This blog has covered the child support saga of Ms. Selesa Likine.  Her felony child support conviction was just reversed by the Michigan Supreme Court, and her case has been sent back down to the Oakland County Circuit Court.

The family court was created by statute pursuant to the Michigan Constitution back in 2000; now, there is a family court division for every county in Michigan.  Family courts issue support orders that obligate a parent to pay a specified sum each month for the support of their minor children.

Ever since parents have been ordered to pay child support, there have been those who cannot or will not make their required  payments.  There are different reasons for not paying: some withhold payment from their ex-spouse for revenge; others simply cannot afford to pay, or do not put a high priority on their child support obligation.  [e.g. the "Worm" aka Dennis Rodman.]  Still others find it impossible to satisfy their court-ordered obligation based on hard economic circumstances.

Regardless of the reason, when a child support payor fails to pay pursuant to a court order, an arrearage builds-up and the courts take notice.  Quite apart from the family court, the county circuit courts of general jurisdiction are the courts where felony criminal matters are prosecuted.

The Michigan Penal Code has a law on the books known as "failure to pay child support"; a four-year felony.  This felony has always been considered a "strict liability" crime, meaning that there is no defense to the charge once the prosecutor proves that the family court issued a support order and the payor, for whatever reasons, did not pay.

On Tuesday, the Michigan Supreme Court addressed the felony child support statute in People v Likine.  This case is significant to the extent that it expressly reverses a Court of Appeals decision that precludes a defendant from asserting any "ability to pay" defense whatsoever.  The Likine Court held that "impossibility to pay" is an affirmative defense on which a jury can be instructed at a trial provided certain offers of proof are tendered.  Also, the Court reaffirmed that, despite the availability of this affirmative defense, felony child support remains a "strict liability" crime.

In the initial divorce case, Selesa Likine was diagnosed with depressive schizoaffective disorder.  Family Court Judge Linda Hallmark initially ordered her to pay only $54 per month in support; a relatively low amount.

Likine's support was increased, first to $184 per month then to $1131 per month, on the basis of "imputed income".  At a support hearing conducted before the FOC Referee, evidence revealed that Ms. Likine made [false] representations of high income on two mortgage applications in order to purchase an expensive home.

Based on these representations, and based on the  projected earnings of someone paying on that large a mortgage, the FOC Referee imputed income of $5000 per month to Likine.  Of course, this was a fiction; not only did Likine never earn that much income, she basically had no chance whatsoever to satisfy her new increased child support obligation.

Enter the criminal charge against Ms. Likine.  When her lawyer tried to "tell it to the judge", and then to the jury, about her lack of income, it was too late.  The trial judge relied on the holding of a Michigan Court of Appeals case [People v Adams] precluding Likine from presenting any evidence on her so-called "inability to pay."

Bottom line: now, a felony defendant is able to offer proof of an "impossibility" to pay, but not an inability to pay.  The latter concerns must still be addressed to the family court.  The reason is that our criminal jurisprudence requires a "mens rea" or "guilty mind" as a required component to every crime listed in the Michigan Penal Code.

Note to attorneys: The Likine case was a companion case with two other consolidated cases.  In those other cases, the felony child support convictions of the child support payors were NOT reversed on the basis that neither defendant had preserved the "impossibility to pay" issue in the trial court.  

Just sayin; had they done so, those convictions also may have been reversed.

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Last week, the Michigan Supreme Court granted leave on three cases challenging the constitutionality of the Felony Non-support Act; the statute criminalizing the failure to pay timely child support to the custodial parent.

This blog has covered the felony child support issue relative to the People v Likine case from Oakland County Circuit Court.  That case, along with People v Harris (from the Muskegon Circuit Court) and People v Parks (Ingham County), were granted leave for further appeal. 

A decision from the Supreme Court is expected sometime in 2011.

In Harris, Justice Robert Young, Jr. dissented from the majority of his colleagues in granting leave on the grounds that the appellant pled guilty in the trial court, cutting a deal on his child support payments to avoid jail.

One of the defenses that will be addressed in all three pending cases is whether a child support payor charged with this felony can raise the issue of his or her “inability to pay” in the criminal court.  Of course that defense is often raised in family court. 

Once you’ve been charged with felony child support, however, the “inability to pay” defense is unavailable per the Michigan Court of Appeals holding in the published case of People v Adams.  In granting leave for further appeal, the High Court expressly directed the parties to address the constitutionality of the Adams holding.

Generally, if you are having difficulty keeping your child support obligation current, you should immediately seek relief in the family court before you build an arrearage. 

An arrearage, if significant, can lead to a felony charge.  Technically, a day late and a dollar short is all that is required by the prosecutor to charge a case.

If you’ve already been charged, then you can still attempt to seek relief from the family court in the form of a reduced ongoing monthly obligation and, with the payee-parent’s consent, a waiver of interest and service fees.  There must be some basis for modification other than you simply ignoring your obligation.

We will keep our readers updated on this strand of cases.

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Judge Wendy Potts has been conducting an interesting pilot program on the jury process in Oakland Circuit trials.  She maintains the only courtroom in one of Michigan’s busiest venues where jurors are encouraged to submit written questions to witnesses, take notes during the trial, and discuss the case during their morning and mid-afternoon breaks.

Once the jury is empanelled, each juror is provided a notebook with all the jury instructions and, in civil cases, a set of stipulated trial exhibits for their convenient reference (or distraction) throughout the trial. 

The jurors welcome the opportunity to interact with the input of proofs.  Judge Potts instructs jurors to avail themselves of the opportunity to submit written questions to each witness called to testify.   

These are significant modifications to the “classic” jury trial in Michigan.  In other county trial courts, jurors are expressly instructed not to discuss the case with anyone during the trial (which may take several days, even weeks).  In the classic jury trial model, jurors must keep the facts of the case to themselves until they retire to the jury room for deliberations with their chosen colleagues.  Nor are jurors usually given notebooks to write down their thoughts.

In Judge Potts’ court, however, jurors are encouraged to take a stab at figuring out just what is really going on by writing out their own questions at the conclusion of examination by the attorneys.  Judge Potts fields the written questions and discusses them with the lawyers in a bench conference to determine whether the question(s) should be posed to the witness.  

This has an obvious effect on how the proofs of the case are submitted to the jury.  Once the attorneys complete their scripted examinations, the jurors have the opportunity to follow-up.

Instead of keeping what they have just seen and heard to themselves for the duration of the trial, they are permitted to discuss the testimony, as it unfolds; including the answers to their own questions. 

No such a thing as a “dumb question”, right… 

On Thursday and Friday of this week, I had the opportunity to sample Judge Potts’ experimental jury trial method in a criminal felony case.  At least one juror had a question for every witness.  Judge Potts asked the attorneys at the bench whether we wanted the question posed to the witness.  

While I did not mind the (benign yet telling) questions posed by the jurors, it concerned me, as defense attorney, that the jurors were free to discuss the case while the proofs were going in.  

But would jurors, so encouraged, seek other means of obtaining information about the case?  Perhaps they would Google the names of witnesses or the attorneys.  Judge Potts expressly warned them not to do this.

It is in the nature of trial attorneys to want control of the information being submitted to the fact finder.  After all, ours is a results-oriented business.  

In the jury trial that concluded today, my client was acquitted.  It was difficult to tell weather the innovations had any effect on this outcome.

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The mighty UM Law School has its hands all over the recent constitutional challenge to the felony child support statute.  The case was originally charged by UM Law Alumni and Michigan Attorney General Mike Cox.  The defendant-appellant in the case is represented by the Michigan Innocence Project, run out of the UM Law School by Professor David Moran.

The case, People vs Likine, was the subject of a one-day jury trial in the Oakland County Circuit Court back in November 2008.  Years earlier, Selesa Likine was ordered to pay child support for her three minor children pursuant to her divorce proceedings; also in Oakland County.  The criminal case against Likine charged that she fell behind on the support payments from 2005 through 2008, creating arrears in the amount of nearly fifty thousand dollars.

Ms Likine attempted to assert the defense of an "inability to pay" the support ordered by the family court.  She claimed disability via the Social Security Administration stemming from her diagnosis of Schizoaffective Disorder and Major Depressive Disorder.  Likine also asserted that she was unemployed due to a lengthily hospitalization at the beginning of the charging period.  She further claimed that her support obligation was erroneously calculated by the family court, as it was based on a "phantom" imputed income of $5000 per month; a wage she claims she never earned in her entire life.

The felony child support statute is one of strict liability.  The Michigan Court of Appeals ruled in a 2004 published case (People v Adams) that a defendant cannot assert a defense at trial of his or her, "inability to pay" the court-ordered child support.

Accordingly, in the Likine case, the Attorney General requested trial judge John McDonald to preclude Likine from introducing any of the above facts regarding her disability and resulting lack of income from jury consideration.  The AG's motion was granted based on the Court of Appeals' Adams ruling.

Just prior to the beginning of her criminal trial, Likine's attorney moved for reconsideration of Judge McDonald's evidentiary ruling; this time arguing that precluding her from presenting evidence of her "ability to pay" and of her employment history, violated Likine's constitutional Due Process rights under the 14th Amendment to the United States Constitution.  The motion was again denied.

Not surprisingly, Likine was convicted by the jury of failing to pay court-ordered child support and sentenced to one-year probation.  When the jury was deliberating her case, however, they sent out a note to Judge McDonald asking for information about Ms Likine's employment history.  Due to his earlier rulings in the case, Judge McDonald refused to answer the jury's query.

Following her jury trial, Likine secured appellate representation from UM's Professor Moran, who filed a motion for new trial; this time asserting that Likine's conviction violated the Michigan Constitution.  McDonald, stating that he sometimes disagreed with the Court of Appeals' Adams decision, nevertheless denied the motion.

In her appeal currently pending before the Michigan Court of Appeals, Likine relies on a Michigan Supreme  Court decision from 1889 which held that statutes cannot criminalize conduct which, through no fault of the defendant, is impossible to avoid.  Professor Moran asserts that such a criminal law lacks the requisite, "voluntary actus reus" (bad act).

Along the same lines, Professor Moran raises a claim of violation of federal Due Process under the U.S. Constitution.  In this fashion, Likine argues on appeal that the Court of Appeals' Adams decision wrongly eliminates the actus reus requirement of the felony child support statute, rendering it unconstitutional on its face.

In response, the Attorney General asserts that Adams remains controlling in felony child support convictions. The AG's argument is that the Michigan Constitution is not offended when a "prior judicial determination" establishes a payment obligation for which it is a crime to ignore.  Since Likine's support obligation was established by the family court, she was afforded Due Process.

In a somewhat surprising move given the high-powered counsel on both sides, the Court of Appeals has submitted the case to a 3-judge panel for decision without the benefit of oral argument.  The order to dispose of the case solely on the briefs was issued last week, despite both sides filing timely briefs which requested oral argument.

The losing side on this one will probably try to take the issue before the Michigan Supreme Court.

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