parole board, a convicted felon simply gets released from the penitentiary by serving a statutory maximum period of incarceration.

That is what happened to two convicted felons that have been making headlines this month: one local; the other from Upstate New York.  This post takes a look at the circumstances of the cases, addressing the challenges of the parole system presented in each.

First, the Michigan case.  In 2005, Jacob Trakhtenberg, a former Chief Engineer for Chrysler, was charged in Oakland County Circuit Court with 5-counts of criminal sexual conduct.  The charging instrument did not specify dates of the alleged sexual assaults against his minor daughter, 8-years old at the time, and was silent as to the specific nature of alleged sexual contact.

His initial court-appointed lawyer elected to conduct a bench trial before former Oakland Circuit Court Judge Deborah Tyner, who found the accused guilty on 3 of the five charges.  One of the alleged deficiencies of Trakhtenberg's court-appointed defense counsel was that she did not conduct any investigation whatsoever relative to the prosecutor's disclosed witnesses.

Trakhtenberg was in prison during the years in which his appeals have [twice] traveled the gamut of the Michigan appellate courts.

Although his appeals have finally gained some traction thanks to our friend, appellate specialist Robyn Frankel, this relief may have come too late for the convicted felon.

In November, the defendant was placed on parole, having served 2/3 of his maximum 10-year sentence, and being eligible for release under the applicable Michigan statute.  His second appeal, known as a "6500 appeal" after the specific court rule that provides for such a last bite at the procedural apple, was decided in his favor last week in a Michigan Supreme Court opinion that remanded the case to the Oakland County Circuit Court for a new trial.

In a 4-2 decision [Justice Hathaway abstained], our High Court held:

In this case, defense counsel failed to exercise  reasonable professional judgment when deciding to forgo particular investigations relevant to the defense, including her
failure to identify the factual predicate of each of the five charged counts of criminal sexual conduct, her failure to consult with key witnesses, and her failure to sufficiently develop the defense presented at trial.  Accordingly, her representation fell below an objective standard of reasonableness.  Defendant was unfairly prejudiced by counsel’s deficient performance.  The key evidence against defendant was the complainant’s testimony.  Therefore, the reliability of defendant’s convictions was undermined by defense counsel’s failure to introduce impeachment evidence and evidence that corroborated defendant’s testimony that defense counsel was unaware of because she decided to forgo those investigations.  Had the impeachment evidence and the evidence that corroborated defendant’s testimony  been introduced, there was a reasonable probability that the result of the trial would have been different.  [Syllabus, page 2]

The effective assistance challenge to Trakhtenberg's conviction, ultimately successful in this case, is a critical component of an accused's basket of Sixth Amendment rights guaranteeing a fair trial.

No word yet as to whether the Oakland County Prosecutor will go forward with a second trial considering Defendant has already served a maximum sentence.  Since the completion of his first set of appeals, the initial trial judge, Judge Tyner, resigned from the Oakland County Circuit Court bench and was succeeded on the case by Judge Daniel O'Brien.

The tough part of criminal sexual assault convictions is that the Michigan Department of Corrections has a bright-line policy whereby the offender must complete sexual abuse counseling prior to achieving eligibility for parole.  Often, convicted offenders maintain their innocence, adhering to a campaign of total denial.  This renders them ineligible for an early parole.

While the resulting extended prison stay is justified for a properly convicted abuser, it is a tragedy if the person is wrongly convicted as concluded by the Michigan Supreme Court in Trakhtenberg.

Meanwhile, in Webster, NY, the criminal justice system attempts to make sense of how William Spengler should have been handled.  Spengler, a paroled murderer, allegedly killed two first responders to a fire he started as a decoy prior to killing himself on Christmas Eve.

It has now come to light that Spengler was paroled after serving a 17-year prison sentence for murdering his grandmother with a hammer.  Prior to his release from prison, 4 consecutive parole boards denied Spengler parole despite finding him to be well-spoken, well-behaved and intelligent.

After being released from prison, Spengler kept to himself for about a decade, until he apparently solicited the assistance of a young neighbor's daughter to purchase a shotgun and an assault rifle.  We now know that these were the weapons used in Spengler's murder-suicide.

Comparing these two cases brings the difficulty of the parole process into focus.  Once a person has been warehoused in prison for several years, what does the justice system do with them upon release?

What about persons wrongfully convicted [or unconstitutionally convicted] such as Trakhtenberg?  If ultimately acquitted, he may be entitled to millions in civil damages.  Will this potential exposure play into the Oakland County Prosecutor's decision to re-try the former automotive engineer who has already served all the prison time he could serve?

Are hardened killers such as Spengler ever truly rehabilitated?  Apparently, there is always a significant risk in allowing such killers to walk free among us.

This blog does not claim to have the answers to these tough questions.

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Chief Justice John Roberts

On the penultimate business day in June, the United States Supreme Court concluded its term with the announcement of its historic decision in National Federation of Independent Business v Sebelius; the Obamacare case that tested the constitutionality of the Affordable Care Act.  As unlikely a jurist as could be found, a visibly uncomfortable Chief Justice John Roberts, announced that Obamacare was upheld in a 5-4 opinion that he authored.

The ACA was upheld on the somewhat questionable grounds of Congress' power to levy a tax.  More than a few legal scholars characterize the so-called "individual mandate" requiring individuals to secure health insurance or pay a penalty, as Congress levying a punishment, not a tax.  The consensus among these same scholars, however, is that challenging the constitutionality of the ACA was a colossal waste of time; legislation of this nature has routinely passed constitutional muster dating back to the social programs of the 1930s.

We here at the Law Blogger cannot wait for the contribution from our guest blogger, Professor Robert Sedler, to weigh in on this decision.  Stay tuned for that.

Here is a summary of some of the more significant decisions issued by SCOTUS this term:

• Churches are entitled to a "ministerial exception" to their adherence to state and federal employment laws, enabling them to hire whomever they want to stand at the pulpit; the remaining question in this case is how deep into the employee roster this ministerial exception goes.

• Police must secure a warrant, as required under the 4th Amendment's "search and seizure" clause, prior to attaching a GPS tracking device on a vehicle.

• Corporations and unions can spend unlimited amounts of money on political campaigns as the Court upheld it's game-changing Citizens United decision and applied it to a Montana law.

• An accused has a right to the effective assistance of legal counsel under the Sixth Amendment during the criminal plea-bargaining process.

• The prosecutor's expert witness may discuss laboratory test results [usually involving blood samples and DNA] without the live testimony of lab analysis that assisted in processing the sample, and this does not violate the "confrontation clause" of the Fifth Amendment.

• State criminal laws that require that a juvenile convicted of murder be sentenced to life in prison without the possibility of parole are unconstitutional.

The justices will reconvene for the 2012-2013 term in October.  Must be nice to be one of nine justices on the High Court.  After deciding such weighty decisions that affect our lives, you really get to enjoy your summer!

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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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Since 2009, I have served as a roster attorney for the Michigan Appellate Assigned Counsel System (MAACS). While a MAACS roster attorney hones his knowledge of the many facets of criminal law in the appeal context, most assignments involve assessment of yet another guilty plea appeal. No glory in that, to be sure.

Many of the guilty-plea appeals involve the Sixth Amendment issue of ineffective assistance of counsel. Often, youthful offenders claim they are forced by trial counsel to "take a deal" that they later regret. Rarely do these claims have merit. In almost every case, the Michigan Court of Appeals is not persuaded that the accused youth tendered anything but a knowing and voluntary guilty plea.

The mantra of the trial court taking the plea comes to mind: "Are you pleading guilty here today because you are guilty of this offense?"  The accused, sheepishly, states in the affirmative.

Last year, however, the SCOTUS decided Padilla v Kentucky. The case reversed the conviction of a legal immigrant on the basis of ineffective assistance of counsel where the accused was not properly and fully advised of the immigration consequences of his guilty plea.  Padilla was told not to worry about deportation because he had been in the country so long.

The Padilla case has drawn much attention among scholars of the criminal law; not for its immigration component, but for how it has expanded the scope of a lawyers duty to advise their clients of all the myriad consequences associated with their plea.

These consequences go far beyond the mere risk of incarceration and fines.  The potential "collateral" consequences could an individual's right to obtain a loan, obtain insurance benefits, bear arms, to vote, serve on a jury, serve as a foster parent, to participate in particular professions, terminate pension benefits, determine where a person can live, result in the loss of child custody, and in the case of sex crimes, doom the individual to a near lifetime of onerous registration requirements.  This is but a partial listing of the potential consequences.

Difficulties certainly arise for the lawyer facing her client's guilty plea.  The collateral consequences associated with the plea are often scattered across the Michigan Penal Code, and the federal statutes.

Defense counsel is often oblivious to this trap-laden universe.  The courts are wholly unconcerned with consequences to a plea that they do not impose.  For their part, prosecutors are not troubled with matters outside their direct control.

Add to this the fact that Michigan's court-appointed defense counsel advises the accused on nearly a pro-bono basis, and you have the makings for a constitutional catastrophe; or at least an imminent collision with the Padilla holding.

In the Internet-Age, as the number of people with criminal records have increased, so has the ability of employers, educators, lenders, and landlords to gain direct access to those records.  This makes obtaining legal advise as to the collateral consequences of a guilty plea all the more compelling.

Lawyers will have to be sharper than ever as they ambulate across the minefield of the criminal case.  Keep your eyes wide open has always been a trait of the best criminal defense attorneys.

Related story in Sunday NYT:  No sooner was this post uploaded when the Times published a story on the problem with monitoring people that once had the right to carry a weapon, but lost that right due to a felony conviction.

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Prior to the Civil War, Michigan was one of the first states to get in on the ground-floor of providing legal defense to the poor and the accused.  The constitutional right of the accused to an attorney was enshrined in the seminal case of Gideon v Wainwright, 372 US 335 (1963).

Things have changed.  Michigan has gone from the "first-floor" to the cellar in terms of the quality of court-appointed criminal defense; at least as measured in terms of compensation.

The ACLU is challenging the public defender system in the case of Duncan v State of Michigan.  The ACLU's brief argues that the quality of court-appointed legal defense in Berrien, Muskegon and Genesse Counties falls below the Sixth Amendment's guarantee of effective legal counsel.

The case was filed in the Ingham County Circuit Court where the trial judge certified Plaintiff's case as a class-action.

Defendants Governor Jennifer Granholm and the State of Michigan are represented by the Michigan Attorney General, Mike Cox.  The AG's brief asserts that the duty to appoint and compensate public defenders falls to the local circuit court judges.

The AG brought a motion for summary disposition which was denied by the trial court.  The court, however, granted the AG's motion to stay further proceedings until appeals from the decision were decided.  The Court of Appeals affirmed the Ingham Circuit Court's rulings granting class certification and denying summary disposition.  In a lengthily dissent, Appeals Judge William C. Whitbeck asserted that the case, which he described as a "fundamental challenge to Michigan’s system for operating and funding legal services for indigent criminal defendants" essentially could result in an unconstitutional violation of the separation of powers doctrine.

The case is scheduled for oral argument before the Michigan Supreme Court on April 13, 2010.  Meanwhile, the state legislature is considering HB 5676 which seeks to establish a state-wide public defender system, along with the essential funding.  The sponsors of the proposed legislation, Bob Constan and Justin Amash acknowledge they will have a very tough time to get this type of funding approved in the midst of the sustained economic downturn.

Never short on resources, however, the ACLU is bringing their game, on this same issue, to the United States Supreme Court in the case of Vermont v Brillon.

The ACLU's suit, and the proposed legislation have attracted national attention.  (The Law Blogger picked-up on a National Public Radio feature that addressed the critical state of Michigan's court-appointed criminal defense.)  The most likely result of all these efforts will be, "more of the same".  The defense bar will continue to soldier on, as underpaid under-resourced champions of the constitution.

Defendants, for the most part, will continue getting convicted.  No tears shed here, unless the accused is truly innocent.  Then it's a real tragedy as well as a threat to our individual rights and the criminal justice system.

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Last year, I prepared and argued a series of appeals for a man convicted in Washtenaw County of sexual assualts near Eastern Michigan University.  He received life sentences in six separate cases.

The primary issue in each case was identification.  Due to the way the victims were raped, they never saw their attacker's face.  Condoms and other precautions minimized physical evidence left at the respective crime scenes.

In one of the cases, however, Washtenaw County Sheriff detectives were able to recover a small semen sample.  The Michigan State Police crime lab contracted with an out-of-state forensic laboratory that produced a report concluding the sample matched the defendant's DNA.

At defendant's trial, the Washtenaw County Prosecutor called the MSP lab tech and the out-of-state lab tech to testify about the matching DNA.  On appeal, I argued that defendant's Sixth Amendment right to confront witnesses was violated because the out-of-state lab tech relied on procedures and internal reports created from other technicians that were not present in court to testify.

Defendant's convictions were affirmed by the Michigan Court of Appeals and his petitions for writs of certiorari to the Michigan Supreme Court were denied last summer.  Around the same time, however, the United States Supreme Court decided Melendez-Diaz -v- Massachusetts.

In the Melendez-Diaz case, Suffolk County, Massachusetts law enforcement utilized lab "affidavits" concluding that a seized substance was cocaine.  The Supreme Court held that such an affidavit was insufficient to convict and that the lab technician must testify in open court.

In the few short months since the Melendez decision, law enforcement and prosecutors have raised an outcry about the increased costs and difficult logistics associated with producing the in-court testimony of lab techs.  The defense bar, on the other hand, has hailed the decision as a victory for individual constitutional rights.

In a rare move, the U.S. Supreme Court has scheduled oral arguments for January 2010 in Briscoe -v- Virginia; a case raising the same issue the high court so recently decided in Melendez-Diaz.  The New York Times has speculated that Briscoe will not overturn but rather, simply explain and clarify the Court's earlier ruling on lab technicians.  One such procedure would be to make lab technicians available for cross-examination rather than requiring their testimony in the prosecutor's case-in-chief.

At this date, my client is left with only a series of federal court habeas corpus petitions based on the Sixth Amendment.  Although his state-court remedies have been exhausted, the decisions of the United States Supreme Court, discussed above, will have a significant impact on his habeas petitions soon to be pending in federal court.

The slightly increased cost to the state of securing the in-court testimony of all the lab techs that worked on his DNA sample is a small price to pay for our collective constitutional liberties.

The goal of a criminal defense at trial is to force the government to prove the elements of their case.  The goal of all criminal appellate representation is to ensure that the defendant's trial and sentencing were fair. Without these safeguards, our Sixth Amendment right to counsel is meaningless.

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