Court of Appeals Invalidates Patient-to-Patient Sales Under Medical Marijuana Act

Narrowly construing Michigan’s Medical Marijuana Act, the Court of Appeals just ruled that patient-to-patient transfers are not permitted. Isabella County Prosecutor v McQueen, Court of Appeals No. 108238. While I disagree with the ruling, I respect Isabella County’s decision to bring the case as a civil suit rather than a criminal prosecution. I seriously disagree with the county prosecutors who have made decision to proceed using criminal prosecutions against ambiguous conduct done under the color of a medical marijuana license.

Sex Offenders: The Last Pariah's

The blog Congress, Courts, and Sex Offenders has an interesting editorial making the case that society’s current obsession with sex offenders is misplaced and that they have become the last pariahs. The series of ill thought out laws have actually done more harm than good and is based on a misconception of who the typical perpetrator is. What do you think?

California Legislature Requires Warrant for Cell Phone Searches

Overturning a California Supreme Court decision to the contrary, the California Legislature has required police to get warrants supported by probable cause to search people’s cell phones. During an automobile stop, police can easily search most vehicles based on the legally diminished privacy interest in these stops. Because of the mobility of automobiles and open nature of a passenger compartment, police have a variety of tools that can get them into the car. This includes protective searches, searches incident to an arrest, inventory searches, and “protective frisks.”

Our smart phones carry all sorts of personal information. In many ways, the thoughts in these devices are more personal than the thoughts an individual wrote in their diary (an area of law where the US Supreme Court had historically afforded significant privacy interests. Should the police be able to browse through these to their heart’s content? A number of software companies are offering tools that allow even the ordinary traffic cop to easily break through passwords on these phones search these portable computers to their hearts content. The California legislation is an important piece of legislation which the MIchigan Legislature should emulate with one exception. The statutory search incident to an arrest exception will encourage pretext arrests and makes no sense. Once the individual is in custody, there is no impediment to getting the warrant.

West Memphis Three to Be Freed, But State May Avoid Liability.

CNN is reporting that a deal has been struck to release the “West Memphis Three.” In 1993, these three men (Damien Echols, Jessie Misskelley, Jr., and Jason Baldwin) were convicted of murdering three boys from West Mephis Arkansas. The three will be allowed to maintain their innocence, but are being required to concede that they were prosecuted in good faith by the State. While I am not an Arkansas attorney, this moves seems to be designed to cut off monetary liability for the state.

There is something is something wrong with a system which refuses to compensate individuals for wrongful incarceration, regardless of fault. They have lost everything and will have to restart their lives penniless. Innocence should be enough. Our system should not require a dual showing of actual innocence and affirmative misconduct on the part of an individual player.

Hats Off to the NLG: Jailhouse Lawyers Manual 5.0

Even though US Courts say that someone with a high school education is capable of litigating a federal civil rights suit on their own with four to five hours of law library access per week, this has not been my experience. With my than twenty years of experience on prison law, I still find the law complex and many of the rules far more technical than those associated with ordinary civil litigation. For a person litigating from their prison cell, rising to the occasion is a Herculean Challenge. Yesterday, the National Lawyer’s Guild released its free version of its 5th Edition of the Jailhouse Lawyers manual in PDF format. Even though the book is written for a prisoner, many lawyers will also find the tool very helpful and you can’t beat the price!

Attorneys Go After Judge Small's Local Sentencing Policy

Judge Kimberly Small of Bloomfield Twp makes no secret that she imposes jail sentences for first time drunk drivers. She has imposed them to otherwise law abiding individuals with a single transgression. I have seen these sentences imposed on accountants, a Friend of the Court employee, and many others. The problem is that trial counsel rarely brings a motion seeking her disqualification and there is no record to appeal. This is apparently changing. Attorneys Robert Larin and Kenneth Mogil have challenged Judge Small’s ability to sit on these cases. They claim that her open sentencing policy constitutes grounds for her disqualification. This is a very talented legal team and it will be interesting to see how it turns out. For more on this challenge, read this article on Michigan Lawyer’s Weekly’s website.

In 1972, the Michigan Supreme Court ruled in
People v Snow, 194 NW2d 314 (Mich 1972), that a trial judge could not have a local sentencing policy. A great deal has changed in the intervening years. It will be interesting to see whether our appellate courts continue to follow this principle.

Support Animals for Crime Victims?

This weekend, there have been articles appearing in the Philadelphia Inquirer and the New York Times about a new trend to provide alleged child sexual abuse victims “service animals” while they testify on the stand. These animals are being offered under the guise that it reduces the emotional impact of the testimony, but prosecutors are candidly admitting that the animals increase the number of convictions that are being obtained. The issue is whether they create sympathy for the victim. No one likes be cross-examined. It is tough, but the strain of being on the stand often makes people slip and make stupid admissions. Should the witness stand be a comfortable place? Even for a child, I question whether this is correct. The testimony that we are getting has been the result of multiple interviews, work with social workers, and is already been “massaged and air brushed.” Is this one step too far?

Virginia Bar Says that Prosecutor Cannot Demand Waiver of IAC or Post-Conviction Challenges as a Condition of a Plea Agreement

The Virginia State Bar recently issued a Legal Ethics Opinion (LEO 1857) that addresses these issues by declaring it unethical for a defense attorney to recommend these provisions, and made it unethical for a prosecutor to require waivers of post-conviction challenges (e.g. 6.500 motions) or waivers of ineffective assistance of counsel challenges as a condition of a plea agreement.