President Obama is one of the Most Stingy Presidents When it Comes to Pardons - Updated and Remixed

I am voting for President Obama on Tuesday, but his pardon statistics have not been impressive. According to pardonpower.com (the leading blog on pardons), President Obama has been very stingy when it comes to pardons and clemency. Propublica is running an extensive series of articles on the pardon process and what is wrong with it.

In Michigan, executive clemency has been rarely granted. Between 1969 and present, only 58 pardons have been granted. I find the number a disgrace, but have not been able to figure out why everyone has reset the clock in 1969.

Clearly, Michigan used to be more generous with pardons. In doing some research, I found this turn of the
last century book on pardons granted by Michigan Governor Hazen S. Pingree between 1897 and 1900. He signed more pardons than Governors Milliken, Blanchard, Engler, Granholm, and Snyders combined! It is even more interesting because Governor Pingree gave a long statement of reasons in support of these pardons.

One of the more interesting federal applications was from
Serena Nunn. Ms. Nunn was convicted of a non-violent drug offense at age 19. She subsequently had her sentenced commuted by President Clinton. She attended Arizona State University and graduated. She then went to the University of Michigan Law School. She needs a pardon to be admitted to the practice of law in Georgia.

Update #1 What confuses me is that the National Conference of Bar Examiners says that a felony should not bar her admission. Further, the Georgia Supreme Court ruled in September of 2011 that an applicant with a felony conviction can be admitted if he/she proves by “clear and convincing evidence” that he/she has been rehabilitated. In re Yunker, 289 Ga 636; 715 SE2d 92 (2011). See also In re Payne, 289 Ga. 746, 715 S.E.2d 139 (2011),
Update #2 According to this FAMM press release, Ms. Nunn apparently was approved to be an attorney and will be sworn in.

Updated #3. Here is an interesting NPR article on President Obama and pardons.

Illinois Court of Appeals Says Miller is Retroactive

The Illinois Court of Appeals just issued a 29 page opinion saying that Miller v Alabama is fully retroactive. This directly conflicts with the Michigan Court of Appeals ruling from two weeks ago to the contrary in People v Carp. The Court said that the ruling was a watershed ruling.
Williams - Miller retroactivty

NYT: Law of Cell Phone Searches is a Mess!

There was an interesting article in today’s New York Times about the horrible mess that the law of cellphone searches is currently in. The problem is that courts are moving by analogy to prior technology (or brick and mortar items) and none of these items are perfectly applicable. Our cell phones are more than the old Ma Bell Rotary Dial phone. They are not like the standard items people leave laying around their car or the wallet which can be inventoried in a police booking. They contain deep personal information and should be regarded as having special protection under our Forth Amendment.

Court of Appeals Affirms Carp

Today the Michigan Court of Appeals upheld People v Carp. At issue was was whether the Supreme Court’s ruling in Miller v Alabama was retroactive. If Miller was retroactive, the Court also had to figure out what the appropriate remedy. The Court found that Miller was not fully retroactive and did not apply to cases that were final when Miller was decided. The Court stated that until legislation is passed to fix the Miller problem in Michigan, the remedy was to reduce individual sentences to life with the possibility of parole. The pleadings are available here.

Meanwhile the Legislature has taken action to try and fix things as well.
According to this news article, Michigan has proposed a new bipartisan package of bills on JLWOP in response to Miller. News coverage is here: . Here a legislative summary.

California Court of Appeals Overturns Social Media Ban

Michigan needs to follow the lead of states like Florida and recognize the title “appellate specialist.” Until they do, individuals who devote their career to appeals are going to need to turn to third-party organizations to obtain objective proof of their skills. When this happens, the attorney is effectively buying a law suit or a disciplinary proceeding over what is effectively commercial free speech.
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Supreme Court to Decide Sufficiency of the Evidence in Larceny Case

The Michigan Supreme Court also granted leave to appeal to the Oakland County Prosecutor’s Office to determine whether shoplifting of a $58 bottle of perfume can be charged as a tent year felony of larceny from a person. People v. Smith-Anthony, Supreme Court No. 145371. My article explains why I believe this is wrong. Read More...

Michigan Supreme Court Hears Important Child Sexual Abuse Hearsay Issue

The Michigan Supreme Court has agreed to hear the Bay County Prosecutor’s appeal in People v. Burns, Supreme Court No. 145604 Bay County is attempting to bring in child hearsay statements to the forensic examiner claiming that the Defendant’s request for the complainant not to tell anyone about the offense constitutes “wrongful conduct” rendering the witness unavailable. Read More...

Michigan Needs to Recognize the Title “Appellate Specialist”

Michigan needs to follow the lead of states like Florida and recognize the title “appellate specialist.” Until they do, individuals who devote their career to appeals are going to need to turn to third-party organizations to obtain objective proof of their skills. When this happens, the attorney is effectively buying a law suit or a disciplinary proceeding over what is effectively commercial free speech.
Read More...

Business Leader Supports "Getting Smart on Crime"

This happened earlier this year, but I just saw this testimony to the Michigan Legislature from a conservative business leader recognizing what our side has always known -- excessive incarceration is an exceptionally expensive waste of tax payer money. Even though prosecutors still don’t seem to get it, rehabilitation works and is cheaper than the locking them away and tossing away the key, I’m glad to see that the business community is starting to see it.

Thankfully, this does not seem to be the case in this election. While there are general references to “protecting Michigan families,” the economy rather than getting tough on crime seems to be the main theme of this election.

Court of Appeals Holds Former Mayor Kilpatrick to His Words

Former Detroit Mayor Kwame Kilpatrick wrote a book while on parole. Wayne County Circuit Judge David Groner ordered the proceeds impounded. Mayor Kilpatrick wanted to challenge the constitutionality of the statute permitting the seizing these proceeds. Unfortunately, Mayor Kilpatrick may have shot himself in the foot. The Court of Appeals stated that his structuring to avoid a restitution obligation together with his statements to the press may have barred the issue. Read the full story for more details. Read More...

“All I Want is a Time Cut:” Strategies for Getting a Sentence Reduction in Michigan

One of the most frequent calls I get is from family members who think they are sounding reasonable and saying “all I want is a time cut.” I understand that one of the things the family is trying to say is that they not contesting guilt. The problem is that Michigan has limited options for sentencing reductions. I wish it was that easy. The full blog article is my long response.
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Aggression for Aggression's Sake Does Not Make Someone a Good Lawyer

One of the most frequent calls I get is from family members who think they are sounding reasonable and saying “all I want is a time cut.” I understand that one of the things the family is trying to say is that they not contesting guilt. The problem is that Michigan has limited options for sentencing reductions. I wish it was that easy. The full blog article is my long response.
Read More...

New York Court of Appeals Says Judge Cannot Instruct on Lesser Included Offense Over Defense Objection

On October 23, 2012, New York’s highest court held that defense counsel has the ultimate authority in making the strategic decision whether the request lesser-included-offense jury instructions, and that the trial judge’s decision not to give lesser include offense instructions that defense counsel requested because the defendant objected was error requiring a new trial.  People v. Colville, No. 161, 2012 NY Slip Op 07047.  The appellate court refused to find the error harmless. The Court held that "that the decision whether to seek a jury charge on lesser-included offenses is a matter of strategy and tactics which ultimately rests with defense counsel." Thus, the Court held it was reversible error for the trial court to refuse to charge lesser offenses as requested by counsel " because defendant objected." The majority, noting that this was the near unanimous position of other courts, rejected the District Attorney's argument that the decision as to whether to request a lesser offense was a fundamental one to be made by the defendant, such as the decision as to whether to enter a guilty plea , or to request consideration of an affirmative defense.
 

Cheap Shot: Attacking a Lawyer for Her Client's Crimes

A colleague I like very much (Bridget McCormack) is running for judge. She is being attacked because she volunteered to consult on the Gittmo cases. I find it deeply offensive. I can't even believe that people would honestly think that you should vote against lawyer because of who our clients are. I've had close friends give up years of their life volunteering to defend war crime trials for little or no money just to make sure that the trial is fair. If Colleen O'Brien (Bridget's opponent) is as committed to the rule of law as her advertising claims,she'd be out there disavowing this attack ad.

I joined the ACLU when they defended the rights of Nazis to march in Skokie. I'm Jewish. My counsel took six months out of his life to take a court appointed cases defending folks who the FBI claimed were planning on overthrowing the US government (the Hutari militia). The judge found the case unfounded and
acquitted his client. My old mentor James C. Thomas defended a mentally ill man the Government claimed was a terrorist. The Government dropped charges and fired the Assistant United States Attorney who was caught hiding evidence showing this man was innocent.

The Judge Judys of the world are not the "tough judges." They are the bullies. The lawyer who risks having his house fire bombed to represent the unpopular individual is like this pathetic woman's soldier-son. They are carrying out their vow to uphold the constitution. They should be applauded, not condemned.
The tragedy is the type of person who extends themselves in this way is precisely the type of person who would make the best judge. They are driven to these acts for concern for the system, rather than personal gain. For example, I'm reasonably good friends with Judy Clarke, the attorney who defended Timothy McVeigh (Oklahoma City), Susan Smith (accused of drowning her two children in North Carolina), Ted Kaczynski (the uni-bomber) and Jared Loughner (the nut job who shot Gabrielle Giffords). She is one of the most decent persons I know, a retired public defender, and the exact opposite of "money grubbing." She is certainly not in favor of blowing up people, courthouses, shooting elected officials, or drowning children. These individuals are the type of person who will rule the way the case law takes them even if it is politically unpopular. It is a shame if this type of attack strategy drives the people most capable of being the best judges out of the running.

A friend of mine reminded me that our second President of the United States (John Adams) defended British Regulars accused of killing civilians during the Boston Massacre. This is what lawyers do. I know all the jokes made about us, but most of us work twice as hard as the average joe to earn an ordinary pay check. We are not Geoff Feiger, we are folks who are slugging it out to make sure the system is fair. The more society hates our client, the bigger the chance that people will cut corners to get a conviction. Many of the folks arrested on suspicion of terrorism are ultimately freed because even the Government isn't sure they are guilty. As Shakespeare recognized , if you want to destroy a society “
first kill all the lawyers."
-PAXP-deijE

Nebraska Federal Court Strikes Down Ban on Sex Offender on Social Media

The Volokh Conspiracy blog’s David Post has a nice post on a decision of a Federal Court’s decision to strike down a Nebraska law banning sex offenders from using social media services such as Facebook. The ruling can be accessed here. Counsel’s brief can be found here.

Are Prosecutor's Shooting Themselves in the Foot by Pushing 'Change of Appearance' Doctrine.

Prosecutors are pushing for a doctrine of law which is going to help the defense more than it is going to help the prosecution. The doctrine is called the “change in appearance” doctrine. If a criminal defendant comes to court in a suit with a fresh haircut, the prosecutors want to argue that this shows guilty knowledge if the Defendant normally doesn’t wear a suit and normally has a working class appearance. The doctrine originally was applied where the Defendant made severe changes in their appearance, now the standard clean up that someone does for a job interview is now sinister. In Harris v State, DC Circuit No. 08-CF-1405 (2012), the Defendant simply dressed up and wore glasses (which normally didn’t wear) to Court. The Prosecutor didn’t simply argue that the Defendant was trying to avoid identification. The Defendant was a regular customer of the robbed restaurant and they knew him on sight. The prosecutor argued that the Defendant softened his appearance to make him look less threatening to the jury.

The sad thing is that they are so focused on winning individual cases that they have stopped thinking like institutional litigators. Everyone cleans themselves up for trial. People who never wear suits wear a suit to court. Woman wear more conservative makeup and jewelry to court. Everyone wants to put their best foot forward. Prosecutors have recently sought the right to argue this change of appearance to the jury. When the Defendant gets a haircut, upgrades his glasses, etc. prosecutors have been making the argument that they should be able to tell the jury that this isn't what the Defendant looks like. They've been winning with this argument. My question is how will they stop up from making the same argument when they do that with their complainants. I've regularly seen complainants (child and adult) dress provocatively in the real world and show up in court looking like they were regulars on the church choir. I can't wait to use the prosecutor's new doctrine against them. It should be interesting.