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Criminal Appellate & Post-Conviction Services

Michigan Court of Appeals Holds that a Discretionary Trust is Not Subject to SCFRA Reimbursement Suit

The State Correctional Facility Reimbursement Act or SCFRA provides that the State Treasurer can bring suit to attach a prisoner’s assests to pay for the cost of incarceration.

In 1989, the Michigan Supreme Court ruled that a discretionary trust was exempt from attachment under the related Mental Health Reimbursement Act.
Miller v Dep’t of Mental Health, 432 Mich 426, 430; 442 NW2d 617 (1989). In State Treasurer v Isabelle Skaff Trust, Court of Appeals No. 291306, the Court of Appeals applied that ruling to SCFRA and held that a properly drafted discretionary trust could avoid SCFRA liability as well.

The decision should be consulted carefully in drafting any such trust, but the discretionary trust appears to be the best option out there for a family member to provide some support to a prisoner/relative without just gifting the money to the state. The State Treasurer will be challenging any such trust and they should be drafted by an expert.

Congratulations to must friend and colleague
Patrick Levine Rose over at for noticing this important, but unpublished ruling. Note because the ruling is not published, it is not binding on subsequent panels, but it appears the best strategy so far for preserving some assets for a prisoner’s community based reintegration.

Court of Appeals Says First Offender MIPs Cannot Be Given Probation

For reasons that escape me, district judges around the State of Michigan have decided to declare World War III on minors in possession of alcohol. Even though most of the violators are young adults in that district, who are often honors students, and are college bound (or in college), many district judges have felt duty bound to stretch the punishments for minors in possession beyond those required by law. For first offenders, many courts have attempted to go beyond what is the statutory maximum by nominally sentencing the defendant to probation but then saddling the defendant with a series of probation conditions that are rather onerous in nature.

People v John Williams, Court of Appeals No. 293553, the Court of Appeals ruled that probation could not be imposed on first offenders. While the ruling is unpublished and therefore not binding on other courts, it is likely to be followed. The ruling had two law and order judges on the panel and one moderate. The opinion is likely to command the respect of other judges. My friend Lisa Kirsch Satawa has a nice article on this case which people may wish to consult for more information.

Do Citizens Have a First Amendment Right Advocate Jury Nullification?

A recent New York indictment brings to a head the thorny issue of jury nullification. Jury nullification has existed since the earliest days of juries. Because a US jury’s acquittal is final, a prosecution has no way to appeal an acquittal that is granted which is contrary to the facts or the law. Attorneys dance around this issue. We cannot overtly argue for jury nullification, but know in sympathetic cases, a jury may ignore the literal elements of the offense and acquit because they sympathize with the Defendant.

Retired Pennsylvania State University chemistry professor was indicted for jury tampering for passing out leaflets on the courthouse steps urging prospective jurors to do precisely that. As this
New York Times article points out, this case will test the limits of the First Amendment. get

Governor Snyder Reorganizes Michigan Parole Board & Abolishes Clemency Advisory Council.

On February 7, 2011, Governor Snyder signed Executive Order No. 2011-3 which effectively restored the state of the Michigan’s Parole and Commutation System to where it was before 2007. The order moves the Parole & Commutation Board (now renamed the “Parole Board”) back to the Department of Corrections, places it under the control of the Director of the Department of Corrections, and abolishes the Executive Clemency Advisory Council. The order also reduces the size of the Board from fifteen to ten members and makes them all reapply for their jobs. Prior to 2007, the Board was also at ten members.

It is unclear what other policy changes are lurking under this change, but this could mean that the current administration is deemphasizing community reintegration as part of its corrections strategy. The extra five members were added to the Board could keep up with its increased workload. The downsizing in staff could mean a corresponding downsizing in the amount of paroles and clemencies.

Update: I just found an article on this order by Paul Eagan of the Detroit News. His article makes a couple of points. First, it quotes Governor Snyder saying that “we need to let the professionals in the Corrections Department determine whether it’s appropriate to release prisoners.” This could mean that Snyder is intending to be more deferential to his Corrections Director’s policies. That Director still needs to be named. Second, it could be a SOP to prosecutors who complained that Governor Granholm’s accelerated process was too accelerated. Mr. Eagan ran a similar article yesterday, but it seems to have similar content.

Grand Rapids Press stated that Governor Snyder was actually doing this with the intent to do de-politicize the process. It cited to a commitment by the Snyder Administration to continue to “right size” Michigan prisons. Their article cited to a National Council of State Legislature’s expert who stated that Michigan was holding prisoners too long and that that prisoners should be presumptively entitled to parole after serving 120% of their sentence.

Last month, I commented on
New York Governor Cuomo’s decision to right size New York prisons and the fighting he was facing from their unions and politicians. For those who are interested, here is a link to the Governor’s Press release. It doesn’t appear to add anything new. Stay tuned.

A Divided Michigan Court of Appeals Narrowly Defines a "Locked Enclosure" Requirement for Growing Medical Marijuana

In People v King a two to one panel of the Court of Appeals narrowly defined what a locked enclosure was in a manufacturing of marijuana case. Judge Fitzgerald dissented.

Mr. King had a caregiver card and was was growing medical marijuana in his home. He grew it in two places. The first was an outdoor fenced area which was six foot tall and locked with a chain and padlock. There was no roof so someone could climb over the fence. It may have also been possible to left the fence up and come underneath. The other area was his locked home, but the backdoor lock was missing a nob and someone could open the door by directly manipulating the latch. The Court of Appeals ruled that neither facility constituted a locked enclosure within the meaning of the law. Judge Fitzgerald launched a strong dissent.

The problem with Michigan’s Medical Marijuana law is that if the police can find a minor variance form the law, they get to charge you with a felony and forfeit your assets. If a doctor’s office, a restaurant, or other licensed establishment had a similar violation, they would receive a ticket and a fine their first time up to the plate. Law enforcement and prosecutors don’t like the law and are looking for ways to evade it. Just last week,
Royal Oak passed a local ordinance restricting it. I suspect what their real hope is that they can stop Medical Marijuana from taking root in Michigan for five years. At that point, the Legislature can overturn the People’s referendum.

Right now, with a law degree and significant criminal training, I would be afraid to grow or use medical marijuana. With all my legal training, I could not guarantee that prosecutor or a police officer could not find some technical violation on one day of my life and charge me with a felony.

My advice right now is:

  • Grow the marijuana in a separately locked room;
  • Use a digital locking pad on the door so that the key would not be accessible to a non-caregiver;
  • Be strict about the quantities that are maintained;
  • Check your local zoning laws;
  • Keep your original card on you if the product leaves the home;
  • Place a xerox of the license on the outside of the door;
  • Encrypt your digital data with TrueCrypt picking a good password. The police will seize your computers and attempt to read your patient information and harass them;

Keep copies of all your records off premise. If the police raid your home, they will seize all your records. All of this, however, is shooting at a moving target. No one can give advice with absolute certainty and this advice may prove dated before I hit the “publish” button.

The "CSI Effect" Should Influence Jurors

Media outlets around the country are running two threads that are contradictory, but I doubt many papers have realized it yet. The first is the problem with the forensic labs, flakey experts, and shoddy investigations. The papers have been great about convicting the innocent. The papers, however, are also buying into the prosecutorial saw about the “CSI Effect.”

The argument goes something like this. Because jurors watch TV, they see all these tests which could have been run, but which are not. They are holding it against the State and wrongfully acquitting. This
weekend’s NPR question whether there is any statistical proof behind this assertion. So far, the proof is rather thin. In a recent Fordham Law Review, the author question whether the “problem” was bad as prosecutors claim. I was particularly troubled by the quotes from one prosecutor that CSI made the jury demand “slam dunk” evidence before convicting a defendant and this was a problem. Apparently in that prosecutor’s mind, proof beyond a “reasonable doubt” was something less than a “slam dunk.”

I agree that there is no central computer that functions like it does on TV. On TV shows, police agencies pull up credit card records, cell phone records, and other records on the fly. In the real world, the police have to contact the respective providers, obtain investigative subpoenas or search warrants, and it takes time. This is a time compression tool which allows tv police to solve a complex crime in an hour (less time for commercials).

I disagree, however, with the fact that jurors should convict a defendant despite the fact that the police didn’t do as thorough an investigation as they could because they didn’t deem the case important. We are locking someone up as a result of that investigation and evidence around the country is proving that first impressions aren’t necessarily right. How would people feel if their doctor took such an approach with cancer treatment?

Prosecutor’s are weaving this approach into jury selection, jury arguments, and the defense bar is sitting back and largely tolerating the same. Reduced to its essence this is a plea to further dilute the reasonable doubt standard.

When I started practicing law, jurors were instructed that a reasonable doubt was evidence (or the absence of evidence) which would pause a person in making the most important of life decisions. A common example was “knowing the flaws that you know” about this hypothetical house you are looking at, “would it cause you to walk away from the transaction.” Now, most judges tell a jury that a doubt must be based on reason and that a fanciful or hypothetical doubt is not enough. Prosecutors are arguing that the jury must be able to identify the doubt.

Now, the butcher is being allowed to put his second thumb on the scale with this so-called “CSI effect.”

DEA to Ban Fake Pot

New Jersey Criminal Defense Attorney David T. Schlendorf is reporting that the DEA has taken action to ban synthetic marijuana. The rule would take effect in thirty days from the notice which appeared in early January.

Update: Here are a few more links on this story. The
Washington Times has a good story on the subject. It is a few months old, but informative. A similar story ran in USA Today.

New York Times Raises Concerns About shaken baby syndrome (non-accidental head trauma or abusive head trauma).

Today’s New York Times has an excellent article dealing with the problems involving the all too popular forensic diagnosis that a child is suffering from shaken baby syndrome (now referred to as “non-accidental head trauma”). For years, doctor’s and nurses were taught that subdural hemorrhaging and retinal hemorrhaging were indicate of child abuse (shaken baby syndrome). Courts around the country routinely admitted this evidence and Daubert challenges were failing.

Recently, the reliability of this evidence has come into doubt. The Wisconsin Court of Appeals order granting a new trial in the
Audrey Edmunds case is widely cited as an example of a change in attitude by the Courts about this evidence. The Edmunds case, however, is the exception and took place only after years of fighting by the Wisconsin Innocence Project. Most U.S. courts continue to admit this evidence without question and contemptuously turn back defense Daubert motions.

Update: I just found an interesting discussion on a group called Common Health where folks on both sides are discussing the issue. While the level of rhetoric is sometimes fairly high, the discussion is fascinating.

Meanwhile, the
Canadian Government (particularly after the “Goudge Report”) has been looking into wrongful convictions based on this horribly abused diagnosis. Search on Dr. Charles Smith and you’ll find a series of troubling cases where individuals were locked up based on this pediatric forensic pathologist’s testimony. Canada is now freeing these individuals, compensating them, and trying to restore the affected individuals’ lives.

Update: The Winnipeg Free Press and Globe & Mail are now reporting that Dr. Smith’s medical license was revoked yesterday based on his testimony. See also the excellent discussion of Dr. Charles Smith and the damage he caused on the Shaken Baby & Sudden Infant Death Syndrome Blog.

The UK government has also set up Innocence Commissions to deal with the number of wrongful conviction which have taken place. In the UK, the
Goldsmith Commission has been clearing family after family of these wrongful convictions. (Individuals interested in the UK approach should also read the new Crown Prosecution Service Standard).

Even where there is evidence of bleeding, the actual injury could have taken place period much earlier in time than originally imagined. Rebleeding is much easier than the experts originally believed.

Parents who have had a child suffer a horrible injury want to lash out. T
he Eappens still blame their former nanny Louise Woodward for the injuries to their child despite all heir medical training and the developments. Most importantly, the prosecution’s main expert in the case (Patrick Barnes) switched viewpoints and is now one of the strongest critics of the diagnosis.

You have two massively different points of opinions on this evidence and you have to ask how can a lay jury decide.
Under Michigan law, when the state believes a person died as a result of criminal activity they have prove that causation to a medical certainty. One has to wonder how that can ever be proven in Michigan were the cause of death is “shaken baby syndrome.” The elephant in that room, however, is that for the case to be a murder case there has to be a dead baby Cases involving dead babies are emotionally very difficult to dismiss.

In Michigan, Court have bee generally admitting this evidence and treating the question as a question for the jury. As was reported earlier
here and here, the Bulmer acquittals in the Macomb County Circuit Court at least open the possibility that things are changing. The Michigan Innocence Project is taking a hard look at these cases.

Michigan Supreme Court Rejects Appellate Practice Section's Proposal Re: Attaching Unpublished Rulings

In 1996, the Michigan Court of Appeals started publicly releasing unpublished opinions to the online publishers. They are now available from both Westlaw and Lexis. They are also available on the Court of Appeals database and Google Scholar. Based on the wide availability of the opinions, the Appellate Practice Section of the State Bar recommended that the Court Rules be amended to eliminate the technical requirement of attaching these rulings. The Supreme Court silently rejected the proposed rule.

Michigan Supreme Court Authorizes E-Filing Pilot Project at Wayne County Circuit Court

On February 1, 2010, the Michigan Supreme Court authorized the Wayne County Circuit Court to go ahead with its five year pilot e-filing project. The pilot project will start with asbestos cases and move out to other civil cases. The order seems to avoid implementing the system on the criminal side. Even though the criminal division and civil division are technically part of one court, the two systems have not been fully merged. For many years, the criminal division was a fully separate court. While the voter’s merged the two system, the filing and computer systems have never fully integrated.