There can be no doubt that America is in the midst of a protracted epidemic of mass shootings. Over the past decade, barely a month goes by where we are not treated to horrific headlines from some type of shooting where multiple people are killed. 

A mass shooting in the United States is defined as an incident where four or more people are shot, wounded, or killed in a single event, not including the shooter. On November 30, 2021, four students were killed by another student at Oxford High School in Oakland County, MIchigan. 

The case against Jennifer Crumbley, Mother of the Oxford High School shooter, was submitted to an Oakland County jury last Friday. The shooter's father is scheduled for trial in March. In this pair of truly groundbreaking cases, the shooter's parents were each charged with four counts of involuntary manslaughter. Their son has already pled guilty to four counts of first degree murder and was sentenced as an adult to life without the possibility of parole. 

Groundbreaking Case; Complicated and Unusual Circumstances

America has become accustomed to mass shootings; we've become numb to these frequent tragic events and their painful aftermath. Congress cannot pass effective gun control measures and, even if they did, our Second Amendment right to bear arms is a foundational bar to comprehensive gun regulation. 

Mass shootings usually end with the shooter taking his or her own life, or being charged with multiple counts of murder and other capital felonies. In Michigan, a capital felony is any crime where life imprisonment is a potential sentence upon conviction. 

Mental illness is highly correlated with mass shootings; a very high percentage of mass shooters have some form of acute mental illness. The Crumbley case is no different.

The Oxford High School shooting was the first mass shooting -according to the above referenced definition- in Oakland County, Michigan. The case has some very unusual factual aspects. 

First, following the shooting, the Oakland County Sheriff attempted to locate the shooter's parents but were unable to do so because, as it turned out, they went on the lam in Detroit. As a result, the Oakland County Sheriff scrambled a state-wide manhunt for James and Jennifer Crumbley, locating them cowering in a warehouse in the 313.

Second, the Crumbleys allegedly purchased the Sig Sauer 9 mm used in the shooting rampage for their son as a Christmas gift, although he was not elibigle to legally own or possess a gun due to his minority. Jennifer Crumbley testified in her own defense; always a highly risky prospect. She testified that she helped her son research and purchase the weapon.

Third, any time an attorney allows her client to testify, evidentiary doors often get opened that damage the defendant on cross examination. In this case, Jennifer Crumbley testified about her son's text communications about ghosts and demons; trying to explain it all away and to justify why she neglected to get her son professional help. 

The jury heard evidence that Jennifer thought her son was "weird"; that his only hobby involved shooting guns; that they, as a family, made trips to the shooting range; that she researched mental illness on the eve of her son's shooting rampage, but never took him to a professional or even thought he had a mential illness. 

On and on it goes. No wonder the Oakland County Prosecutor believes she can convict on a manslaughter theory. Technically, the prosecutor tried the case under two separate and distinct manslaughter theories; more on that below. 

To be fair, national headlines and publicity notwithstanding, the prosecutor had to bring these charges. Under such facts, not to do so would be political suicide. Nor could she have extended the Crumbleys any plea offer; also political suicide. Karen McDonald had to go to a jury trial in this case. In Michigan, county prosecutors are up for election every four years. In the midst of America's mass shooting epidemic, lack of parental supervision is a legitimate theory to assign culpability in some cases. 

In some ways, the Crumbleys are in a similar liability position as the parent of an infant or toddler who staggers into a room with a loaded weapon and shoots someone. We've seen dozens of such cases across the country. 

Jury Instructions

In criminal cases, there are a set of standard jury instructions that set forth some of the basic procedural and substantive concepts involved in our criminal justice system. They are standard to the extent that they are read to juries in every criminal case. There are also special jury instructions that cover some of the unique circumstances of a particular case, like the case of the Crumbley parents.

The Oakland County jury was charged with the following instructions for involuntary manslaughter. The jury instructions, read to the jury by Oakland County Circuit Judge Cheryl Matthews, included two separate theories of manslaughter; one involving the legal duty of due care contained within the concept of neglegence, the other involving gross neglegence. 

Regarding the gross negligence theory, Judge Matthews charged the jury that the Oakland County Prosecutor had the burden to prove each of the following two elements beyond a reasonable doubt, which is the highest evidentiary burden in Michigan:

• First, that the defendant caused the death of the student(s), that is, that the student(s) died as a result of storing a firearm and its ammunition, so as to allow access to the firearm and its ammunition by her minor child; and 

• Second, in doing the act that caused the student's death, the defendant acted in a grossly negligent manner.

These instructions were repeated for each of the four deceased Oxford High School students. 

Regarding the ordinary negligence theory, a special jury instruction was fashioned and read to the jury:

The defendant is charged with the crime of involuntary manslaughter resulting from the failure to perform a legal duty. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

• First, that the defendant had a legal duty to the decedent. The legal duty here is one imposed by law. In Michigan, a parent has the duty to exercise the duty of reasonable care to control their minor child so as to prevent the minor child from harming others or prevent the minor child from conducting themselves in a way that creates an unreasonable risk of bodily harm to others. This duty arises when both of the following are true: a) the parent knows or has reason to know that they have the ability to control their minor child; and b) the parent knows the necessity and opportunity to exercise such control.

• Second, that the defendant knew of the facts that gave rise to the duty.

• Third, that the defendant neglected or refused to perform that duty and that her failure to perform it was grossly negligent to human life.

• Fourth, that the death of the student(s) was directly caused by defendant's failure to perform this duty, that is, that the student(s) died as a result of the defendant's failure to exercise reasonable care to control her minor child so as to prevent the minor child from intentionally harming others or the minor child from so conducting himself so as to create an unreasonable risk of bodily harm to others when the defendant knew she had the ability to control her minor child and knew of the necessity and opportunity to do so. 

The jury was also instructed that the shooter's act of shooting was reasonably foreseeable; they were instucted that either or both of the prosecutor's theories were sufficient to convict the defendant. Because one of the prosecutor's witnesses qualified as an expert in computer forensics, the jury was instucted on consideration of expert witness testimony; that they did not have to believe the expert's opinion but that they needed to decide how much weight to give to such testimony. 

Because this is truly a momentus case under the intense scrutiny of our national media, the jury could be out for several days considering the complex jury instuctions. 

Involuntary Manslaughter Law in Michigan

Involuntary manslaughter is a 15-year felony meaning that if convicted, Jennifer Crumbley faces up to 15-years in a Michigan Department of Corrections prison. Normally, defendants without significant prior felony convictions do not receive the maximum sentence. 

But this is not a normal case; this is a high-profile case that has the attention of the entire nation because it is believed to be the first time the parents of a mass shooter have been charged with manslaughter. 

Unlike voluntary manslaughter, involuntary manslaughter does not require establishing an intent to kill the victims. Involuntary manslaughter is highly circumstance dependent. The Michigan Supreme Court has described it as:

Involuntary manslaughter is the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony or naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty. 

This definition from our common law, of course, ties into the jury instructions above. Clear as mud, right?

An average juror, understandibly, may have some difficulty keeping the concepts straight. Judge Matthews did instruct the Crumbley jury that they could convict Jennifer Crumbley if they were convinced of either of the prosecutor's theories of culpability, i.e. the gross negligence theory or the breach of parental legal duty theory.

Full Disclosure

We here at the Law Blogger go way back with many of the players in these groundbreaking cases. We've known Judge Matthews since she was an assistant prosecutor in Oakland County; this blogger appeared before Judge Matthews just last week; our lawyers go back with Oakland County Prosecutor Karen McDonald to the days when she was a family law lawyer with the Dickenson firm, and then a family court judge; we have had cases where Karen McDonald represented the opposing party and we appeared before former judge McDonald in dozens of cases when she was on the family court bench. 

We've known defense counsel Shannon Smith, and currently have our own capital case with Smith's former law partner Mariel Lehman, James Crumbley's defense counsel. Our law firm has had to coordinate the trial in our capital case in Livingston County with James Crumbley's trial. 

So, along with the rest of the country, we will anxously await the jury verdict in this groundbreaking case and the in the James Crumbley case. A guilty verdict could redefine a parent's duties to control the conduct of their minor children; something that many Americans believe is long overdue. 

On the other hand, Michigan jurisprudence has long been settled that the criminal acts of third parties are not deemed to be foreseeable. Should an exception be made when the criminal actor is your minor child? 

Post #638

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In the past ten-years, my law firm has produced a few short video clips to promote our mission statement. We have enjoyed just a few very slim slices of public exposure during this decade.

This 600th post publishes some of our best clips from the past 10-years. Take a look...

The very first clip features a closing argument following a three-day trial in a drunk driving case before the legendary Oakland Circuit Judge Steven Andrews way back in 2009. This poor-quality video was purchased from the Oakland County Circuit Court Administrator prior to the Court's ban on disseminating such videos of court proceedings.

This second clip features a panel discussion involving my first case before the Michigan Supreme Court back in 2006. Probably for the legal professionals among our readers.

Then we produced our first marketing video in 2010, designed for social media distribution. The colors were good, and the "actors" are actual clients. We really got a lot of mileage out of this short little clip.

Here is another throwback to the Oakland Circuit Court from 2009; a sentencing hearing for one of our few homicide cases. Now-retired and long-serving Oakland Circuit Judge Ed Sosnick can be seen presiding over the hearing. Our client pled to leaving the scene of an accident resulting in death; she was sentenced to 6-months in the "work-release" program.

More recently, I was able to generate a clip resulting from one of my rare appearances before the Michigan Supreme Court in People v Robertson; a case involving the "search and seizure" clause of the 4th Amendment to the United States Constitution. Boy, am I ever getting grey...

Finally, last year, we got it together and produced this gem with a pair of our best clients ever.

Time really does fly when you are having fun; this is certainly true in the professional setting.

If you or a loved one are facing the rough waters of a divorce or criminal charge, give us a call to discuss your options in a free  consultation.

Post #600
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Should a judge be removed from the bench for a single decision; even a particularly poor one?

Being a judge is a very difficult job. Every decision you make disappoints at least one of the parties standing in front of you; sometimes both parties are disappointed; sometimes bitterly disappointed.

An independent judiciary is mission critical for our democratic system of government. A judge must be able to consider the evidence presented, calling the balls and strikes of a case, and decide the matter within a range of principled outcomes.

When a judge's decision is wrong, the aggrieved party always has an appeal. In a recent media case from Santa Clara County, California, non-parties have mobilized well beyond the scope of an appeal, launching assaults on the very professional standing of the judges making the decisions.

In People vs Broc Turner, Santa Clara Superior Court Judge Aaron Persky, unopposed in his bid for re-election this November, is facing two "recall" or "impeachment" petitions. Judge Persky got into it with the world by sentencing Broc Turner, a student-athlete at Stanford University, to only six months jail for the rape of a fellow student.

In the wake of Judge Persky's decision, there has been a national outcry leading all the way to the White House, calling for Persky's removal or impeachment. It is fair to say at this point that his sentence in the Turner case has made him infamous [yes, he is receiving death threats] and it is not an understatement that his professional reputation will be forever tarnished, the local criminal defense bar notwithstanding, in the eyes of the public and the media.

In criminal cases, once an accused has been convicted, a sentencing hearing is conducted where the judge imposes punishment after considering: a recommendation from the probation department, the statement from the victim, and allocution from the defense lawyer. In the Turner case, Judge Persky's six-month sentence was recommended by probation.

A reader's comment to a recent post about this case in the New York City law blog Simple Justice aptly frames the issue:

The “Social Justice Warriors” have lost their marbles on this one. People who ordinarily post against capital punishment in any context have been advocating the killing of Judge Persky as well as the sodomization and killing of Brock Turner in custody. It is off-the-rails insanity, and reveals the true face of “Social Justice Warriors” as a monstrous composite of the face of McCarthyism and the face of the lynch mob. Eventually (and sooner rather than later if the violence they have endorsed actually occurs), “Social Justice Warriors” will lose their supporters just as McCarthy and lynch mobs have. The only question is how much damage will be done to the justice system and how many lives will be destroyed before it happens.

Writing for Slate in a post aptly titled Justice for None, here is how Mark Joseph Stern characterizes Turner and describes his lenient sentence:

Brock Turner is an odious criminal who committed a heinous act and deserves to go to prison for much longer than his six-month sentence requires. His trial confirmed that both racism and sexism continue to plague America’s criminal justice system, especially where rape is involved. Yet in their rush to condemn Turner’s sentence, far too many liberals have abandoned what were, not so long ago, fundamental principles of progressivism. This willingness to toss due process out the window in sexual assault cases is, unfortunately, indicative of a broader inconsistency that plagues the American left.

The Turner case, and its attendant outrage toward the jurist perceived as too lenient toward a privileged rapist, brings into focus the well-meaning and concerted effort to stop sexual violence. But that cause, however noble, cannot unravel one of the bedrock principles of our justice system: that of an independent judiciary.

Post #543

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Tim Barkovic courtesy Freep

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

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

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

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

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

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

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

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

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

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

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

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Post #507

For the defense: Atticus Finch

Jeez, say it ain't so. The beloved protagonist of Harper Lee's 1960 Southern Gothic novel To Kill a Mockingbird exhibits racist tendencies in Lee's recently published sequel, Go Set a Watchman.

The plot of Mockingbird is one of the most well-known and revered in American literature. Criminal defense lawyer Atticus Finch, portrayed by Gregory Peck in the '62 screen adaptation, is appointed by a local judge in fictional Maycomb, Alabama to represent a black man accused of raping a white woman.

Yes, the assignment is unpopular in the small county-seat town and Finch's representation, while heroic, is ultimately unsuccessful, leading to a jury conviction. In the novel, Mr. Finch gives a voice to the court-appointed criminal defense lawyers creed:

Courage is not a man with a gun in his hand, it's knowing you're licked before you begin but you begin anyway and you see it through no matter what. You rarely win but sometimes you do.

Now, what are we to make of this iconic literary figure who, in the sequel, now age 72, exhibits the tendencies of a physically aging bigot, denouncing desegregation efforts and asking his now-adult daughter whether she really wants African Americans to "overrun" the local schools.

This surprise plot twist is just the latest example of America's inescapable racism. But a bigoted Atticus Finch? It just does not ring true, and tears at the soul of indigent criminal representation.

Now what will high school literature teachers assign their students to read? They will have to resort to Gideon's Trumpet to take up the mantel of court appointed counsel.

Interestingly, Atticus' fall from grace was predicted in the unconventional critique leveled nearly a quarter century ago by now-deceased Hofstra University Law Professor Monroe Freedman in the National Law Journal, a dry trade publication we read regularly here at the Law Blogger. Professor Freedman criticized Finch for not signing-up for the case, for groaning when assigned the case by the county judge, and for not championing the rights African Americans to sit anywhere they wish in the public courtroom where Tom Robinson's trial took place.

With last month's events in South Carolina in the foreground, and the ubiquitous friction inherent in the interactions between law enforcement and minorities as a backdrop, the long-anticipated release of Harper Lee's sequel could not come at a worse time. But really, when is there a good time for racism in America?

The author actually completed the so-called sequel to Mockingbird first, in 1957; three years prior to the publication of Mockingbird. Perhaps the aging bigoted Mr. Finch was too much to take, and Ms. Lee's publicist prevailed upon her to produce and publish what has become America's classic morality tale.

Well, over here at the Law Blogger, we will continue to take up the cause of those who cannot afford retained counsel and, in each case, we will do our best as did Mr. Finch in his prime. Unlike the arthritic Atticus Finch, however, we will keep our personal views to our selves.

Levitt: self-described "bad ass" attorney.

In charge of our law firm's marketing efforts over the past decade, it was with professional interest and some amusement that I monitored the seemingly coordinated if irreverent campaigns of fellow attorney Todd Levitt.

Originally from Oakland County, Todd moved to his beloved Mt. Pleasant and developed a great gig over the past few years by becoming the "go to" lawyer for Central Michigan University students charged with drug and alcohol crimes.

Promoting himself as a middle-aged snowboard-riding nutty adjunct professor, and Saul Goldberg-style lawyer, Todd sure looked like he was having fun in and around the haunts of his alma mater. About a year ago, just as he was taking his game to the next level with a self-crafted lawyer reality tv show, "In Todd We Trust", he suffered a backlash from within the heart of the campus he calls home.

Apparently, homie's antics caught the attention [and ire] of a fellow CMU professor whose son, a student at the university, had the technological chops to develop a mock twitter account called Todd Levitt 2.0.  Todd did not like being the subject of satire and a brawl broke out in the twittersphere.

Then Levitt sued in the Isabella County Circuit Court on theories of  defamation, false light, intentional infliction of emotional distress, and interference with a business relationship; all standard tort theories designed to cover such a mess.  A few weeks ago, the circuit court ruled against Levitt, finding that the CMU student's parody Twitter account of the lawyer was speech protected by the First Amendment.

We here at the Law Blogger agree wholeheartedly with this result.  As a self-promoter of the first order, Todd became a public figure around CMU over these past several years.  The court correctly held that statements made about such a figure, even if untrue, are nevertheless protected by the cloak of "parody" and satire.

Seeing opportunity within his defamation case, Levitt has apparently vowed to appeal what he sees as, "a case of first impression that needs to go to a higher court."  Well, as every litigant has a right to appeal the final order of a trial court, we wish him the best of luck with all that.

As a barometer of local public opinion regarding our colleague, take a look at these 17 comments posted to CMU's announcement about his reality tv show.

Like any self-respecting self-promoting lawyer, this guy is not giving up; this guy is not going away [see the post script, below]. That is what still remains great about our free society.

We predict, however, that the Isabella County Circuit Court's order granting the defendant-student's motion for summary disposition will be affirmed on appeal.  So Todd, we have to ask you about the old Hollywood adage: is there no such thing as bad publicity?

04/03/2015 Post Script:

We have received some additional information from Mr. Levitt regarding his law suit and have adjusted our view of his chances and his characterization of the defamation case as one of first impression.  According to Mr. Levitt, the n'er-do-wells that parodied his twitter site did so for two months without any indication whatsoever that the site was a parody.

Todd says it was a 100% identify theft situation  -not to rip him off financially- but to embarrass and harass him and his family.  Identity theft in the social media context.

If he offered some proof of that dynamic in the circuit court, that changes the playing field and we agree with him that the Court of Appeals will take, or should take, a close hard look.

Here's another thing we've come to recognize about Todd's case: we sure would not want this to happen to us and if it did, we'd sue too.

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Last week, the Michigan Court of Appeals reversed the felony marijuana manufacturing conviction of a Tuscola County man based on how the 68 pot plants seized from his warehouse were weighed by the Sheriff. The defendant in the case had a valid medical marijuana card.

The Sheriff deputy testified probable cause was obtained based on the pot smell coming off the building and from the numerous pot plants that were visible by looking into the windows of the warehouse.  All the plants were seized and Johnny Randall was charged with manufacturing marijuana, a felony.

In his defense, Randall moved to dismiss the charges under the immunity section of the Medical Marijuana Act; he asserted that he was a care provider for 5 individuals [the maximum under the Act] and was a certified "patient" himself.  The trial judge wasn't having it at Randall's bench trial, denied the motion to dismiss, convicted the defendant, and sentenced him to 180-days jail, held in abeyance pending an appeal.

This is not just another pot case on appeal.  This case featured a detailed analysis of how pot plants are counted and weighed within the context of the criminal manufacture statute and the Medical Marijuana Act.

Randall's was a full-on hydroponic marijuana manufacturing operation which included dozens of plants in various stages of the process. This included drying plants and others in the mid-growth cycle.

At his bench trial, the deputy sheriff testified that some of the seized plants were dried; other plants were still maturing.  The sheriff pulled out the live plants and left them out to dry before sealing them up in an evidence bag to be used in Randall's trial.

The Court of Appeals held that only the dried marijuana leaves are to be considered the "usable" portion of the plant and thus, still growing plants and the "incidental" seeds, stalks, and unusable roots cannot be counted against the caregiver-patient.

Under this interpretation of the Medical Marijuana Act, Randall was well-below his 15-ounce weight limit as a caregiver for himself and 5 other individuals. His conviction was therefore dismissed and his sentence was vacated.

These and other aspects of the immunity provision contained in the Medical Marijuana Act were recently argued before the Michigan Supreme Court in three consolidated cases from Oakland County; a decision is expected later this spring.

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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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Sorry about that headline.  But this case was all-over your evening news back in 2004, when kindergarten teacher Nancy Ann Seaman axed her long-time husband to death on Mother's Day.

Earlier this month, Ms. Seaman filed for clemency consideration with Governor Rick Snyder.  You might recall [but probably not] that 3-years ago, a federal judge granted Seaman's petition for Habeas Corpus.

Ms. Seaman was jury convicted of first degree murder before retired Oakland Circuit Judge John McDonald.  Seven-months after her trial, Judge McDonald reduced Seaman's conviction from first to second degree murder.

Both Seaman and the prosecutor appealed.  The Michigan Court of Appeals reversed the trial court and reinstated Seaman's first degree murder conviction.  [The linked MCOA opinion contains a fascinating in-court colloquy about premeditation between the prosecutor and trial judge at the hearing on Seaman's motion for a new trial, beginning on page 5.]

The Court of Appeals found (by 2-1) that the trial court abused its discretion by acting as a "thirteenth juror" in reducing the conviction to second degree murder.  The intermediate appellate court also held that premeditation has no set time-frame but rather, can be established in the fleeting moment that it takes to have a "second look" at an imminent homicide.

Dissenting Judge Karen Fort Hood was troubled by the apparent "disconnect" between Seaman's self defense theory and testimony regarding "battered spouse syndrome".  Evidence relative to the latter theory was limited by the trial court.  Judge Fort Hood also commented on what she perceived as a confusion of jury instructions on the two concepts.  See the last two pages of the above link for her concise dissent.

The Michigan Supreme Court declined further review of Ms. Seaman's conviction; the Habeas petition still lingers with the United States District Court for the Eastern District of Michigan grinding through cases filed in 2009, before turning to those filed in 2010.

Carol Jacobsen, a University of Michigan Law Professor, is the executive director of the Women's Justice and Clemency Project.  They are seeking clemency for Seaman and 9 other convicted women, many of whom were tried prior to a change in the law allowing accused women to present evidence of domestic abuse.

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Disgraced Former Judge
& Prosecutor Ken Anderson

We saw this in the 313 a few years back in the Judge Waterstone case; a prosecutor getting jail time for failing to disclose exculpatory evidence that could set an innocent accused individual free.  This post profiles a case, the worst we've ever seen here at the Law Blogger, that comes from Texas.

Here in Michigan, as in Texas and all other states, prosecuting attorneys have a duty to disclose evidence that is exculpatory -that is, favorable- to the accused.  Failure to disclose exculpatory evidence subjects the prosecutor to contempt of court for which a violator can be jailed.

Michael Morton was accused, tried and jury-convicted of killing his wife Christine back in 1987.  Ken Anderson was the prosecutor assigned to the case.  After convicting Morton, Anderson rode a "tough-on-crime" wave onto the county circuit court bench where he has been serving as a judge until resigning in disgrace just last September.

The source of his disgrace was that justice was finally served-up in Morton's re-opened murder case.  DNA blood evidence from another individual proved Morton did not murder his wife; the blood was from a local drifter who was later convicted of murdering another woman in Texas two years after Christine Morton's death.

In the process of re-opening Morton's case, it was learned that Anderson possessed two pieces of critical exculpatory evidence: Morton's 3-year old son saw the murderer and told his grandparents that it was not his dad but rather, a "monster"; neighbors' statements described seeing a drifter near the Morton residence in the days leading up to Christine's murder.

Unfortunately for Morton, he did a full quarter in the joint before being released in 2011.  The drifter was eventually convicted of Christine Morton's murder and now sits on Texas' Death Row awaiting execution.

As part of a global agreement settling all matters against him, the disgraced judge and former prosecutor was disbarred as a lawyer, and will do [only] 10-days in the county jail for contempt of court; he will not have a criminal conviction on his record.

The civil lawsuit against Anderson brought by the State Bar of Texas will be dismissed.  As part of the resolution, Anderson will not be charged with the more serious criminal charges of tampering with evidence [carrying a 10-year maximum prison term] due to statute of limitations constraints in bringing such a case.

If you were to ask us here at the Law Blogger, as between these two men, we believe Anderson got a far better deal.  He should be tasting prison food for at least a nickel; he got lucky and he knows it.

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There is a little known law here in Michigan that requires residents of any county to completely fill out and return a Jury Questionnaire.  Specifically, here is what we are all obligated to do pursuant to a chapter of our "catchall" statute known as the Revised Judicature Act:

Persons on the first jury list are required to return the questionnaire fully answered to the [County's] jury board within 10 days after it is received. [Bracket Supplied]

Last Monday, a resident of Bay County and ex-convict, reported to the Bay County Jail after have been held in contempt of court by Judge Joseph Sheeran for violating the above statute.

The man was held in contempt for completing his questionnaire with vulgarities and for scribbling things such as:

Leave me alone!! Please. Die in Hell Pigs/Judges/DAs.

He also told the judges to "f-off" and had other choice things to say that we will not print here at the Law Blogger.  The man's redacted handiwork can be viewed by clicking here.

This prospective juror's criminal defense lawyer could not keep the man from a jail sentence, however brief.  As noted by Judge Sheeran, all this man had to do was to disclose his ex-convict status and he would have been excused.

Was this individual as stupid as he accused the judges and county government workers being?  Or does he have the right to redress the government with an inartful complaint?

The interesting thing about this case is whether the citizen was entitled to "editorialize" his responses, incomplete as they were, as a part of his First Amendment right to freedom of expression and to petition the government with his grievances.  Or is his conduct and speech simply subject to the usual "time and place" restrictions relative to things [like census forms, tax returns, and other documents] that the government requires us to fill-out and file with one of their subdivisions?

Mi-Live's coverage of this man's conviction is replete with over 100 comments giving the many flavors, some frivilous, others quite serious, of our collective public view of such conduct, speech and government action.  Here are some of the comments this story has generated among the professionals, courtesy of the ABA.

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When we represent an individual accused of committing a major felony, we are mindful of the new statute in Michigan requiring police to record a custodial interrogation of that individual.  Although the statute took effect last March, some local law enforcement agencies have not been able to comply with the law due to funding limitations and budget cuts.

The express wording of the statute requires the police to make a time-stamped audio-visual recording of the entire custodial interrogation, including the Miranda warning component of the interrogation.  The statute also requires that equipment be utilized in this process that prevents editing or altering the original content of the recording.

When the police conduct a custodial interrogation for a major felony they are not required to secure the consent of the suspect, nor are they required to inform the suspect of the recording.  If the suspect objects to the recording, that is noted, and the interrogation continues unless the suspect invokes a right to have an attorney present.

Major felonies are defined in the new law as any felony that has life imprisonment, or a maximum punishment of 20-years; this includes Criminal Sexual Conduct in the 3rd degree [i.e. victim between age of 13 and 16].  In our experience with such cases, most interrogations have long been recorded.

Making a recording helps the system to the extent that such a recording makes compelling evidence at a criminal trial.  If the suspect confesses, then "the cloth is cut" as we say in the criminal defense bar.  When an accused's confession is recorded, and the criminal defense lawyer is unable to suppress the recording, a guilty plea usually results.

On the other hand, sometimes the recording depicts an individual ardently asserting their innocence, non-involvement, or an alibi.  Once produced, as required by the new statute, the defense attorney is entitled to a copy of the recorded statement.

If local law enforcement is unable to produce the major felony recording, either due to malfunctioning equipment [happens more than you would think] or because there is no equipment due to budget cuts, then the defendant is entitled to a jury instruction advising the jurors of the statutory requirement for a recording, and further advising jurors they can take the missing recording into account.

A more effective remedy, from the criminal defense perspective, is the preclusion of the substance of any unrecorded statement into evidence during the trial.  The best evidence is the actual recording of the accused's statement, not the officer's summary or re-telling of such a statement.

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AG Eric Holder @ ABA Annual Meeting

By: Timothy P. Flynn

Addressing the ABA's House of Delegates in San Francisco last week, U.S. Attorney General Eric Holder announced a significant shift in federal drug policy that could have an impact on our decades-long "War-on-Drugs".  The policy initiative will effectively gut the tough anti-drug sentencing policies that have been a staple of federal legislation for the past quarter century.

Holder indicated that sentencing guidelines would be reduced for non-violent low-level substance abuse offenders.  Stringent mandatory minimums would be eliminated.

In making the surprise high-impact announcement, the U.S. Attorney General said, "too many Americans go to too many prisons for far too long and for no truly good law enforcement reason."

Going forward with the new policy, known as the "Smart on Crime" initiative, Holder said that US Attorneys will be exercising their prosecutorial discretion to charge defendants with minor crimes [i.e. possession] better suited to their substance abuse conduct, rather than charging such low-level participants with distribution crimes that carry hefty minimum sentences.

The AG also signaled that his boss, President Obama, will be seeking a legislative initiative that would give federal judges more discretion in their sentences for drug-based crimes.  This was very welcome news to the ABA's Criminal Justice Section Chair, Neil Sonnett, who characterized the long-standing federal drug policy as one that features "over-criminalization" and "over-incarceration".

We here at the Law Blogger have seen many a client go "bye-bye" due to these harsh sentencing guidelines, some of which spill over into our state laws.  Remember the mandatory drug lifer law debacle of the 1980s?

With the onset of drug courts and sobriety courts over the past decade that feature treatment over incarceration, the criminal justice system here in Michigan has made great strides toward what Holder announced at the federal level.

Hopefully this momentum will continue after Holder's boss leaves office.  For the opposing point of view, take a look at Georgetown Law Professor William Otis' editorial in USA Today.  Also, here is the NYT's op-ed on the incarceration aspect of this debate; and here is The Economist, calling for "Holder to be Bolder".

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By: Timothy P. Flynn

On Sunday Morning, I was reading the Detroit Free Press about a rough incident of vigilante justice made possible by Facebook.  As the social media experience accelerates, we can expect more cases like this one.

The Crime.  A 15-year old girl with Down Syndrome was allegedly raped in the Hubbard Farms neighborhood on Detroit's Southwest side on July 17th.  Word got out that the suspect was a 45-year old man, also from Hubbard Farms.

The Consequences.  First, Emails circulated through the neighborhood about the attack and the suspect's involvement, divulging his name and address.  Next, graffiti below the suspect's apartment window pronounced the Hubbard Farms resident a "Rapist".  Once outed by the graffiti and emails, neighbors demanded to know what should be done about the attack, and the alleged attacker, like right now.

An Unfortunate Delay.  For their part, the Detroit Police bungled getting off the dime on the case.  The subsequent investigation into the girl's attack led to a rape kit that included a Buccal swab from the suspect.  The DNA samples, however, were not transmitted to the Michigan State Police crime lab by the DPD for over a week.

We here at the Law Blogger know, from our own cases, that the State Police crime lab is seriously backlogged, taking between 6-months up to one-year before test results are returned.

A Facebook "Call-to-Action".  So in the month since the rape occurred, neighbors who see the alleged attacker still walking the streets, have become incensed with the slow-moving wheels of justice.  They know that the suspect has not been charged with any crime; at least not yet.

This delay in justice was not acceptable to some of the neighborhood residents who recently struck-up a FB campaign calling for street justice; one post even suggested a back-alley castration; others posted equally specific threats.

The Beatdown.  Apparently, due to the e-notoriety of the alleged attacker, he himself was attacked on the street by several members of the neighborhood, beaten with a baseball bat and kicked in the ribs and face according to witnesses.  He survived the beatdown and his family moved him to an unknown location for his own safety.  [Note: Although witnesses to the beatdown contacted the DPD, the police arrived too late, apparently otherwise engaged with a fatal shooting nearby.]

Guardianship Proceedings.  According to the Freep article, the suspect has a mental illness, was committed to a mental health facility last year, and has a Guardianship in the Wayne County Probate Court.

Managing over 75 guardianships in my own law practice as a Public Administrator, I understand the challenges and heartbreak of mental illness.  Mental illness, however, is not a legal defense to most crimes.  When our wards get charged and convicted of crimes, their mental illness is taken into account at the sentencing hearing, but it does not exonerate the criminal act.

Vigilante Justice.  Vigilante justice is not the answer, even when the wheels of justice turn slowly.  While justice delayed is truly justice denied, vigilantism points to a critical breakdown in our society, letting us know just how close chaos looms beneath the surface.

As a criminal defense lawyer, I understand the necessity of the prosecutor to collect evidence to prove the charges in a court of law.  Nearly always easier said than done, especially in Detroit.

In this case, the Wayne County Prosecutor will bring criminal charges against the alleged attacker just as soon as they have sufficient evidence to prevail in court; that's how the justice system works.

We here at the Law Blogger find it ironic that technological advances such as the proliferation of social media serve, at least in cases like this, to accelerate violence in a frenzied rush to judgment.

What if the mob gets it wrong; where is the appeal filed from that injustice?

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George Zimmerman awaits his fate yesterday.

As criminal defense lawyers, we here at the Law Blogger can certainly understand the exhilaration of a big defense win.  As parents, we also understand the slap in the face that this is to the parents and family of Trayvon Martin.

The all-female Seminole County jury elected to work into the weekend, deliberating on Friday night and into Saturday, before finding the accused neighborhood watchman not guilty of second degree murder and manslaughter.

You know the case; the self-appointed night watchman has a confrontation with Trayvon Martin, a teenager whose father lived in the community Zimmerman was patrolling.  The case featured Florida's so-called "stand-your-ground" self-defense statute and acquired a civil rights dimension due to the alleged racial profiling component of Zimmerman's actions.

Even President Obama publicly commented on the proceedings, remarking that if he had a son, he would look like Trayvon Martin.  Here in the 313, the Coalition Against Police Brutality has planned a public protest of the verdict.  Demonstrations erupted, briefly, in streets of Los Angeles, CA, when news of the verdict broke.

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We here at the Law Blogger have some friends among the ranks of state prosecutors and law enforcement.  From time to time, we are treated to the "nuts-and-bolts" of the cold-case process from these professionals.

This post involves the ultimate resolution of a cold murder case and the result of that case now affects all citizens in their [hopefully occasional] interactions with law enforcement.  SCOTUS ruled yesterday that the silence of an accused, during questioning from the police, can be used against the suspect at his trial unless the person affirmatively asserts his Fifth Amendment right to remain silent.

In Salinas v Texas, the defendant was voluntarily discussing the 1992 murders of two brothers when he accompanied police to the station.  He was not under arrest at the time, and continued to discuss his knowledge of the circumstances of the murders at the police station; no Miranda warnings were supplied advising him of his constitutional right to remain silent.

After answering all the detectives' questions, Mr. Salinas suddenly fell silent when asked whether the shot gun casings found at the murder scene matched his shotgun.  His demeanor turned clammy and nervous; Salinas clammed-up.

Now, normally, your silence cannot be used against you in court.  In this case, however, Salinas' trial featured evidence from police testimony about his demeanor and silence during the shotgun line of questions at the police station.

The now-convicted double murder defendant appealed his case all the way to the SCOTUS and just lost yesterday.  Each of us lost a little sliver of our 5th Amendment right to remain silent along with Salinas' affirmed conviction.

The plurality decision in this case seems to split a hair relative to our constitutional rights while being interviewed or, by extension, interrogated by law enforcement.  SCOTUS held in this case that, in order to invoke his constitutional right to remain silent, Salinas had to affirmatively assert his right to silence.  Since he did not do so while discussing the murders with the police, his conviction was affirmed.

The lesson in all this: ordinary citizens must keep-up with the nuances in the law in order to properly assert their constitutional rights.  Put another way: with regard to our right to silence, this ruling takes a "use it or lose it" approach.

Michigan Connection:  now-retired Wayne County Assistant Prosecutor and appellate specialist [i.e. legend] Timothy Baughman filed as an amicus on behalf of Wayne County.

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The Medical Marijuana Act provides medical pot users with certain immunities relative to their use of marijuana.  Even a medical marijuana patient, however, cannot "medicate" while driving a vehicle, raising the question: just how much pot legally can be in the patient-driver's system?

Earlier this week, the Michigan Supreme Court released a much-anticipated decision resolving a conflict in the Motor Vehicle Code and the Medical Marijuana Act here in Michigan.  In a unanimous per curiam opinion, issued without oral arguments, the Supreme Court held in People v Koon that a medical marijuana patient is legal to drive a vehicle, even with some THC in his blood.

Rodney Koon was charged under the "zero tolerance" provision of the Motor Vehicle Code which proscribes driving with any amount of a Schedule 1 drug in the driver's system.  Koon, a properly registered medical marijuana patient, was initially stopped for speeding in Grand Traverse County.

Both the district court and the Grand Traverse County Circuit Court agreed with Mr. Koon's lawyers that the MMA provided Koon with immunity from prosecution under the motor vehicle code's "zero tolerance" provision -case dismissed.  The Michigan Court of Appeals reversed that dismissal, reasoning that even under the MMA, driving under the influence of marijuana remains illegal, and concluding that any amount of marijuana found in a driver's system constitutes "under the influence".

The Supreme Court disagreed, holding that some proof that a driver is operating a vehicle while under the influence of marijuana is necessary; evidence of a miniscule amount of THC in that driver's blood-stream, without more, is not enough to strip that driver of the immunity from prosecution available under the MMA.

This decision essentially amounts to a "sliding-scale" for pot-card carrying drivers.  You had better be sure sufficient time has elapsed between toking-down, and getting behind the wheel. 

We here at the Law Blogger suggest that 15 or 20 minutes clearly is not sufficient to keep the rest of us safe from a pot patient's stoned driving.  But what about an hour or two? 

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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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The average female who consumes two drinks in an hour will have a blood alcohol level of about .05.  Yesterday, the NTSB voted to recommend lowering the legal limit from .08, the level that all 50 states have set as their legal limit, to the lower level.

It took more than 20-years for all 50 states to lower the legal limit for alcohol from .10 to .08.  Last month, a bill in the Michigan House calling for a return to the higher BAC was shot down.

If Michigan adopts the NTSB recommendation [unlikely anytime soon], we here at the Law Blogger will need to think twice about ordering that second drink with our dinner.  The American Beverage Institute, the "spirits" lobby, is already taking steps to prevent this recommendation from gaining any traction, calling the NTSB's stance, "ludicrous", and saying the move would criminalize, "perfectly legal conduct".

On the other hand, the NTSB points to the ever-present threat of drunk drivers still on our roadways, and will not let the nation forget that 10,000 deaths still occur each year due to drunk drivers.  Also, the NTSB points to Europe where a similar legal definition of drunk driving has resulted in a significant long-term reduction in drunk-driving related fatalities and injuries.

Experts agree that once a driver's blood-alcohol is over .05, vision begins to be impaired and driving skills are affected.  Most of the time, this is not a problem.

Try telling that to one of the parents who has lost a child to drunk-driving.  Again, we here at the Law Blogger find ourselves saying: have that night-cap at home, and keep the rest of us out of it.

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After 4-months of proofs, the capital murder case against Jodi Arias has [finally] been submitted to the jury for deliberation and a verdict.  Although the murder of Travis Alexander occurred in 2008, the jury was not empaneled until January 2, 2013.

In an interesting preliminary decision, the presiding judge elected not to sequester the jury.  This means that, although they were provided with a daily admonishment not to discuss the case with anyone outside the courthouse, jurors were left to their own devices when faced with the saturation-media coverage of this trial.

We here at the Law Blogger have posted on the topic of social media and the jury pool, and the problems presented by jurors that seek information about their case outside the courtroom.  In such high-profile cases, the jurors realize they are a part of our lurid true-crime history. 

These folks thus become high-profile jurors.  Many hire attorneys or agents after the trial to discuss lucrative media appearances; even book deals. 

Being in the profession of defending the accused, we wonder over here at the Law Blogger how many of the jurors assigned to this case have succumbed to the temptation of tuning into the media coverage of their case.  How many jurors have Googled some of the witnesses, particularly the experts, that testified in this case?

If any such forays come to light [and let's not forget that every Internet user's keystroke is recorded] this defendant will have at least one good appellate issue.  In our opinion, Judge Sherry Stephens should have sequestered this jury or at least obtained their known IP addresses, and she should have concluded the trial in February, not May.

Such cases give our media-rich culture the opportunity to marinate in the art of lawyering.  Some camps favor the prosecutor; others relish the art of defending the accused.

One thing is for sure -these high profile murder trials cement our collective national fixation with sex, religion and violence.  Not that each of us are latent dysfunctional bi-polar borderline personality stalkers.  Yet, as a nation, we just love the spectacle of the public trial; especially a capital murder trial.  Such trials have taken the place of a public execution in the town square.

Even with an inevitable jury conviction of some degree of homicide, unfortunately Ms. Arias will be with us for decades.  We here at this blog can already see the appeals beginning to form...

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