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:
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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.

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