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.
info@clarkstonlegal.com
www.clarkstonlegal.com
Minggu, 20 Desember 2009
Selasa, 15 Desember 2009
Kingsbridge Armory plans rejected, 45-1
The New York City Council yesterday rejected the Kingsbridge Armory redevelopment plans by a vote of 45 to 1, with one abstention. The vote turned primarily on developer Related's refusal to impose a living wage requirement on retail tenants, a stance that prevented finalization of a CBA between Related and the Kingsbridge Armory Redevelopment Alliance.
The vote was not altogether surprising, as the Bronx delegation to the city council has been actively pushing for the living wage requirement, but it nevertheless comes as a defeat to the Bloomberg administration, which saw the project as a boon to the borough. The rejection comes just about a week after an appellate court threw a wrench into Columbia's plans to build a new campus in West Harlem by holding that the project could not use eminent domain.
Under the New York City Charter section 197-d (available here), Bloomberg has the chance to file a written disapproval of the action, which can only be overturned by a two thirds majority of the city council. Council speaker Christine Quinn has stated that she has the votes to overturn any mayoral veto. If the rejection is sustained, Related will have 30 days to file a complaint for judicial review.
The vote was not altogether surprising, as the Bronx delegation to the city council has been actively pushing for the living wage requirement, but it nevertheless comes as a defeat to the Bloomberg administration, which saw the project as a boon to the borough. The rejection comes just about a week after an appellate court threw a wrench into Columbia's plans to build a new campus in West Harlem by holding that the project could not use eminent domain.
Under the New York City Charter section 197-d (available here), Bloomberg has the chance to file a written disapproval of the action, which can only be overturned by a two thirds majority of the city council. Council speaker Christine Quinn has stated that she has the votes to overturn any mayoral veto. If the rejection is sustained, Related will have 30 days to file a complaint for judicial review.
Senin, 14 Desember 2009
Judges Cannot "Friend" Lawyers Via Social Media Says Florida Supreme Court
A few of my Facebook friends are judges. They've taken a low profile on the news feed. Will Michigan's Judicial Tenure Commission, formed in 1968 via constitutional amendment, seek to outlaw such social network connections like the State of Florida?
In Florida, the Supreme Court's Judicial Ethics Advisory Committee issued a 11/17/2009 decision, holding that judges may not connect with attorneys on Facebook, or similar social networking media. The Committee's decision is based on a Florida's judicial canon prohibiting the appearance that a lawyer, or anyone else, is in a special position to influence the judge.
Floridian judges, however, remain free to post comments to their non-lawyer "friends", and can develop "fan pages" to help with their reelection campaigns. Only the attorney-judge connection is now taboo in Florida.
The Ethics Advisory Committee stated that, "judges cannot isolate themselves entirely from the real world and cannot be expected to avoid all friendships outside of their judicial responsibilities, some restrictions upon a judge’s conduct are inherent in the office."
Ethics are catching-up slowly with attorneys and judges in the web 2.0 world. Some states, like Louisiana, New York, and now Florida, have taken a restrictive view of lawyer's and judge's permissible activities on such sites.
Linked-In, Twitter, and Facebook remain available to our judges. You can expect Michigan's never shy Judicial Tenure Commission to address the situation as soon as the right case rolls around. Shouldn't be too long... Stay tuned.
info@clarkstonlegal.com
www.clarkstonlegal.com
In Florida, the Supreme Court's Judicial Ethics Advisory Committee issued a 11/17/2009 decision, holding that judges may not connect with attorneys on Facebook, or similar social networking media. The Committee's decision is based on a Florida's judicial canon prohibiting the appearance that a lawyer, or anyone else, is in a special position to influence the judge.
Floridian judges, however, remain free to post comments to their non-lawyer "friends", and can develop "fan pages" to help with their reelection campaigns. Only the attorney-judge connection is now taboo in Florida.
The Ethics Advisory Committee stated that, "judges cannot isolate themselves entirely from the real world and cannot be expected to avoid all friendships outside of their judicial responsibilities, some restrictions upon a judge’s conduct are inherent in the office."
Ethics are catching-up slowly with attorneys and judges in the web 2.0 world. Some states, like Louisiana, New York, and now Florida, have taken a restrictive view of lawyer's and judge's permissible activities on such sites.
Linked-In, Twitter, and Facebook remain available to our judges. You can expect Michigan's never shy Judicial Tenure Commission to address the situation as soon as the right case rolls around. Shouldn't be too long... Stay tuned.
info@clarkstonlegal.com
www.clarkstonlegal.com
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