On Saturday, the Michigan Supreme Court issued an order granting leave for an appellant that had been plea-convicted of sexually assaulting a 12-year old victim back in 1994. Twenty years later, in 2014, the Wayne County Circuit Court granted defendant's motion to be removed from Michigan's sex offender registry.

The Michigan Court of Appeals reversed the Wayne Circuit Court, reinstating the CSC-II convict's lifetime registration requirement. At the time of his conviction for groping and fondling the breasts of a then-12-year old girl, the defendant was 19-years old and thus, eligible for Holmes Youthful Trainee status.

This particular defendant successfully completed a 3-year probationary term and his conviction was dismissed back in 1997. His registration requirements under the sex offender registration act [SORA], however, lived on and follow him to this day.

No one is going to shed a tear for any convicted felon that took advantage of a young girl. Nevertheless, the Michigan Supreme Court, in its order granting leave to appeal, instructed the appellate lawyers to brief the following long list of issues:

• Whether placement on the SORA amounts to "punishment"; 
• Does it matter whether the plea-convicted felon attained trainee status; 
• Whether the SORA registration requirement violates a trainee's constitutional due process when a conviction is removed based on successful completion of probation; 
• Whether application of the civil regulatory scheme contained in the SORA violates the due process of a trainee, even if the SORA requirements are not considered "punishment";
• Whether the requirements of SORA that were instituted after defendant's conviction amount to ex-post-facto punishment and are therefore unconstitutional; and finally,
• Whether lifetime SORA registration constitutes "cruel and unusual" punishment in violation of the Eighth Amendment to the Unites States Constitution.

With that many questions directed to be briefed, the ultimate opinion in this case will be an outright referendum on the constitutionality of the SORA. Such a referendum has been a long time in the making; the Michigan Supreme Court was patient in order to select its case wisely.

We will watch and monitor this case. Oral argument will occur yet this term, after the briefs have been filed; an opinion likely will be issued sometime in June, just prior to the conclusion of the High Court's term.

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Post #513

Newly Installed Judge Tom Cameron

Congratulations to our good friend, Tom Cameron, on his recent gubernatorial appointment to the Wayne County Circuit Court.  For more than a decade, Tom served the Office of the Attorney General as the Bureau Chief of the Criminal Division, first under Mike Cox, and then for Bill Schuette.

Over these years, Tom has managed some of the best criminal prosecutors in the state; he has handled the toughest, most significant criminal prosecutions in Michigan.  His last boss, AG Bill Schuette, said that Tom, "is thoughtful and committed to the rule of law.  Most importantly, his temperament is perfectly suited to service on the bench."

This is a good thing because not every career lawyer is suited for the bench.  Like the AG, we too think Tom will do well in his new position and the people of Wayne County will benefit from his appointment.

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Davontae Sanford in better times.

This blog ran a post detailing the plight of young Davontae Sanford back in 2012.  At age 17, Sanford was sentenced, based on his confession, to 37-90 years on 4-counts of second-degree murder for the 2009 Runyon Street shootings in Detroit.

It is widely accepted that his was a false confession and that the real murderer was Detroit hit-man Vincent Smothers, who also confessed to the same crimes; he has repeatedly stated Davontae had nothing to do with the quadruple-murders.

The consequence of Sanford's [false] 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 to second degree murder, in hindsight, may have been rational given Judge Sullivan's comments at his sentencing hearing that, had he not pled, Sanford would have been convicted of first degree murder and sentenced to "the bullet", i.e. life in prison, no parole.

The young man's appeal was decided in his favor last year when the Michigan Court of Appeals remanded his case back to the Wayne County Circuit Court, vacating the lower court's denial of his motion to withdraw his guilty plea, and instructing the lower court to consider expert witness testimony relative to false confessions.  The Court of Appeals also ruled that the hit man, Smothers, could testify at Sanford's remand hearing.

Well, now the Michigan Supreme Court has gone and reinstated the lower court order denying Sanford's request to withdraw his guilty plea.  The High Court held out one last thin straw of hope to Sanford: its order does not prejudice Davontae's right to file what in our industry is known as a 6.500 moition; the last chance "hail Mary" for a convicted felon.

So now it's on to the 6.500 motion; perhaps the judge presiding over the matter in the Frank Murphy Hall of Justice will decide to hear from the experts on the topic of false confessions; perhaps the judge will want to hear from the Detroit Hit Man about these murders.

Either way, Davontae has wasted away in the MDOC for the past five-years for a crime most believe he did not commit.  We here at the Law Blogger need to believe that, despite his false confession, his is a soul worth saving...

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Wayne Circuit Family Court Judge Deborah Ross Adams

Truly, divorce is Hell.  No one can attest to this more directly than embattled Wayne County Family Court Judge Deborah Ross Adams.

After 3-years of her own gruelling divorce proceeding [understandably transferred from Wayne County to the Oakland County Family Court] during which Judge Adams ducked media-scrutiny of the disintegration of her 30-plus year marriage, the good Judge really hit the jackpot when her attempts to "right a wrong" at the midnight hour of her divorce went totally awry.

The divorce case went awry due to Judge Adams' own self-defeating and over-reaching conduct.  Both the Judicial Tenure Commission and a Special Master appointed by the Michigan Supreme Court found earlier this year that Judge Adams lied to the judge presiding over her divorce proceedings and signed her former attorney's name to a  petition without his permission, recommending a 180-day suspension without pay.

The appellate lawyer for the Judicial Tenure Commission even went beyond the recommended 180-day suspension, asserting in oral arguments before the Michigan Supreme Court that because Judge Adams has such little respect for the truth, that because she willfully misled a tribunal and jurist [i.e. Oakland Circuit Judge Mary Ellen Brennan] in open court, she did not deserve her elected seat on the Wayne County Family Court.

For his part, our friend Cyril Hall had his hands full on behalf of Judge Adams during the High Court oral arguments.  Mr. Hall emphasized his client's exemplary judicial record while downplaying the materiality of her one-time lies under Oath during a pro-confesso divorce proceeding.

Justices Robert Young and Stephen Markman pressed Mr. Hall on the importance of truth within a judicial proceeding, no matter how perfunctory, and queried whether his client was perhaps held to a higher standard, being herself a family court jurist facing a similar docket as Judge Brennan here in Oakland County.

Justice Markman, in particular, asked Cyril to "fill-in-the-blank" for the following statement:

This Court [Supreme Court] preserves the integrity of the judiciary, and maintains public trust in that judiciary, by allowing a judge to remain on the bench despite having testified falsely under oath, because...[why?].

Mr. Hall simply did not have a good answer for Justice Markman.

Having listened to the oral arguments, we here at the Law Blogger predict that the Supreme Court will uphold the Judicial Tenure Commission's recommended suspension, but will decline the request of the JTC's attorney to remove Judge Adams from the Wayne County bench.  Even Justice Young noted that this requested sanction exceeded the appellate attorney's own client's recommendation.

Hopefully for the family law litigants that will appear before Judge Adams in the upcoming years, assuming she survives this personal and professional setback and retakes her position on the Wayne Circuit's Family Court, she will have learned a valuable bedrock lesson upon which our entire legal structure is based: the truth matters in any and all judicial proceedings.

Post Script:  Judge Adams was removed as a judge by the Michigan Supreme Court's decision.  In August 2013, Governor Snyder appointed Bodman attorney Charles Hegarty to fill this judicial vacancy.

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We have all heard the term “visitation” before, especially if you have been involved in a child custody dispute or divorce.  The term most often used by family law lawyers and professionals is “parenting time”; referring to the legal right [and obligation] of a parent to spend time with one’s child following a divorce. 

Even grandparents, under limited and specific circumstances, may have a legal right to visit with their grandchildren according to Michigan law.

But what about siblings?  Does a brother or sister have the right to visit their sibling, if for some reason they are no longer living within the same household? 

The short answer is that sibling visitation is not recognized as a legal right in Michigan.   The Child Custody Act does not provide for visitation rights between siblings.  Add adoption into the mix and the result remains the same – but for a more specific reason.  

Earlier this month, the Michigan Court of Appeals grappled with, and attempted to decide

this very issue in Wilson v King; a published thus binding opinion of the intermediate appellate court.

Marquita Wilson, the plaintiff-mother in this case, had three children who were eventually adopted into a new family in 2008 after her parental rights had been terminated.  Ms. Wilson then gave birth to a fourth child; Mac.  

The adoptive parents of Ms. Wilson's three children initially allowed Mac to visit with his siblings.  Sadly, for reasons not stated in the Court of Appeals opinion, the adoptive parents ultimately discontinued these sibling visits.  

Ms. Wilson filed suit on behalf of Mac in Wayne County Family Court.  The family court judge dismissed the claim on the basis that the right to “sibling visitation” does not exist under Michigan Law.  On appeal, Ms. Wilson argued that Michigan law does provide for a cause of action for sibling visitation and that the lower court had erred in dismissing her case.  

The Court of Appeals upheld the trial court’s decision – but did not find one way or the other on whether or not Michigan law provides for a cause of action for sibling visitation.  Instead, the Court focused on the fact that Mac’s older siblings had been adopted.  

Adoption legally severs any ties to the prior, natural family, and creates, in its place, a new adoptive family recognized at law.  This means that, legally speaking, Mac’s older siblings (once they had been adopted) were no longer his legal siblings in the eyes of the law.   

The Court of Appeals held that even if a cause of action regarding sibling visitation existed (which the Court made sure to footnote that they offered “no opinion as to the viability of such a claim”) in Mac’s instance the claim must fail as the three adoptive children were no longer his siblings. 

While we recognize the psychological importance of eliminating contact with biological parents in order to facilitate growth in the new adoptive family, this ruling strikes us as similar in spirit to the old paternity act that denied a biological father standing to seek any parenting time with his child whatsoever.

The ruling seems to foster the notion of wiping-out all traces of the adopted child's  biological family.  Many adopted children, as they mature, seek out traces of their biological families.  Some of these children, as they mature into adulthood, obsess over their lost families and seek therapy to deal with the loss.

At base, however, there is really no-way in cases like this to allow sibling visitation, without also focusing on the biological parents.  Our adoption laws currently do not provide for the maintenance of two families; just one: the adoptive family.

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In an unpublished decision released toward the end of last week, the Michigan Court of Appeals found fault with the Wayne County Family Court in a divorce case that touched on the application of Shariah law.

Specifically, the Hammoud case involved the imposition of spousal support in a realaitively short-term marriage. The Court of Appeals was troubled that the family court conditioned the duration of the "open ended" support on wife obtaining an "Islamic divorce" decree, noting:

As structured by the trial court, plaintiff has no incentive to become self-sufficient or to vigorously pursue an Islamic divorce as she is assured an ongoing income ad infinitum.  The trial court also failed to address or seek further clarification of plaintiff’s contention that she was in possession of a document that would permit others to assist or assure her the attainment of an Islamic divorce without defendant’s consent.  Plaintiff indicated that an agreement existed that would permit her brother and brother-in-law to authorize the Islamic divorce, potentially rendering it within plaintiff’s control to prolong her receipt of spousal support.

The implication, as held by the Court of Appeals, was that the family court pressured the husband into agreeing to an Islamic divorce when, under the establishment clause, it had no power to do so.

The Court of Appeals was not impressed with the lower court, the litigants, or their attorneys.  The case also featured an [untranslated] Arabic language prenuptial agreement proffered by husband to support his position that his wife agreed to forgo any spousal support.

The Hammoud case received national attention with a reference in Law Professor Eugene Volokh's law blog; the Volokh Conspiracy.

We here at the Law Blogger agree that family court is not the place for the implication or enforcement of religious laws; that is for the house of worship and is a private matter between the litigants.

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In my law practice, I drive from various courts across Michigan in a 2009 Ford Explorer.  That vehicle has 110,000 miles burned into it over the past 3-years.  That's a lot of court appearances.

Here are the numbers behind those miles for this past calendar year.


Michigan Court of Appeals.  Although I had not argued before the Court of Appeals in more than two years, I had 4 arguments before the intermediate appellate tribunal in 2011.  Also filed 25 briefs in that court; most of them applications for leave to appeal guilty pleas.  In the first week of 2012, I have two arguments.

Oakland County.  This is where we hold a "home field" advantage.  In 2011, I appeared in the circuit court, including the family court division, 118 times.  An additional 86 appearances were made in the Oakland County Probate Court.  Getting to know the judges pretty well over there.

Getting to know the Friend of the Court Referees as well with 30 trips to the FOC for early intervention conferences, or evidentiary hearings.

Macomb County.  Went "East Side" for 24 court appearances in 2011, all of them in the circuit or family courts; no East Side probate court appearances this year.  Many of these were for the Attorney General.

Wayne County.  In 2011, we made 20 court appearances in the "D"; fifteen were in the circuit and family courts, while the remaining 5 were all in the Wayne County Probate Court.

Genesee County.  Just to the North of our offices [we can be in Flint in less than a half hour], I made the dash to the Genesee County Circuit Court 10 times in 2011.  In addition, we made 4 trips to the Genesee Friend of the Court for hearings.

Livingston County.  Only five appearances in Livingston County Circuit Court this year; all on a single divorce case.

District Courts.  In 2011, we appeared in many of the various district courts placed throughout the counties in which we appear.  80 district court appearances to be precise; most of them for criminal matters.

Administrative Hearings.  Only three of these this year; for drivers license restorations and an implied consent refusal.

Keep in mind folks, these statistics are for but one attorney in the Karlstrom Cooney law firm; my partners have many other court appearances in these courts.  They do have, however, more "transactional" law practices than mine.  Along with Kay Caruso, Stuart Cooney, and Peter Keenan, we are the firm's litigators.

So these are my numbers for this year; it was a productive one.  We have our clients to thank for keeping us well engaged.

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Yesterday, the Wayne Circuit Court joined Oakland and a few other select counties that accept electronic case and document filings.  For the time being, however, only Wayne County's contract case filings, coded with the "CK" case code, are mandatory e-file cases; the rest of the docket still requires old-fashioned paper.

Oakland County has had e-filing for years; it has personally saved me hundreds of man-hours and my clients thousands of dollars.  There are still docket pockets in Oakland County, however, that have resisted the e-filing system.  Divorces with children, for example, have eluded Oakland County's e-file requirement.

An attorney must do a few proactive things to successfully get on board with the e-filing requirements.  First, invest in a good computer system and Internet connection.  Second, go to the training sessions routinely offered by the courts and bring your support staff.

While e-filing is here to stay, some critics assert that e-filing requirements reduce access to the court system for in pro per litigants who lack sufficient computing capital for electronic filing.  For these folks, there is still a paper option, but there are additional hoops to jump through.  Folks just need to get on board.

There can be no doubt that electronic filing is here to stay.  The federal system has been completely electronic via the PACER system for a decade; the Michigan appellate courts have been on an electronic filing system [albeit a different one from the county courts] for years and it works great.

Although we are still several years off from a 100% electronic filing system, it's coming.  The next hurdle for attorneys will be to make the commitment to a completely paperless law office.

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This week I had a 3-day jury trial. When it was completed, I walked out of the courthouse but my client did not.

In such criminal cases, at the brink of trial, it is common that the plea discussions give an accused serious pause. Rejection of a reasonable plea offer can result in significantly more time in prison thus, the stakes are high.

The counsel-driven plea process is at the heart of a Michigan case up for oral argument this week at SCOTUS: Lafler v Cooper. The case comes from the Wayne County Circuit Court; straight out of the Frank Murphy Hall of Justice.

The female victim in the case was shot 4-times by Anthony Cooper: twice in the buttocks, once in the abdomen, and once in the hip.  She survived these gunshot wounds.

Cooper's lawyer rejected a plea offer that would have capped his prison term to the lower end of his sentencing guidelines on an attempted murder charge.  The offer was rejected on grounds that the medical evidence in the case would demonstrate that Cooper was only trying to maim his victim; not kill her.  Counsel pushed for a reduction of the charges to assault with intent to do great bodily harm.

Well, as I've learned over the past two decades: "good luck with that..."

After his jury trial conviction, Mr. Cooper was sentenced to 135-360 months in prison.  On appeal, he raised a claim that he received ineffective assistance of counsel during the plea bargain phase of his case in contravention of his rights under the Sixth Amendment to the U.S. Constitution.

With his appeals exhausted in the state courts, Cooper filed a petition for Habeas Corpus in federal court.  The federal court ruled that the state appellate court erred by not accounting for the "affirmatively deficient advice" of Cooper's trial counsel in rejecting the prosecutor's initial plea offer.

The remedy: the federal court ordered specific performance of the initial plea offer: i.e. a 50-month prison term.  Understandably, the prosecutor appealed hence, the case now resides on the SCOTUS docket.

We will keep an eye on this one for you as it implicates how defense counsel handles the all-important plea bargain process.  So stay tuned...

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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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They were students at Cooley Law School in the late 1990s.  She was married; he was from Buffalo, New York. 

Their long-term adulterous affair eventually led to the birth of a child in 2002.  Although Mother's husband was on the birth certificates of both her children born during her marriage, she informed her law school lover that he was the biological father of the child born in 2002; subsequent DNA testing confirmed this fact.

When his love child was three years old, and armed with the confirming DNA results, bio-dad sought an order of filiation in a paternity action he filed in New York state.  For her part, Mother challenged the New York family court's jurisdiction, as the paternity suit did not name her husband as a necessary party, and the paternity of her second child was already established by operation of Michigan law.

Not so fast.  The New York family court found that some of the couples' adulterous liaisons took place within the state of New York thus, the child could have been conceived in that state.  Conceding that it did not have personal jurisdiction over Mother or her husband, and acknowledging that paternity of the child had been established in accord with Michigan law, the New York family court nevertheless refused to dismiss bio-dad's paternity action, ultimately granting bio-dad's order of filiation.

Meanwhile, paternity actions were cranked-up back here in the Wayne County family court by Mother's Husband and bio-dad.  All three parties sought summary disposition of the paternity issue.  Bio-dad's petition sought to enforce the order of filiation issued by the New York family court; the family court judge in Wayne County agreed, citing the full faith and credit clause of the United States Constitution.

Mother appealed and the Michigan Court of Appeals reversed the Wayne County family court, holding that bio-dad lacked standing to sue here in Michigan.  The case hinged on the definition of a child born "out of wedlock".  The Court of Appeals reasoned that because the married couple did not seek a determination that their child was born out of wedlock, bio-dad cannot seek that determination, regardless of his New York order of filiation.

Bio-dad also asserted that the Wayne County family court was required to give his order from New York full force and effect under the United States Constitution.  In the most interesting portion of the published opinion, the Court of Appeals rejected bio-dad's assertion, holding that the comity clause of the constitution does not apply when the issuing court lacks jurisdiction.

The Court of Appeals ruled that the New York court conceded it lacked personal jurisdiction over the Husband, and that the New York family court left enforcement of the order it issued to the courts in Michigan.

Last week, the Michigan Supreme Court denied leave for further appeal in an evenly divided 3-3 ruling; Justice Brian Zahra did not participate as he was on the Court of Appeals panel at the intermediate appellate court.

Justice Marilyn Kelly wrote a thoughtful dissent, noting the case presented issues of jurisprudential significance.  She is not conviced that the Court of Appeals properly concluded that the New York order was not entitled to the full faith and credit of the Wayne County family court.  Justice Kelly noted that bio-dad did have proper standing in the New York family court that issued the order of filiation.  Also, she noted that this order was issued and affirmed on appeal in New York prior to any paternity action being filed in Wayne County.

For these reasons, she would have granted leave to appeal so that the issues presented in the case could be resolved.  For now, this question will continue to percolate throughout the family courts of our state.

DNA has long been available to determine paternity.  The Michigan legislature, however, in both the child custody act and the paternity act, has been reluctant to allow such conclusive test results to disrupt an established family.

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Honigman Miller's top-notch First Amendment lawyer, Herschel Fink, seems to get all the great cases; at least in my humble opinion.  Today, Fink argued on behalf of Rapper Dr. Dre before the Michigan Supreme Court while Dre's high-powered Los Angeles legal counsel was listening to Mr. Fink from the Court's well-appointed counsel's table.

This case has been up and down the court system here in Michigan for ten-years.

The dispute goes back to Dre's last Detroit concert in July 2000 at the Joe Louis Arena.  Dennis Archer was the Mayor, but was out of town.  Dre was on his infamous "Up in Smoke" tour along with Eminem and Snoop Dog.  The boys had cooked up a racy video deemed inappropriate by the Detroit Police for the youngsters expected to attend the show.

Police commander (and later City Council President) Gary Brown and other police officials met with Dre's concert promoters backstage prior to the show and advised that power to the show would be cut if the explicit video was shown.  After some haggling, and perhaps some arm twisting, the promoters talked the performers to go on with the show, sans intro. The exchanges were openly recorded by a tour film crew.

When the tour moved North the next day to the Palace of Auburn Hills, word had leaked to authorities in that community that the Detroit Police successfully canned the objectionable video intro by threatening to cut power to the event.  The tour went to federal court, that day, and obtained an injunction from U.S. District Court Judge Nancy Edmunds to prevent any interference with the show on behalf of the police.  The show at the Palace featured the explicit video introduction.

The tour left Michigan, and the promoters sued Detroit and settled for their attorney fees.  Former Mayor Archer issued a public statement that conceded the possibility of an unconstitutional "prior restraint" on behalf of the Detroit Police officers, and recognized the federal court injunction that was subsequently issued.

Six months later, Dre and his producers released a DVD of the tour with some bonus tracks which included a 10-minute segment titled, "Detroit Controversy".  This segment depicted some of the heated exchanges between Commander Brown, the DPD, City officials, and the tour promoters at the Joe.

The officers sued on eavesdropping and other tort theories and saw their case summarily tossed-out by the Wayne County Circuit Court.  The officers' first appeal to the Michigan Court of Appeals resulted in an affirmance of the summary disposition, except on the eavesdropping claim.  The intermediate appellate court said dismissal of that claim was premature as discovery had not been completed.

The case was sent back to the Wayne Circuit Court to complete the discovery process.  The additional evidence simply showed the Detroit government officials and police conducting the meeting in "public" areas backstage; doors open and hangers-on gawking.

Even after this so-called "additional evidence" was adduced and discovery finally closed, the Wayne Circuit Court again granted summary disposition in favor of Dr. Dre and the concert promoters; the case again was appealed by the officers to the Court of Appeals.

In a 2-1 decision, the Court of Appeals voted to again remand the eavesdropping claim back to the trial court.  Before the case could go back to the trial court for the second remand, however, the Michigan Supreme Court granted the promoters' application for leave to appeal.  Briefs were filed, and oral argument was conducted today.

The issue to be decided by the High Court is whether law enforcement officials have an expectation of privacy in carrying out their public duties.  Plaintiffs, the government officials and police officer, claim there was an agreement the meeting would be private and that the cameras were "hidden".  Also in-play in this case is the role of the ubiquitous video recorder and the instantaneous world-wide transmission potential of it's digitized content.

For those interested in drilling further into this case, Attorney Fink's appellate brief, complete with several instructive backstage photos, is reproduced here; the police officers' brief is attached here.  Warning:  although well-written, these briefs are not light reading.

We cannot help but wonder what the former Detroit Police commander and other public officials want out of this case.  Money damages from a deep-pocket gangsta rapper?  Exposure from such a high-profile case?

It sure seems to us from the photos in the Appellants' brief, and from the facts set forth by the Court of Appeals, that the core-incident in this case involved a very public meeting about the government's exercise of a "prior restraint".

We will follow this case as it grinds to a conclusion over a decade in the making.  Stay tuned.