California Considering a Ban on Jailhouse Informant Testimony

Jailhouse informant testimony is one of the leading causes of wrongful convictions. These individuals are often career criminals who testify that the accused admitted to a crime in jail. The informant then gets his/her sentence reduced. Prosecutors and police love these statements because they help lock in convictions when the evidence is week. According to the Los Angeles Times, California Governor Jerry Brown has a bill on his desk which would bar the admission of such testimony. The caveat is that the ban would only apply when there is no other evidence. If there is even one piece of flimsy corroborating evidence, the statement will come in. The bill is a start, but it doesn’t go far enough. Unfortunately, police and prosecutors are even fighting this minor reform claiming that it goes “too far.” For more information about the problems with jailhouse informant testimony, take a look at this 2003 American Bar Association article and this San Jose Mercury News article.

Mich. Sup. Ct. Weakens Castle Doctrine

Jury instructions are a jury’s “how too guide.” They tell the jurors what law to apply to given facts. Courts, however, make mistakes about jury instructions way too often. The Michigan Supreme Court in People v Richardson held that giving a duty to retreat instruction in a self-defense case where the Defendant did not have a duty to retreat wasn’t error. The Castle Doctrine says that an individual does not have to retreat in their own home or within the curtilage of that home. The curtilage is the outbound area directly attached to the home. In a modern urban or suburban house, this would mean the porch, front lawn, and backlawn. It could also include some out buildings. In the case of a farm, it would be the land that functioned as part of the residential complex, rather than the land that was farmed.

Donald Richardson and his wife had a poor relationship with his neighbors including the Abrams and their friends the Mores. In 2008, the Abrams boy and some of his friends started insulting the Defendant, while throwing rocks, and eggs at the Defendant’s home. Defendant’s wife responded in kind and hit the Abrams boy in the chest. Mrs. Abrams arrived at the Defendant’s home with a baseball bat and struck the door of the Richardson home. Mrs. Richardson went inside after a further altercation. Mrs. Abrams then threatened the Defendant soon to be joined by Dennis Dinwiddie. At this point, the Defendant pulled out three loaded hand guns and fired six times. Bothy Abrams and Dinwiddie were injured. Defendant was charged with assault with intent to murder.

Even though the Defendant had no duty to retreat, one instruction given by the Court told the jury that the jury could consider whether the Defendant retreated, CJI2d 7.16. A majority of the Court found that while the instruction was erroneous, the Court did not need to reverse the Defendant’s conviction. The Court stated that it viewed jury instructions as a whole. The Court found that the duty to retreat instruction was disclaimed by the language which subsequently said that “however“ there was duty to retreat. The Court further said that the error was not harmful because the prosecutor never argued the position to the jury.

Justice Markman dissented. He first pointed out that the Defendant was a law abiding citizen who lived in the same home for more than thirty-four years. Justice Markman pointed out that the “victims” were both under the influence of alcohol and drugs when they came to his front porch yielding a baseball bat. Defendant continuously maintained that he acted in self defense from the first day. Justice Markman found that the Court’s ruling was a repudiation of the Michigan Supreme Court’s ruling Pond v People -- a Michigan case adopted throughout the nation. Justice Markman stated that self-defense instructions must be clear and unambiguous. Justice Mary Beth Kelly concurred in Justice Markman’s dissent. The briefs on this case can be found
here.

Mich. Sup. Ct Rules that Jail Isn't Liable for Guard Rape of Inmate

Ms. Hamed was incarcerated in the Wayne County Jail on a child support violation. The booking officer said he would give her a better placement in exchange for sexual favors. Reversing twenty years of Michigan law to the contrary, the Michigan Supreme Court just ruled that employers are not responsible for harassment of their employees. Hamed v Wayne County, Supreme Court No. 139505. For more discussion on this case, take a look at Michigan Lawyer’s Weekly blog article on this ruling.

Mich. Sup. Ct Hands Down Major Confrontation Case

The Michigan Supreme Court just released its opinion in People v Fackelman. In a 5-2 opinion by Justice Markman, the Court ruled that a prosecutor’s use of a non-testifying expert's report in examination of testifying experts and in jury argument violated the Sixth Amendment.  Justice Young wrote a forty-one page dissent, joined by Justice Zahra.

Charles Fackelman’s teenaged son was killed in an auto accident. A year later, Fackelman drove to the house of Randy Krell, whom he blamed for his son’s death. Mr. Fackelman threatened Krell and another person with a gun. The Defendant fled, but was eventually found and committed to a hospital. While there, he was examined by a psychiatrist, Dr. Agha Shahid. In his report, Shahid diagnosed Fackelman as suffering from a single episode of major depression, without psychosis. Fackelman was charged with first-degree home invasion, two counts of felonious assault, and one count of felony-firearm. Mr. Fackelman asserted an insanity defense and called an expert witness who believed the Defendant was insane. The prosecutor also called an expert witness, who concluded that Fackelman was depressed but not legally insane. When the prosecutor examined the two expert witnesses at trial, he read significant portions of Shahid’s report, and he stressed Shahid’s opinions during his closing argument. Shahid did not testify at trial, and his report was not admitted into evidence. The jury returned a verdict of guilty but mentally ill. Fackelman appealed to the Court of Appeals, and asked that the court remand the case to the trial court for an evidentiary hearing concerning the prosecutor’s use of Shahid’s report, and whether defense counsel provided constitutionally ineffective representation. Among other things, Fackelman argued that the use of the report at trial violated his constitutional right to confront the witnesses against him, as described in Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004). In Crawford, the U.S. Supreme Court held that the Sixth Amendment’s Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross examination.” The Court of Appeals granted the motion to remand. After holding an evidentiary hearing, the trial court affirmed Fackelman’s convictions. The Court of Appeals then reviewed the trial court’s ruling, and affirmed Fackelman’s convictions in an unpublished per curiam opinion. The Court of Appeals held that the prosecutor properly used Shahid’s report to impeach the defense expert. While the prosecutor erred in using the report to bolster questioning of the prosecution’s expert, this error was harmless, the panel said, because there was ample other evidence to support the jury’s verdict. The appeals court also rejected Fackelman’s claim that his counsel provided constitutionally ineffective representation. Fackelman appeals. A five to two majority sided with the defense.
Congratulations to my friend John Minock on an impressive win. Click here for access to the party briefs.

CNN Questions Adam Walsh Act

An interesting story on today’s CNN.Com questions our current sex offender registry policy. CNN regards the Adam Walsh act as creating information overload which deemphasizes the core group of offenders which people should be watching. The article suggest that the biggest mistake the law made was to force states to do away with risk based assessments. The article focuses on the problems developing in Ohio and refers to it as ground zero.

Goodbye My Legal "Namesake"!

Yesterday Attorney Stuart G. Freedman of the law firm of Freedman, Herskovic, & Sapgnuolo died at his home in West Bloomfield.  He was 73 years old and a very well regarded medical practice attorney.  Since the day I was admitted to practice, our lives have intertwined.  My first office was in downtown around the corner from his.  I got a temporary respite from the confusion when I moved to Ann Arbor.  When I moved to Southfield, we were in the same office tower. 

Because of the name similarity, we were always getting each other's mail and phone calls.  Attorneys who knew the other Stuart always insisted on telling me stories about him. Over the years I learned quite a bit about him from his time at Central Detroit High School to information about his children. I even referred him a few medical malpractice cases.  He was a great guy and will be missed (despite the confusion). Information about his funeral can be found
here. As of this morning, I could not find a formal obituary.
The
The “Other”Stuart G. Freedman

Ohio Supreme Court Strikes Down Their Adam Walsh Act

Yesterday, a highly talented group of lawyers managed to get the Ohio Supreme Court to declare its Adam Walsh Act unconstitutional. State v Williams, 2011 Ohio 3374. This group includes some unlikely friends. Several rape crisis centers filed a Friend of the Court brief supporting the Defendant. Both the Cleveland Rape Crisis Center and the Texas Association Against Sexual Assault filed a brief supporting the Defendant. They noted that the Adam Walsh Law was a law spread by fear and did not help any valid public purpose. Their brief is a wealth of information about why these laws don’t work and people need to read it. Less surprisingly, the Ohio ACLU Fund filed a friend of the court brief arguing the matter under ex post facto principles.

While I have focused on the amicus, the
Office of the Ohio Public Defender also filed an excellent brief arguing why an offense driven classification scheme is punitive. The OOPD argued that the more rigid the classification system is, the more punitive it is. The Williams Court agreed. While Ohio Courts have upheld predecessor laws, the Court found that the new law passed the boundaries in becoming punitive.

The Court, however, based its decision on a provision contained in the Ohio Constitution (Ohio Const Art II, Sec. 28) which bars the passage of retroactive laws.

That provision provides:

“The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts; but may, by general laws, authorize courts to carry into effect, upon such terms as shall be just and equitable, the manifest intention of parties, and officers, by curing omissions, defects, and errors, in instruments and proceedings, arising out of their want of conformity with the laws of this state.”

The Court noted that the new law extended the duration of registration obligations, imposed a duty on an individual to register with multiple law enforcement agencies, and removed the ability to judicially challenge registration obligations. Because the Ohio Supreme Court based the ruling on the Ohio Constitution, there should be no further appeals in this matter.

After reading the ruling, I pulled down a copy of Michigan Compiled Laws and started thumbing through Section IV of the Michigan Constitution trying to find a similar provision. Section IV is our counterpart of Ohio Constitution Article II – it deals with limitations on legislative powers. I couldn’t find anything. I also couldn’t find anything in Michigan Constitution’s Article III dealing with the general operations of government. Section I of our Constitution contains a general ex post facto (“No bill of attainder, ex post facto law or law impairing the obligation of contract shall be enacted”) which might provide the basis for a similar challenge.

The ex post facto limitation has been applied fairly similarly in Michigan. There are also due process cases which contain some language supporting a challenge. In
Metro Homes v City of Warren the Court stated that retroactive legislation, which impairs vested rights is a due process violation. In 1992, the Michigan Court of Appeals reaffirmed this principle in Tax Payers United v Detroit. Like ex post facto challenges, the argument will boil down to whether the new law is punitive. In 1988, the Michigan Supreme Court stated in Romein v General Motors: "A remedial or procedural statute may operate retrospectively if it does not `take away vested rights.'" Cases interpreting Michigan’s old SORA law were as clear as mud on this point. The cases whether registration consequences were punitive or remedial were inconsistent. Believe it or not, this actually puts us ahead of Ohio which had uniformly upheld their old law. Notwithstanding this, the Ohio Supreme Court found that the increased reporting requirements, the broad public dissemination of large quantities of otherwise private information, and the expanded restrictions on former offenders pushed the law into the punitive category.

While we have a very conservative Court in Michigan, the Ohio decision gives me hope.