Maya Tsimhoni

Children's Village is not the place you want to be as a child, especially if you come from a background of relative privilege. You'll see things there that your mom and dad never explained; for the first time in your life, you'll need to check your six.

Yet that is where three young Oakland County siblings wound-up over the past two weeks when they refused to comply with Judge Lisa Gorcyca's ruling that they spend parenting time -a lunch- with their father. The three minors were housed among the unruly teens that have seriously run afoul with the law at a very young age.

The case is a headline-grabber and we here at the Law Blogger expect that it will acquire some national media legs by the weekend now that Fox2 News broke the story on their evening newscast last night.

The facts are simple enough: after a series of protracted court hearings to litigate parenting issues, the children were ordered to spend time with their father; when they refused, they were confined to the Village for civil contempt of court. Family law judges do have powers over all those folks under their jurisdiction, including both parents and all the children in a divorce proceeding.

This case is different because it features putting the children, rather than the recalcitrant parent, into confinement. Judge Gorcyca, no doubt frustrated when the siblings became obstructionist -perhaps with their mother's encouragement- elected to exercise some of that power as a sanction for the contempt shown for her parenting order. Were other options available on the family judge's menu? Yes, of course there were; but this is the one she chose.

Over the years, we have seen the dynamic of older children faced with court-ordered parenting schedules they deem onerous. The well known rule-of-thumb in the industry is that the older the child, the more difficult it is to get him or her to comply with a distasteful court order.

But the Tsimhoni children are relatively young [ages 14, 10 and 9]; apparently, they banded together in defiance of the judge. This defiance has been honed from protracted disputes between the parents for the past five years.

The Tsimhoni case, grinding on since December 2009, features a long-list of family court professionals well-known in the industry, brought into the divorce proceeding to assist with the deep-seated and seemingly irresolvable parenting disputes. The case has featured pitched allegations of parental alienation and kidnapping.

Here is a copy of the GAL William Lansat's report to the family court judge, posted online as the story was breaking. The GAL report sets out the context within which the judge made her decision.

When an emergency motion to readdress the children's incarceration was denied by Judge Gorcyca, an appeal was lodged and a petition for a writ of habeas corpus was filed Monday by the mother's new law firm. A petition for habeas corpus alleges that a person is being incarcerated by the state in violation of a constitutional right.

Even though Judge Gorcyca, obviously frustrated by the children's defiance of her parenting order, placed the children into the Village until they emancipate at age 18, we predict they will be released shortly. The question here is whether their inevitable release comes at the hands of Judge Gorcyca or through some other jurist.

Family court judges have vast powers at their disposal. This case will stand as an example of the measured limits of those powers.

July 9th Post Script: As we predicted, a two-hour hearing was conducted by Judge Gorcyca yesterday, which concluded with her ruling that all three children should be released from the confinement of Children's Village.

For those among our readers that are students of the family court and for the family law professionals, here are two comprehensive articles in the Detroit News that provide a more detailed context for the judge's decisions in the Tsimhoni case. Take a look here, and here. Of course, the two top writers for the Freep joined in: Brian Dickerson and Mitch Albom. The Observer published an interview with the father.

The case, now making huge traction on the State Bar of Michigan's family law listserv, features articles that have posted large chunks of the critical hearing that led to the children's commitment to the Village. Here is an example from the Daily Tribune.

September 9th Post Script: Continuing to deliver headlines, this case featured a hearing today that resulted in the Court being advised that the Tsimhoni children successfully completed their court-ordered stint in a summer camp, have completed intensive therapy for parental alienation, and have been reunited with their father. The court has scheduled a hearing for October to determine whether Mother's physical custody of the children should be switched to Father. The court file remains sealed.

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On numerous occasions over the years, I've represented criminally charged shooters from Detroit over in the Frank Murphy Hall of Justice. Rough ride folks.

Last week, the SCOTUS issued a very significant 5-4 decision in a shooting case straight outta Detroit. In Lafler v Cooper, and it's companion case, Missouri v Frye, the High Court held that the 6th Amendment guarantee of the effective assistance of counsel in a criminal proceeding, applies to the plea bargain process.

In the Lafler case, the defendant tossed a shot toward the head of his victim, but missed.  She fled, he pursued, spewing lead.  In the end, he caught her in the buttock and abdomen; she survived the assault.

Charged with attempted murder, Lafler faced the music over in the FMHJ; the "Murph" as we defense attorneys refer to that meat-grinder of a court house.  [Some may recall the building as the old Detroit "Recorders Court".]  As is very common in Wayne County murder and attempted murder cases, he was offered a deal: plead guilty and do less time.

His criminal defense lawyer believed he could beat the case on the theory Lafler did not attempt to murder his victim, because he shot her in the butt.  Yeah, good luck with that buddy.  Based on this legal advice, Lafler rejected the plea offer and went to trial.

The jury wasn't having it, convicting Lafler on all counts.  He was sentenceed to a term of imprisionment that far exceeded what the prosecutor offered.

The Michigan Court of Appeals rejected Lafler's "ineffective assistance of counsel" argument, and the Michigan Supreme Court declined further appeal.  Next, Lafler filed a habeas corpus petition in federal court. 

The Sixth Circuit Court of Appeals held that the 6th Amendment guarantee of effective assistance of legal counsel in all critical phases of the criminal process applies to the plea bargain process.  This decision was affirmed by a sharply divided Supreme Court, with Justice Anthony Kennedy writing for the majority, and with the conservative Justice Antonin Scalia reading his dissent from the SCOTUS chamber when the opinion was announced.

SCOTUS held that the right to effective assistance of counsel does indeed attach during the plea process; almost always THE critical point in the criminal prosecution according to Justice Kennedy.  He's right on that count.

The High Court ultimately held that when an accused "misses out" on the plea bargain process, or rejects a plea due to bad legal advice, as in Lafler, then the 6th Amendment is violated.  Justice Kennedy remanded the case to the lower federal court with instruction for that court to mandate the state court to re-offer the plea bargain, or to leave the defendant's conviction and sentence undisturbed.  The sentencing judge over at the FMHJ must perform a "balancing test" to decide which way to go.  See why we need lawyers...

Justice Scalia did not agree that the plea negotiation process was within the scope of the 6th Amendment's right to counsel.  Along with the other Justices in dissent, Scalia also crituqued the majority's failure to properly define the government parameters in this newly created constitutional right of plea bargaining.  The dissent sees years of additional litigation over plea bargains gone bad.

So pay attention to those plea offers all you criminal defense lawyers out there, or your representation may be deemed, er, ineffective.

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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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Everyone accused of a crime has a right to have the matter tried before a jury with the heightened "beyond a reasonable doubt" evidentiary standard.  Sometimes, however, the jury gets it wrong.

When that happens, you have a constitutional right to appeal.  Most convictions, statistically, are affirmed at the intermediate appellate level.  From there, a convicted felon has a discretionary appeal to the Michigan Supreme Court.

The Michigan Supreme Court selects few cases each year; most petitions for a writ of certiorari, especially when they are from prison inmates, are rejected.

Once your state appellate rights are exhausted, you have the right to petition for habeas corpus in the United States District Court.  Hopefully, your state court appellate attorney had the wisdom to "federalize" your brief in the intermediate state appellate court because if not, all your constitutional issues are deemed waived.

If the Habeas petition is denied in federal district court, as most are, there is a constitutional right to appeal even further, to the United States Circuit Court of Appeals.

The United States Supreme Court is the end of the road.  A petition for a writ of certeriorari to the SCOTUS is, well, best of luck to you....

Most would agree that the incarceration of wrongly convicted individuals is one of the true horrors of our criminal justice system; a less than perfect system that sends people to prison from time to time who did not commit the crime for which they were convicted.

The State Bar of Michigan's blog recently posted some fresh literature addressing this troubling subject.  We think it's worth a look.

Over the weekend, for example, the Detroit Free Press profiled its first in a series of articles detailing a West Bloomfield family's plight following criminal sexual conduct charges.

In addition to the case profile in the Freep, a more detailed study by the Campaign for Justice and the Michigan ACLU is included in the post, tracking 13 wrongly convicted individuals in Michigan; this piece also impugns Michigan's court-appointed counsel system.

The SBM blog post also includes a link to Reason Magazine's nation-wide study featuring UM Law Professor Sam Gross who concludes that wrongful convictions are far more common than most of us believe.

We are not sure what the solution is to this problem.  Many folks in our free society seem hell-bent on breaking the law in major ways, committing "crimes against the person", to use a classification phrase from Michigan's sentencing guideline manual.  No doubt, prosecutors often have a full plate.

But when the accused is innocent, we all lose some of our individual rights, liberties and freedoms.

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Did you know that at any given moment, up to 2.3 million citizens are confined in our prisons in the United States?  Unfortunately, we lead the world in the incarceration industry.

This week, the Supreme Court will hear extended oral argument (80-minutes) in the case of Schwarzenegger v Plata.  You may recall that the governor of our largest state, Arnold Schwarzenegger, declared in 2006 that acute prison overcrowding had reached a crisis stage, "that gets worse with each passing day."

In California, there are approximately 160,000 men and women behind bars.  The prisons in that state are operating at 195% capacity meaning that two inmates occupy a space designed for one.

If petitioners are successful, a favorable ruling from the SCOTUS could release up to 40,000 inmates in California alone.

So far, the Prison Law Offices in Berkley, a non-profit organization specializing in prisoners' rights cases, sucessfully petitioned for convening a special three-judge District Court panel to assess the prisoners' claim under the Prisoner Litigation Relief Act.  Once convened, the prisoners' lawyers next convinced that panel to find that all conditions for a prisoner release order had been met.

The three-judge panel (not an appellate court, mind you) then ruled that the prison population must be reduced (significantly) over a two-year period.  This order, along with some complex jurisdictional issues, will be argued at SCOTUS this week.

One of the core issues is whether the admittedly overcrowded conditions in the California prisons affect the inmates' constitutional rights.  This approach is distinct from your basic habeas corpus petition and could result in a landmark prisoners' rights case.   

Among several other arguments, California asserts that it is simply not equipped to cut loose tens of thousands of convicted felons into its collapsing economy.  It does appear there is no good solution to this knotty problem.

Our laws become meaningless unless enforced.  Violent offenders must be punished to deter other violent crimes.  At what point, however, do we become a nation behind bars?

Michigan Connection:  Attorney General Mike Cox has joined several other states in filing an amicus brief in favor of rescinding the prisoner release order.

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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, a federal judge granted Seaman's petition for Habeas Corpus.  Habeas relief is considered when a convicted inmate, having exhausted her state court appeals, sues the warden of her prison in federal court on the theory she is being illegally detained by the State of Michigan in light of constitutional errors in a state court criminal proceeding.

Ms. Seaman was jury convicted of first degree murder before soon-retiring 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.

With her state appellate options exhausted, Seaman turned to federal court via Habeas Corpus.  In her initially successful petition, she asserted that she was denied her right to effective trial counsel, guaranteed by the Sixth Amendment to the U.S. Constitution, when Attorney Lawrence Kaluzny did not challenge a ruling by the trial court that limited the testimony of Seaman's expert on "battered spouse syndrome".  [BTW: In Oakland County, you just cannot hire better trial counsel than Larry Kaluzny.]  The federal judge has ordered a new trial for Seaman.

We here at the LawBlogger, however, need you to stay tuned on this one as Michigan Attorney General Mike Cox is appealing the federal district court judge's order to the U.S. Sixth Circuit Court of Appeals.

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In January 2000, Van Chester Thompkins of Southfield committed a drive-by style shooting, killing one victim and wounding another.  He was convicted by an Oakland County Jury in May 2002 of first degree murder, assault, and a variety of weapons charges.

The case was initially assigned to now-retired Judge Richard Kuhn and subsequently re-assigned to Judge Michael Warren. Thompkins was represented at trial by West Bloomfield attorney, Lawrence Kaluzny.

From these local beginnings, this case went all the way to the United States Supreme Court (SCOTUS).

Thompkins was apprehended in Columbus, Ohio nearly a year after the shooting and questioned extensively by Southfield PD detectives.  During his custodial interrogation, the suspect refused to answer the detectives' questions for several hours.

Nearly three-hours into the mostly one-way interrogation, the following exchange occurred:

     Detective:  "Do you believe in God?"

     Thompkins:  "Yes."

     Detective:  "Do you pray to God?"

     Thompkins:  "Yes."

     Detective:  "Do you pray to God to forgive you for shooting that poor boy down?"

     Thompkins:  "Yes."

Kaluzny's motion to suppress this statement was denied by the trial judge.  On the basis of this one-word confession, the jury convicted Thompkins, who is doing a life sentence in Coldwater, MI.

The conviction was appealed to the Michigan Court of Appeals and affirmed in an unpublished opinion issued in February 2004.  Detroit appellate attorney Elizabeth Jacobs challenged the lower court's rulings on the motions to suppress Thompkins' statement and to suppress defendant's identification by the surviving shooting victim.  Jacobs also raised issues of trial misconduct by the Oakland County Prosecutor, claiming that Kaluzny's failure to raise the issue below rendered Thompkins' legal representation constitutionally deficient.

The intermediate appellate court disposed of Jacobs' argument on the suppression issue with the following ruling:

Defendant argues that the trial court erred by denying his motion to suppress his statements to the police. Defendant asserts that the police improperly continued to interrogate him after he “implicitly” invoked his right to remain silent by failing to answer the officers’ questions. We disagree.

The record discloses that defendant was advised of his Miranda rights and, according to the interrogating officer, verbally acknowledged that he understood those rights. Contrary to defendant’s argument, the record does not demonstrate that defendant asserted his right to remain silent. Although defendant refused to sign the advice of rights form, he continued to talk with the officer, albeit sporadically. He answered questions with brief responses, or by nodding his head, but never said he did not want to talk or that he was not going to say anything. “When a defendant speaks after receiving Miranda warnings, a momentary pause or even a failure to answer a question will not be construed as an affirmative invocation by the defendant of a right to remain silent.” The trial court did not clearly err in concluding that defendant voluntarily waived his right to remain silent and that he did not subsequently invoke his right to silence. Defendant’s statements were properly admitted into evidence.

The Michigan Supreme Court declined Defendant's invitation to further review his case.

Once a convicted defendant exhausts all avenues of appeal in a state court, that defendant can avail himself of the federal courts via a petition for habeas corpus.  Thompkins habeas petition was denied in the United States District Court for the Eastern District of Michigan (in Detroit).

In a remarkable opinion from the United States 6th Circuit Court of Appeals, Thompkins' conviction was reversed.  The federal appellate court was unimpressed with the above analysis from it's Michigan counterpart; inferring that their unpublished opinion was weak on judicial application of significant precedent.  The federal appellate court also believed the state appellate court got the facts of Thompkins' interrogation wrong.

The 6th Circuit relied on the prior and seminal SCOTUS decisions of Miranda v Arizona and North Carolina v Butler, which establish an accused individual's right to remain silent, and imposes a "heavy burden" on the state to demonstrate that a suspect, once advised of this right, has waived his privilege against self-incrimination.

In reversing the 6th Circuit, the SCOTUS held that by answering "yes" to the detective's questions about God, Thompkins gave an "implied" waiver of his rights and further, that from now on, defendants must expressly and unambiguously state their intent to remain silent to their interrogators.  Also, police are no longer required to obtain written waivers executed by a defendant.

The case provides a slight advantage to police interrogators in that they can now continue to question a suspect until he affirmatively asserts his Miranda rights.  In the police interrogation context, many people are simply not inclined to do so thus, our Miranda rights may have less meaning under the hot lights of persistent, aggressive and skillful police interrogation.

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

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

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

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

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

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

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

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

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

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

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

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