NPR Critiques Michigan's Court-Appointed Defense Lawyers

National Public Radio recently ran a segment on its "All Things Considered" program which was highly critical of the way lawyers are appointed by county circuit courts to defend the indigent accused here in Michigan.  Click here to link to the full story.

The piece attracted dozens of comments.  NPR focused on one of the "bad apples"; Attorney Bob Slamenka from Detroit.  Slamenka just never seems to have sufficient time, energy or resources to pull-off competent representation of his court-appointed felony clients. 

In addition to a series of grievances, Slamenka is now notorious for his appellate representation of wrongfully-convicted sex offender, Eddie Lloyd.  Attorney Slamenk's appeal failed, as do the overwhelming majority of all appeals from criminal convictions in Michigan.  This is nothing new.  The problem arose, however, when Lloyd filed a grievance against Slamenka prompting the following response from the attorney:

"This is a sick individual who raped, kidnapped and strangled a young woman on her way to school. His claim of my wrongdoing is frivolous, just as is his existence. Both should be terminated."

Ultimately, Lloyd was proved innocent by DNA evidence but died just two years after his release from 17-years in prison.  Consequently, Slamenka's ill-worded grievance rejoinder is now "exhibit a" for  what is wrong with the court-appointed criminal defense system.

All attorneys represent criminal clients they suspect are guilty.  When the client loses his case, the attorney is often the first to blame.  The criminal defense attorney functions as a "constitutional warrior", forcing the government to prove its case, even when the odds are against success (for the accused).  If the criminal appellate attorney does his/her job properly, a convicted felon benefits from a well-researched and well-reasoned brief from which his conviction can be tested in the appellate courts.  This principle is fundamental to our system of criminal justice and separation of powers:  everyone gets the opportunity to appeal a conviction.

Unfortunately, Michigan does rank near the bottom of all states in the category of public resources devoted to indigent criminal defense.  In this era of fiscal short-falls, this will not change soon.  Roster attorneys with the Michigan Assigned Appellate Counsel System receive as many as one assignment each week from the Wayne Circuit Court.  These attorneys are paid about twenty five cents on the dollar for what their services are worth in the world of privately retained-counsel.  This type of public legal service is essential if our constitutional principles are to be sustained into the 21st Century.

It sure would be nice if cutting edge defense tools, such as DNA analysis, and the use of court-appointed experts, were available to exonerate the truly innocent.  Yet, unless the court-appointed attorney is focused on his game, all the funding in the world won't save the client.

If you, a family member or friend are in need of quality criminal representation, contact our law firm to discuss your options:
www.clarkstonlegal.com
info@clarkstonlegal.com

Crain's bashes CBAs

Crain's New York Business published an article last year calling CBAs "extortion" and "zoning for sale." These criticisms were repeated last week in an article written by the same author, Alair Townsend, this time bashing the Kingsbridge Armory CBA campaign.

Townsend points out that the Bronx has a higher unemployment rate than other parts of New York, and she faults the borough president and CBA supporters for opposing a project that would create hundreds of jobs. But the Kingsbridge Armory Redevelopment Alliance is not opposing development, and it's certainly not opposing new jobs; the coalition, rather, is opposing low road development and dead-end, poverty wage jobs.

Townsend also contends that the city council can't force the developer to pay a living wage or require union neutrality. Such conditions on project approval might be found to be unconstitutional exactions (see here for background), but Townsend oversimplifies the issues. Most importantly, the wages and unionization issues are not the only concerns that have been raised about the project. The borough president cited concerns about the project's impacts on traffic and existing retail establishments, among other things, and similar issues were also discussed in the draft environmental impact statement. It's completely permissible for the city to take these issues into account when deciding whether or not to approve the project. (See sections 2-04 to 2-06 of the city's Uniform Land Use Review Procedure Rules for more on this.)

Supporting a CBA for the armory redevelopment is not "pay to play," as Townsend suggests. The CBA campaign in this case has a wide base of community support, and local politicians would be remiss if they didn't consider the community's needs during the planning review process.

Mich Supreme Court Passes on DNA Paternity & Parenting Case

Every so often, the seven Justices of the Michigan Supreme Court have a golden opportunity to consider momentous legal issues arising from our county family courts.  As recently as last week, the Supreme Court had the chance to decide a crucial case involving the use of DNA to determine the rights of competing Fathers.

Suprisingly, however, the high court passed on the Genesse County Family Court's Lipnevicius case, remanding the matter to the Michigan Court of Appeals for a determination of parenting-related legal issues.

Months earlier, the Michigan Court of Appeals likewise took a pass on the case when it denied leave to appeal one of the lower court's orders. Essentially, by remanding the case, the Supreme Court is now forcing the intermediate appellate court to decide the issues, despite that court's earlier reluctance to do so.

The case arose in October 2006 when Mother filed for divorce and sought a determination that her husband was not the biological Father of their minor son.  (Note: In Michigan, there is a rebuttable presumption that children born during a marriage are the biological issue of that marriage for purposes of a divorce proceeding.)  DNA testing confirmed that husband was not the biological Father of the boy.

Complicating matters procedurally, bio-Dad (the "other man") was allowed to intervene in the divorce.  Also, Genesse Family Court Judge Michael Theile determined that Mother effectively rebutted the presumption of her husband's paternity with the DNA test.  For his part, Husband requested the family court judge to determine that he was the equitable father of the child, thereby granting him all the rights and responsibilities of a natural father.

The case came close to a trial in November 2008. Interlocutory appeals have since tied the matter up; the case has yet to have a divorce judgment entered as the matter runs its course. The tortous proceedings have included several collateral issues such as drug-testing for the parents, psychological evaluations for everyone, discovery motions, show cause hearings, and a change of domicile to Ohio.  Michigan's jurisdiction over the child also may be tested in the pending appeal.

Meanwhile, Bio-Dad has married Mother and the parents currently live together with their minor son.  The ex-husband has lost significant contact since the child, now 5, was only two years old at the time the divorce was filed. What a mess. 

In Michigan, the equitable parent doctrine was formally established more than 20-years ago in a Michigan Court of Appeals case, but has it's roots in the "equitable adoption" doctrine from over a century ago.  The doctrine seeks to take into account the love and support of a man serving as the true, day-to-day father of a minor child.  In the well-known 1987 divorce case of Atkinson v Atkinson, the Court of Appeals established the following test for application of the doctrine:

[W]e adopt the doctrine of equitable parent and find that a husband who is not the biological father of a child born or conceived during the marriage may be considered the natural father of that child where (1) the husband and the child mutually acknowledge a relationship as father and child, or the mother of the child has cooperated in the development of such a relationship over a period of time prior to the filing of the complaint for divorce, (2) the husband desires to have the rights afforded to a parent, and (3) the husband is willing to take on the responsibility of paying child support.

The equitable parent doctrine has a long tradition here in Michigan and is recognized in many other states.  Ohio, Illinois, Wisconsin, Pennsylvania, Nebraska, New York, Kansas, Oregon and Massachusetts all apply this paternity doctrine in one form or another.  The doctrine is for the benefit of the child, not the parent. 

The Lipnevicius case is destined to return to the Michigan Supreme Court.  Justice Marilyn Kelly, among others, believes the Supreme Court should decide the unique questions of law presented in the case rather than leaving development of the equitable paternity doctrine to the intermediate appellate court.

The case goes to the heart of what constitutes a family and a parent.  Unfortunately, in the modern era of no-fault divorce, given the seemingly ubiquitous nature of contemporary adultery, our family law jurisprudence needs devices such as the equitable parent doctrine in order to protect our children from ourselves.

If you need legal guidance in matters of a parenting schedule, paternity or custody, contact our office to discuss your legal options.

clarkstonlegal.com

info@clarkstonlegal.com

Oakland Prosecutor Sticks with Decision to Quit Sobriety Courts

From its inception in 2003 until January 2009, this Blogger (Timothy Flynn) was a member of the 52/2nd District's Sobriety Court.  This post is an update on a blog our firm posted back in May 2009.

In the earlier post, The LawBlogger addressed the situation with the Oakland County Prosecutor refusing to participate in sobriety courts across the county.  Jessica Cooper has stuck to this decision and she has been receiving much (negative) attention from discrict court judges and now, the Oakland Executive, Brooks Patterson.  Click here for the full article from the Oakland Press. 

In the article, Cooper makes clear that she does not think the sobriety court program is worth the expenditure.  Her comments, however, seem more directed to the Oakland Circuit Drug Court, which was a recent victim of budget cuts.  The statistics she cites (i.e. only 10 graduates) do not apply to the hugely successful district sobriety courts; they graduated thousands of defendants, sustain sobriety throughout the community and may have saved dozens of lives.  No one was ever sitting around singing "kumbaya" as Cooper imagines.  Rather, her APAs were working day after day, session after session, keeping people sober and out of jail.  I often found myself in discussions where I would be arguing for more jail time than the APA.

Here is the original post:

Jessica Cooper has demonstrated a top-down command structure since taking over the prosecutor's office in January. One of the commands from the top is that first-time drunk drivers charged with operating while intoxicated (OWI) are no longer offered the customary plea reduction to operating while "impaired". This new policy may result in unnecessary jury trials.


Having an OWI reduced to "impaired" provides two advantages: less stringent mandatory driver's license sanctions ordered through the Secretary of State (60-90 day restricted license compared to a 6-month hard suspension), and a lower driver's responsibility fee ($500 for two consecutive years, compared to $1000 each year). Other fines, costs and attorney fees are higher in the OWI context.

Even for first-time offenders, a reduction to impaired is not always offered in cases where the blood-alcohol level (BAC) far exceeds the legal limit. With the proscutor's new policy, however, there are no apparent exceptions, even where the BAC is relatively low.

The new policy has been informally acknowledged by numerous Assistant Prosecuting Attorneys over the past several weeks. Defense attorneys are now considering jury trials, where a simple plea to impaired would have resolved the case.

For repeat offenders, alcohol abuse treatment is mandatory and other punishments are increased. Sobriety or "drug courts" have sprang-up in the past several years to address the problem.

In another important policy development from Cooper's office, the Oakland County Prosecutor will no longer participate in these sobriety courts, now spread throughout Oakland County. A sobriety court emphasizes drug and alcohol treatment and rehabilitation over incarceration. Such courts utilize a team approach to manage the intensive probation process. Obviously, the "team" includes the prosecuting attorney, along with a therapist, probation officer, defense attorney, and judge.

The statistics emerging from these courts have forged a consensus among professionals throughout Michigan, and the nation; sobriety-style courts are effective in dealing with drug and alcohol abuse crimes. The Oakland County Prosecutor's office should be participating in society's effort to address irresponsible addictions. The end-result is safer public roadways.

Post Script: The public should not be confused by Cooper's blunt commentary regarding sobriety and drug courts. In the felony context, theraputic courts are dealing with a much tougher customer; in most cases such defendants are three-time felons with serious drug addictions. In the district courts, most defendants are simply struggling with alcohol and overall, have less troubling criminal records.

To contact our firm, click below:

clarkstonlegal.com

info@clarkstonlegal.com

Cheap High Risk Personal Loans UK -A through research and you would get a right one

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Some Kingsbridge Armory links

For anybody interested in the Kingsbridge Armory redevelopment and possible CBA, it's worth a few minutes to take a look at Bronx Borough President Ruben Diaz Jr.'s recommendation to the planning commission. Regarding the CBA, Diaz states:

The developer has not agreed to a socially equitable Community Benefits Agreement. I cannot understand why the developer would not act in good faith with The Bronx and the City as a whole, by not considering the needs of the community. The provisions in the proposed Community Benefits Agreement are both fair and negotiable. Among the most important disagreements with the developer is their refusal to assure living wage provisions, defined by Local Law 38 adopted in 2002, as $10 per hour with health benefits. [The Economic Development Corporation] made it clear in the site RFP that it would favorably view development plans that maximize the number of jobs meeting the City’s living wage and health benefit standards. All the community wishes to do is to be a participant in what could be its greatest socioeconomic investment for generations to come.

It may be hyperbole to suggest that the developer has not "consider[ed] the needs of the community," but Diaz also explains that his office received "significant correspondence" from residents concerned about the need for a CBA. And as he cogently points out, the goal of the planning review process should be "to assure that development of City-owned property and use of government subsidies benefit surrounding communities on whose patronage the financial feasibility of this project will depend."

Diaz gave a number of other reasons for rejecting the proposal:

• no market study was conducted to determine whether the proposed retail uses will be viable, or to determine what their impacts on existing retail establishments will be. "This is critical in terms of determining the best uses for the community and the impact on the surrounding area."
• there is no need for a new grocery store as there are other super markets within a half mile of the project site
• there has been no assurance that the redevelopment will include the siting of at least one school; nor has the developer agreed to include other education facilities (e.g., space for Lehman College or performance space)
  
• "No identification as to how the City plans to use the $5 million acquisition price or annual taxes, which I feel should go towards the development and maintenance of the community facility, and not to the General Fund."
• there is no assurance that the project's interior designs will be consistent with the armory's Romanesque architecture
  
• several transit, traffic and parking issues have not been adequately addressed
  

Here are some additional links to the project's planning documents:

• Environmental Assessment Statement
• EA Positive Declaration
• Draft Scope of Work
• Final Scope of Work
  
• Draft Environmental Impact Statement
• Notice of Completion for DEIS

High Risk Guaranteed Personal Loan -Money Borrow Up to $3000

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Chicago Wal-Mart CBA campaign

Chicago and Wal-Mart have a checkered history. Back in 2006, the city council passed a widely supported ordinance that would have required big box stores to pay a living wage, but Mayor Daley vetoed it. The battle over the ordinance stirred up a lot of tensions--racial, socioeconomic and otherwise.

Now, a coalition of community and religious groups, Good Jobs Chicago, has formed and is seeking a community benefits agreement from the city guaranteeing living wages, affordable health care and unionization rights in any new Wal-Mart development. As a coalition representative stated: "It's the role of government to ensure its citizens that you should not have to work a 40-hour week and still be living in poverty and then have to rely on the government for food stamps and Medicaid".

It seems like they're looking for legislation, not a CBA.

Postville Slaughterhouse CBA campaign

Community members and supportive organizations (including not-so-local ones) have formed the Postville Community Benefits Alliance to negotiate a CBA with the new owner of a kosher meat packing plant. Postville, a small Iowa town, is heavily impacted by the plant's operations, and community members want a method to initiate dialogue with the company. The company, however, wants nothing to do with a binding agreement. The entire situation is complicated by the checkered history of the previous plant owner, which went into bankruptcy after an immigration raid last year.

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Chief Justice Roberts to Attend Notre Dame Game at Big House

According to the Michigan Daily, the on-campus newspaper at the University of Michigan, U.S. Supreme Court Chief Justice John Roberts will speak today at Hill Auditorium as part of the events surrounding the UM Law School's 150-year anniversary; he will also attend the football game tomorrow versus Notre Dame.

In accepting the invite from the Law School, Justice Roberts apparently turned-down a $15,000 honorarium which UM says it never expected him to accept in the first place.  Talk about Ivory Tower politics...

Most of the impressive Law School events are “sold-out”.  Nevertheless, for the 100,000 plus fans expected to attend the classic fall matchup at the Big House, it’s nice to know you’re in supreme company.

Go Blue!

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The Michigan Medical Marihuana Act

Last November, Michiganders legalized the use of marihuana for medicinal purposes. The resulting legislation, known as the Michigan Medical Marihuana Act (MMA), has been widely criticized for being vague and confusing. This blog post summarizes the act and addresses some of the questions now arising in communities with licensed users and care providers.

Shortly after last fall's election, the Michigan Legislature passed the MMA on December 4, 2008, making Michigan the 13th state to allow the cultivation and possession of marihuana for medical purposes. The Act cited a series of findings related to the beneficial uses of marihuana in treating nausea, pain and other effects from a variety of debilitating medical conditions. The Act also notes that according to the FBI, 99% of all marihuana possession arrests nationwide are done pursuant to state, rather than federal law. It is important to note that possession of the drug remains illegal under federal law.

The MMA defines a "debilitating medical condition" as cancer, glaucoma, HIV, hepatitis C, and other diseases along with other chronic afflictions which cause pain and nausea.  A "primary caregiver" is defined as, "a person who is at least 21 years old and who has agreed to assist with a patient's medical use of marihuana and who has never been convicted of a felony involving illegal drugs."  A "qualifying patient" is "a person who has been diagnosed by a physician as having a debilitating medical condition."

The basic mechanics of the Act provide that qualifying patients and primary care providers (marihuana growers) must possess a "registry identification card", issued by the Department of Community Health.  Cardholders are not subject to arrest or prosecution for marihuana possession/distribution provided the patient keeps less than 2.5 ounces of smokeable pot.  Care providers are allowed to maintain up to 12 plants for each qualified patient; stems, seeds and unusable roots do not count toward the plant limitation.

Physicians also have immunity from prosecution relative to their certification of the patient's need for the drug, so long as they conduct an assessment of the patient's medical history.  A legitimate physician-patient relationship is required.

Since the U.S. Supreme Court decided the case of Conant vs Walters in 2003, physicians have been able to recommend a patient's use of marihuana (but cannot prescribe pot by placing the recommendation on a prescription form). Doctors can also make notes regarding their recommendations in the patient's chart and can testify on behalf of a patient's medical use of marihuana in a court of law. The Supreme Court's Conant decision paved the way for passage of the MMA.

Primary care providers may receive compensation for their marihuana.  Selling marihuana paraphernalia also is allowed under the MMA, and such paraphernalia cannot be seized.

Persons merely present during the use of marihuana for medical purposes likewise are not subject to arrest.

Sound too good to be true?  When marihuana is distributed to persons other than qualifying patients, the registration card is revoked, and the provider is subject to a 2-year felony.  Also, driving while under the influence of marihuana remains illegal, as does smoking in public. Use or possession of pot on school premises or on school buses remains prohibited. And yes, it remains illegal to smoke in a jail or a penitentiary, regardless of your medical condition.

The Act sets a short timetable (120-days) for the Department of Community Health to promulgate regulations for the administration of the possession/distribution credential.  The delay of these regulations is giving way to some confusion among law enforcement and the public as to the parameters of legal vis a vie illegal pot possession. 

For example, a recent case out of   Madison Heights involved a couple arrested in March during a drug-raid. The couple had applied for their certification cards prior to their arrest and received the cards a month after their arrest. In dismissing the case brought against the two defendants, 43rd District Judge Robert Turner characterized the MMA as, "the worst piece of legislation I've seen in my life", according to the Detroit News.  Judge Turner's dismissal was appealed by the Oakland County Prosecutor where it is currently pending before Oakland Circuit Judge Lisa Gorcyca.

If you have been charged with use, possession or distribution of marihuana, or are interested in obtaining an identification card, contact our office to discuss your options.

Post Script:  This topic made the front page of the Sunday NYT on 11/29/2009.  Take a look.

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Washington D.C. CBA helps launch affordable housing

An article in Thursday's Washington Business Journal notes that developers have broken ground on a 26-unit affordable housing project, which is being financed in part by investors in a nearby commercial development. The commercial component required a zoning change, and the developer put $700,000 into a community benefits agreement fund in order to get those approvals.

U.S. Supreme Court to Re-Hear Argument on the "Hillary Movie" Case

On September 9th, the nine Justices of the United States Supreme Court will end their summer recess early to return to Washington for a rare re-argument in what has turned out to be a momentus case: Citizens United vs Federal Election Commission.

The case involves federal regulation of the political documentary titled, "Hillary, The Movie", which took a critical look at the character and career of Ms Clinton back in her pre-presidential candidate days. The documentary was produced by a conservative advocacy group; Citizens United. The issue in the case arose when the group was denied permission from the FEC to distribute the short film via "on-demand" cable services.

Re-arguments at the high court are very rare, giving rise to speculation that the Supreme Court may be getting ready to issue a momentus decision. Such a decision comes at a critical time in our history relative to government control and influence over private business.

The chief issue in the case concerns application of the McCain-Feingold law which bans the use of corporate money in elections. Some argue this restriction puts a stake in the heart of free speech; others assert that the ban is necessary to avoid a flood of corporate election funding which would corrupt and pollute our democratic process. The FEC banned the Clinton documentary on the basis it was produced, in part, with corporate profits. Direct corporate-funding of political campaigns has been banned for more than 100-years in America (Tillman Act 1907).

The case also has a Michigan connection in that it could overturn a 1990 decision of the high court, Austin vs Michigan Chamber of Commerce, which upheld restrictions on corporate spending in election campaigns.

The Supreme Court's decision to re-hear oral argument has prompted the filing of more than 40 "amicus" briefs from such disparate groups as the NRA and the ACLU. Stay tuned.

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The Legal Watercooler: Law School. Worth the gamble??

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Minneapolis wifi CBA implementation

Peter Fleck, a member of the Minneapolis Digital Inclusion Fund Advisory Committee, posted some info yesterday about the implementation of the Minneapolis Wireless CBA. Among his findings:

• The wireless provider complied with the initial $500,000 funding requirement. The Committee has so far disbursed about $400,000.
• Although required to put 5% of its pretax earnings into the community fund, the wireless provider has not yet done so.
• The wireless provider has established a "walled garden," which means basically that anybody who can get a wifi signal can gain access to the city's website and some neighborhood websites.
• So far, 51 out of 100 free accounts have been awarded to community technology centers.
• The wireless provider has not helped the Committee with fundraising, as it's obligated to do.
  
• Nor has the wireless provider held biannual community meetings.

The Committee has a meeting Wednesday, and Mr. Fleck hopes that some of these issues can be addressed.