Should Teen "Sexting" be Criminalized?

Last winter, a 14-year old from Olympia, WA wanted to send her boyfriend a special momento.  In an exercise of judgment she would come to profoundly regret, she snapped a full-on frontal nude with her cell phone.

She then attached the pic to her boyfriend Isaiah's number and pushed send, sealing her fate.

For his part, Isaiah was coaxed by another girl he thought was good friends with his girlfriend into forwarding the pic.  Actually, the other girl was a rival for Isaiah's affections with an epic episode of cyber-bullying on her mind.
 
Annotating the pic with a disparaging comment, the rival did a global attach, publishing it to all her contacts.  From there, it went viral within hours.

Before school started the next day, parents and middle school administrators alike were scrambling with damage control.  By mid-day, local police were on the scene conducting interviews.  Isaiah was arrested at the school by the end of the day.

Isaiah, the rival, and another middle school student were charged with distributing child pornography; a felony.  The three teenage offenders spent at least one night in the local juvenile detention center and were brought before a magistrate in standard blue jumpsuits.

The community was pitched into an uproar.  Some parents wanted the accused teens tried as adults; others wanted the subject of the photo charged along with the publishers.

In the end, the prosecuting attorney moderated the charges, offering a misdemeanor reduction equivalent to our "disorderly conduct", with the opportunity to earn a dismissal in exchange for some very targeted community service.

As a component of their probation, the teen misdemeanants were required to create a public service  campaign about the hazards of sexting.  The prosecutor fashioned a sentence that would both capitalize on the aftershock of the incident as well as educate the public about what was acceptable conduct for their children.

Looks like "mission accomplished".

But you would be fooling yourself to think that our culture's sexual saturation is going to change anytime soon. Our children are bombarded with images on a 24/7 basis.  Remember Motorola's Super Bowl ad of Megan Fox snapping a pic of herself in a bubble bath.  Wonder who she sent that pic to...?

We here in the Detroit area are well familiar with sexting hazards; it basically brought down the hip-hop Mayor after all. [Well, technically a perjury conviction accomplished that; but still, just sayin....]

So think twice before you push send folks.  This bit of digital common sense applies to any manner of content you are about to publish.

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"First and Ten": New Teen Driving Law

The new driving law that takes effect Wednesday is known as "First and Ten".  Teens must stop adding (non-family) passengers under age-21 after the first one; and back in the driveway by ten o'clock pm.

The present curfew is midnight, without any passenger restrictions.  The Michigan State Police website has an excellent summary of the new restrictions.

The new law applies to all level 2, or "intermediate" drivers in Michigan's Graduated Driver Licensing (GDL) program.  These are drivers who are at least 16-years of age who have also completed their coursework and road test.

Statistics published by the Insurance Institute for Highway Safety provided the impetus for the new law.  These stats show that in 2008, more than 60% of all teen age passenger fatalities involve a teen age driver.  Also, teens are disproportionately responsible for all traffic fatalities: nearly 20% even though they make-up only 14% of America's driving population.

Driving is indeed a priviledge and central to our way of life.  Modern distractions such as cell phones, GPS devices, and sound systems all contribute toward shifting a drivers' focus from the road to the interior of the vehicle.  Add a few teen age friends and a teen driver and it's an accident waiting to happen.

The new teen driving law has been splashed on bill boards around Metro-Detroit to increase awareness among drivers; parents and teens alike.  

Violators of the new law will receive 2-points on their master driving record and will have their probationary driving period extended for up to a year.

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Dr. Dre Successfully Defends Privacy Suit Brought By Detroit Officials

The case has percolated up and down Michigan's legal system for a decade.  Today, the Michigan Supreme Court handed Dr. Dre a long-sought win over former Detroit officials who tried to sue the rapper and a host of promoters on a tort-based eavesdropping theory.

In reversing the Michigan Court of Appeals, the High Court adopted the rationale of dissenting judge Chris Murray who concluded that no reasonable juror could conclude that the city officials had a reasonable expectation of privacy in their heated back-stage discussions with Dre's crew at the Joe Louis Arena in the summer of 2000.

Considering that MTV was in the house with their camras rolling, I agree with Judge Murray.

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

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

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

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

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

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

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

The victory for Dr. Dre in the Michigan Supreme Court further strengthens the First Amendment reputation of Honigman Miller's Herschel Fink.

The final outcome was hard-fought and the right decision.  A public figure, back stage with his promoters, trying to work-out content problems with public officials while MTV camera crews record the give-and-take, does not describe a private moment.  Whatever words are uttered in the mix are fair game to digitized and splashed throughout the world wide web.

To force the rapper through a trial on the public official's tort claim would have a chilling effect on such productions.

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Home Run King Faces Federal Perjury Charges in San Fransisco

Barry Bonds
Associated Press

Barry Bonds, formerly of the Pittsburgh Pirates and San Fransisco Giants, is the defendant in a federal perjury case that began today; the case was charged back in 2007.

Bonds holds several major league baseball records, including most home runs in a career (762), and in a single season (73).  He is the son of former all-star Bobby Bonds.  Son Barry has been named league MVP more than any other player, taking that award 4 straight years at the height of his career.

Unfortunately, he ended his career under the cloud of the federal indictment that is now unfolding in a San Fransisco trial.  The charges allege Bonds testified falsely to a federal grand jury on the subject of his use and sources of steroids.

Earlier, Bonds had been offered immunity in exchange for truthful testimony.  Bonds insisted he was unsure of what the substance(s) were, claiming he was "juicing" with flaxseed oil and arthritis cream for all he knew.

It's in the hands of the attorneys and jurors now.  On the first day of trial, however, Bonds received a bit of good news when his former trainer, Greg Anderson, chose a holding cell over live trial testimony.

This does not have the makings of a quick trial. 

Not the best lead into Opening Day.  Let's just hope its all done by the playoffs.

In the Future, Everyone Will Be a Lawyer for Fifteen Minutes

It had to finally happen.  This blog has posted on the problems facing post-Great Recession law graduates: gigantic non-dischargeable student loans; a glut of newly minted lawyers; and few law-related job prospects.

According to the Law School Admissions Council, over the past year, law school admissions have dropped by over 11% to their lowest levels in a decade; perhaps due to the factors listed above.

The profession will no doubt rebound.  But not before more pain is inflicted.  Some in the industry predict that law school applications will continue to fall off over the next two years as the U.S. economy tries to mount a sustained recovery.  And any newly minted lawyer can tell you how difficult it has been to become engaged in the industry.

In the meantime, if you or a family member is absolutely determined to enter the profession, one advantage is to get an early start.  Along these lines, the Michigan Supreme Court Learning Center is again offering law-related programs for middle school and high school students this summer.  The program features a moot court exercise, discussions from jurists, lawyers and other legal professionals, and other law-related activities.

If you have a student interested in the law that would benefit from this program, contact Rachel Drenovsky:

drenovskyr@courts.mi.gov or (517) 373-5027.  

Here is the link to more information about the program from the Michigan Supreme Court Learning Center.

The Right to be a Millionaire

The NFL team owners, a tony group, just announced an official lock-out of their players.  For their part, the players have dissolved their union and several super-stars have filed a high profile class action law suit against the owners.

Football is America's most popular sport and has grown into a billion dollar industry over the past decade.  With the lock-out and the law suit, however, looks like the 2011 season is in jeopardy.

The super-star quarterbacks' lawsuit, formally known as Brady vs NFL, was filed in the U.S. District Court in Minneapolis, MN and asserts an antitrust claim against the storied league while seeking an injunction to terminate the lockout.

The quarterbacks are represented in Minneapolis by the Berens Miller law firm.  The league is in the good hands of Attorney Aaron Van Ort, a former law clerk to both SCOTUS Justice Antonin Scalia and well-known 7th Circuit Judge Richard Posner.

Another Justice Scalia connection:  The players' case, initially assigned to U.S. District Judge Richard Kyle who promptly recused himself, was re-assigned to Judge Patrick Schiltz, also a former Scalia law clerk.

For their part, the owners, on average only slightly wealthier than the league's star players, are claiming poverty in the complexity of operating a modern football franchise. 

While millions of NFL fans wait to see whether there will be a season, and drafted rookies wait to see whether they will become newly minted millionaires, the attorneys in the case will be walking away with millions in legal fees.

Now go count your money.

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SCOTUS Erodes Witness Confrontation Requirement

This case was straight out of Detroit.  Anthony Covington was lying next to his car at a gas station, shot in the stomach, bleeding out, but still alive and speaking with the Detroit Police.

Just before he died, he identified Rick Bryant as his shooter.  Bryant's subsequent conviction, based largely on the dying man's identification, went all the way to the SCOTUS and was decided last month.

Conviction affirmed; and in the process, one of the many exceptions to the hearsay rule is broadly expanded at the expense of accused persons everywhere.

The 6-2 decision in Michigan v Bryant erodes the confrontation clause of the Sixth Amendment requiring that all witnesses against an accused be brought to court.  Surprisingly, Justice Sotomayor wrote for the majority; Justice Giinsburg recused herself; and just as surprisingly, Justice Scalia wrote in dissent.

This case is significant to the extent that it allows police officers to testify at a trial about what an out-of-court (i.e. hearsay) witness said when that witness is no longer available for purposes of cross-examination and in-court confrontation.  Whether a dying man's declaration comes into evidence at a criminal trial depends on the "testimonial" nature of his utterance.

Prior SCOTUS decisions have addressed this problem.  Until now, two domestic violence cases established each end of the continuum.

In the well-known case of Davis v Washington, the declarant's statment -made during a 911 call- was admitted because the emergency was ongoing when the statement was made.  The presence of the emergency made the statement non-testimonial and thus, admissible in court even though the declarant was not present at the trial.

On the other hand, when a statement is made after the emergency is extinguished, as in Hammond v Indiana, then such a statement is clearly testimonial; that witness must be brought into court, or the statement is excluded from trial.  The witness in Hammond made her statement from the safety of her home during a subsequent police visit. 

The Bryant Court constructs a complicated two-perspective test to determine the "testimonial" nature of a dying man's declaration.  A reviewing court must now consider both the declarant's primary purpose in uttering the statement, along with the recipient's purpose in receiving the statement.  Say what??

Writing for the dissent, Justice Scalia, not usually a champion for the defense but an ardent supporter of the confrontation clause, thinks the question "is an absurdly easy one".  The murder victim from Detroit, in his last breath, was telling the Detroit Police who shot him so they could apprehend the shooter; not to stop any "emergency".  Therefore, the statement was testimonial in nature and should not be admissible in court according to Scalia's analysis.

Seems like each year SCOTUS issues at least one decision from Detroit and the surrounding area that has a local murder at issue.  Last year it was Warden Berguhis v Thompkins; this year it's Rick Bryant's case.

Kinda sad that we're known for the laws that get spawned from these murders.

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Does the MERS Corporation Own Your Home?

The signs have been piling-up for more than a year now. Mortgage foreclosures have careened out-of-control.

The chief question in courts of law is: who owns the subject property, and can they prove it by producing a mortgage note? Increasingly, the respective answers are: “Don’t know” and “No.”

In 2010, the Arkansas Supreme Court ruled that MERS (Mortgage Electronic Registration Systems) Corporation was prohibited from filing foreclosures in that state.

A federal bankruptcy judge in Long Island ruled just last week that MERS could not act as the “agent” of the mortgage note owner. Judge Robert Grossman acknowledged in a case called In re: Agard, that MERS may be involved with up to 50% of all home foreclosures nationwide, and that his decision may negatively affect the mortgage industry (i.e. accelerate its demise), but his decision required that the process comply with federal and state bankruptcy laws.

Many MERS-held "notes" will either not materialize, or will not pass muster relative to the many networks of applicable legal standards.

The Iowa Attorney General recently announced progress, along with other state attorneys general, in conjunction with the newly established Consumer Financial Protection Bureau, to overhaul the process of how the nation’s largest banks conduct the foreclosure process.  The group essentially is a nation-wide focus group of state law enforcement officers and bureaucrats tasked to generate a list of best-practices they can mold into national standards.

In Florida, attorney and foreclosure-giant, David Stern, under investigation by the Florida Attorney General, just announced that his law firm is suspending foreclosure operations.

In Utah last month, a local judge made national headlines by allowing a judgment debtor to rip-up his mortgage note in open court and literally walk away from his home, debt-free, because the lender could not prove ownership by producing a mortgage note.

All this has the board of directors of the Virginia-based MERS Corporation very nervous. MERS is a private mortgage registry database that has essentially replaced our nation’s tradition of publicly stored land ownership records. MERS’ CEO, R.K. Arnold, among the founders of the corporation, jumped ship in January.

As the foreclosure meltdown has unfolded over the past 24-months, many mortgage lenders’ practices of cutting corners in the lending process, and making some rather huge mistakes, have come to light. This has had the effect of making it difficult, and in some cases impossible, to actually prove who owns a particular home.

The early challenges from county officials in the 1990s to the MERS system of high-speed and cheap securitization went unnoticed in favor of the mortgage lending industry. As the MERS system of speed collateralization took off, it developed a process of instant deputization, where thousands of loan officers received “certifying resolutions” in minutes via the Internet.  These financial deputies or, in some cases "agents", were authorized to process mortgage transfers and foreclosures on behalf of MERS.

All good things usually come to an end; sometimes a bitter end. Now, the judges in all the various courts are tipped off; and bankruptcy judge Grossman's decision may go federally viral.

Where will this all lead? Will the state attorneys general, through a new layer of bureaucracy, be able to arrest the process and introduce effective reform? Or will judges, case-by-case, reluctantly pull the threads that will undo our nation’s mortgage lending system?

Only time will tell, so stay tuned on this one.

In the meantime, if you are experiencing mortgage payment difficulties in Oakland County, the Oakland County Treasurer has partnered with GreenPath Debt Solutions, the United Way and others to establish the Oakland County Foreclosure Prevention Initiative.   Simply click on this link or call (888) 350-0900 for assistance with the eviction process or to speak with a certified housing counselor.

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The Cost of Free Speech

"For the past 20-years, the congregation of the Westboro Baptist Church has picketed military funerals to communicate its belief that God hates the United States for its tolerance of homosexuality, particularly in America's military."  So reads the first line of today's 8-1 SCOTUS decision in the Snyder v Phelps case.

By now, the story is familiar to all of us: Albert Snyder's son, Marine Lance Corporal Matthew Snyder, was killed in action in Iraq.  Nearby Corporal Matthew's funeral, members of the Westboro Baptist Church protested, with many members of the congregation carrying anti-gay and anti-america signs.

Albert Snyder sued in federal court (pursuant to diversity of citizenship jurisdiction - when each party is from a different state), claiming the intentional infliction of emotional distress.  A jury awarded Mr. Snyder over 12 million dollars.  The Eleventh Circuit Court of Appeals reversed the verdict on First Amendment grounds.

In affirming the 11th Circuit, the High Court stressed the particular set of facts, as developed by the parties to the dispute.  Key among those facts were that the church protesters advised the police of their planned protest in advance, and obeyed all the restrictions (i.e. staying 1000 feet away from the funeral) placed upon their gathering.

The lone dissenting justice, Samuel Alito, characterized the speech as a "vicious verbal assault" that did not merit First Amendment protection.

Only the hardened zealots among us would condone the disruption of the funerals of our nation's soldiers by protesting against gays in the military with such cheap attention-grabbing tactics.  Justice Oliver Wendell Holmes perhaps said it best:

If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought – not free thought for those who agree with us but freedom for the thought we hate.

Chief Justice Roberts ultimately concluded, along with seven other justices, that the church members were legally allowed to be proximate to the funeral and say what they had to say.  The following excerpt from Roberts' decision perhaps best captures the spirit of Justice Holmes in the sanctity we place on freedom of speech:

Westboro believes that America is morally flawed; many Americans might feel the same about Westboro.  Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible….Speech is powerful.  It can stir people to action, move them to tears of both joy and sorrow, and– as it did here– inflict great pain.

Even particularly controversial, virulent and inflammatory free speech remains free; regardless of content.  In upholding the First Amendment in Snyder, the first case sited by Chief Justice Roberts was to the seminal case of Hustler Magazine, Inc vs Jerry Falwell.  That case, from the early 1970s, pitted the evangelical preacher against America's iconoclastic pornographer.

In order to be truly free, the content of our speech simply cannot be regulated by government.  There cannot be a "heckler's veto".

This case belongs to the progeny of the flag burning case from the 1990s and the Nazi march through Skokie, IL from the 1980s.  Each of those forms of controversial speech was protected back in its day; this is just the latest incarnation.

For the scholars among our readers, the oral arguments for this case are at this link.  Definately worth the hour to listen; you get a real feel as to the judicial persona of the various justices.

SBM's Judicial Crossroads Task Force Recommends Streamlining State Courts

Former Oakland Circuit Judge Barry Howard (left) and
Attorney Edward Pappas co-chaired the task force.

The lawyers saw it coming long ago.  With waves of deep budget cuts crashing down upon the public sector, how could the judiciary keep-up with the ever higher demand for its high-quality service we have come to expect?  Judicial reform.

At the direction of the Michigan Supreme Court, the State Bar of Michigan selected a task force of attorneys and judges from across the state back in early-2009.  The task force met for a full-day each month from September 2009 through last May, gathering ideas, discussing problems and suggested solutions, and debating various cost-cutting strategies.

Last week, the task force announced its findings and recommendations.  The following are the more significant findings and recommendations of the task force:

• Our state courts have a mixed-funding structure rather than a state-funded system, with municipalities and court-generated revenues contributing heavily to each county court's operational costs.  This patch-work is having a disparate impact on various courts throughout the state, with some areas getting hit much harder than others; 
• Our 83 counties are served by 585 full-time trial court judges at the district, circuit and probate levels.  The number of judgeships should be reduced according to up-to-date demographic data and historic caseload data; 
• The recommended reduction in judgeships must only take place upon the retirement of currently sitting judges in order to maintain judicial independence; 
• Judicial services should be coordinated and consolidated by region after the "best practices" are identified;
• Increased flexibility among court administrators in the reassignment of workload must occur once the recommended judicial downsizing and service coordination begins;
• Full and effective use of available technology to assist in the delivery of judicial services will reduce costs in the long-run; and 
• Continued use of innovative community-based programs in the trial court setting that address mental health and substance abuse problems will continue to yield significant cost savings.

Basically, the courts will have to do more with less resources.  A familiar song among the state workers and teachers spread throughout the counties and across the nation.

The good news for attorneys practicing in Oakland County is that we have already have most of the docket converted to an e-file system.  There are still some dockets -criminal and some family law cases- that do not currently accommodate electronic filings.

Another innovation to take hold in some of the county circuit courts in Southeast Michigan is electronic file retrieval or Internet-based databases that are searchable by members of the public. A good example of this system is Oakland County's Court Explorer where you can search the docket entries in a case and, for a very nominal fee, order a copy of any document filed in the case.  Usually, in a few hours, the document show-up in your email.

Another (even better) example of electronic access is the Wayne County Probate Court where the documents are imaged and available for viewing electronically with the click of your mouse.  As for the Wayne Circuit Court, however, not so much...

Roster attorneys for the Michigan Appellate Assigned Counsel System (MAACS), for example, physically have to be present on the 9th floor of the Frank Murphy Hall of Justice in order to access our client's register of actions in Wayne County.  This amounts to difficult "access to justice" when, on an appeal, you are simply trying to piece together the procedural history of your client's case.

Electronic docket access differs widely from county to county.  In Genesee, the docket entries of a case is displayed in fragmented screen images.  If you print-out the register of actions in the case, you get several pages of chopped-up, difficult-to-read DOS-style text.  A waste of paper, and definitely not user-friendly.

While the idea behind the task force was to identify some of the "best practices" at the county level and implement them state-wide, this blog wonders whether this will be possible at the political level.

Our law firm's attorneys and paralegals access county court records everyday across the State of Michigan.  From our perspective, standardization of electronic access would greatly improve our efficiencies in the delivery of legal services.

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