SCOTUS Hearings Argument Concerning Government's Large Scale Wiretapping

Lyle Denniston over at SCOTUS Blog has an interesting article on Monday’s oral arguments in Clapper v Amnesty International, Supreme Court No. 11-1025. Clapper is a challenge to the Government’s very broad wiretapping operations that they are carrying out in the name of terrorism prevention. The Government has been successfully defending these suits by arguing that the people bringing suit can’t prove they were the victims of illegal eavesdropping and therefore the suits shouldn’t go forward. In one case where the Government accidentally admitted the eavesdropping, they were able to claw evidence back stating the attorney could not use the evidence accidentally released. Al Haramain Islamic Foundation, Inc. v. U.S. Dept. of the Treasury, 660 F.3d 1019 (9th Cir. 2011). Here is another interesting article covering this case and the history of the line of litigation generally.

Chaidez Rescheduled for Oral Arguments on Thursday - Updated

After a two delay because of Hurricane Sandy, the U.S. Supreme Court heard oral arguments in Chaidez v United States, No. 11-820. In Chaidez, the Court will decide whether its 2010 ruling in Padilla v Kentucky, __ U.S. ___, 130 S.Ct. 1473 (2010) is retroactive. Padilla stated that counsel has a duty to inform a non-citizen client about deportation consequences of the plea. SCOTUS blog has a nice summary of the case.Update: Here is a link to the oral argument transcript. Here is a link to the audio transcript. I’ve read the transcript on this one and it is going to be close.

Great Drunk Driving Ruling from Canadian Supreme Court

Criminal defendants are frequently charged and convicted for drunk driving for sitting behind the wheel of a parked but running car trying to keep warm. The least sympathetic case happens when the Defendant’s car is stuck in a ditch with fresh tire tracks. Courts will infer the Defendant drove the car into the ditch while being drunk. A more sympathetic situation happens when the Defendant is using the vehicle as a means of temporary shelter and has no intention to move the vehicle.In R. v. Boudreault 2012 SCC 56, there was no question that the Defendant was too drunk to drive -- he asked a friend to call a cab to take him home for precisely this reason. His friend called twice and the cab didn’t come. At that point, the Defendant had to wait outside for the cab on a bitterly cold evening. According to the trial testimony, the temperature outside was -15C (5F). Eventually, the Defendant went to his trunk, started the truck, and waited for the cab. He made no attempt to move the vehicle. He eventually either passed out or fell asleep. When the cab finally showed, the cabbie didn’t try to wake the Defendant; he called the police. When the police arrived, they woke the Defendant and arrested him for drunk driving. The Quebec trial court dismissed the charges against the Defendant (2010 QCCQ 11443 (CanLII)) and the Crown appealed. The Quebec Court of Appeals reversed the dismissal stating that the Defendant had control and dominion over the vehicle (2011 QCCA 2071 (CanLII)). The opinion is in French. Click here for a Google translation of the ruling. The trial court made an express finding of fact that the Defendant had no intent to move the vehicle and did not move the vehicle. The Quebec Court of Appeals stated an intent to move or drive the car was not required.The Canadian Supreme Court disagreed. The Court accepted the trial court’s premise that the Defendant did not have an intent to move the car and that the statute needed to be interpreted in light of the statute’s purpose -- to keep drunk driver’s off the road and to protect the public. “

Parliament’s objective in enacting s. 253 of the Code was to prevent a risk of danger to public safety: Toews at p. 126, citing R. v. Price (1978), 40 C.C.C. (2d) 378 (N.B.C.A.), at p. 384. Accordingly, conduct that presents no such risk falls outside the intended reach of the offence.

Michigan Supreme Court Vacated In re TD - DiPiazza Lives

In People v DiPiazza, 286 Mich App 137, 778 NW2d 264 (2009), the Michigan Court of Appeals ruled that Michigan's sex offender registration can be unconstitutional as applied to certain individuals. Mr. DiPiazza was involved in the classic "Romeo and Juliet" relationship with his fifteen year old girl friend. He was given a Holmes Youthful Trainee Act (“HYTA”) by a Muskegon County judge. This meant that he did not have a criminal conviction. Notwithstanding the HYTA, he was placed on the sex offender registry. He later married his girl friend and they had children together. Because of his being listed on the sex offender registry, the Defendant became virtually unemployable. A Grand Rapids panel of the Court of Appeals found that SORA was cruel and unusual as applied.

In re TD, the Court of Appeals refused to apply the ruling to juveniles. These Defendants were convicted in the Family Division of the Washtenaw County Circuit Court of second degree criminal sexual conduct. Shortly before the Defendant turned eighteen, he petitioned for relief from the sex offender registry. The Washtenaw judge found that the Defendant did not meet the statutory criteria for removal, but found that DiPiazza made the registry unconstitutional punishment. The Washtenaw County Prosecutor’s Office appealed to this ruling to the Lansing Division of the Michigan Court of Appeals. That panel reversed the trial court’s ruling. They distinguished and somewhat criticized the DiPiazza ruling.

Because of a statutory change, the former juveniles in In re TD, however, were relieved from their registration obligations. Taking the case over at the Michigan Supreme Court level, the University of Michigan Juvenile Law Clinic successfully convinced the Michigan Supreme Court to set aside the Court of Appeals ruling.
Click here to see their order. This has created as a "reset" and returned the law to a pre-In re TD state. Congratulations to my friend Professor Kim Thomas of the University of Michigan Law School in Ann Arbor on a job well done!

Pennsylvania Governor Signs Senate Bill into Law

On Friday, the Michigan Court of Appeals ruled that individuals have the right to “open carry” a firearm to a public library. The ruling and various reference links are available under my extended analysis which you can see by clicking the “read more” link below. Read More...

SCOTUS to Decide Whether There is an "Actual Innocence" to AEDPA's Statute of Limitations

While the rest of Washington braces for Hurricane Sandy, the Supreme Court was in full session. They granted four petitions today including MaQuiggin v Perkins, Supreme Court No. 12-126. The petition comes from Michigan and is being pursued by Michigan Deputy Solicitor B. “Eric” Restuccia. Stay tuned.

Also relevant to the criminal practitioner is the Court’s cert. grant in Travino v Thaler dealing with the limits of the Court’s ruling last term in Martinez v Ryan. The
divided Fifth Circuit decision shows a pretty disturbing Brady suppression of evidence. The State hid a statement by completely exculpating the Defendant. I will post more on this case shortly.

Court of Appeals Extends Open Carry Rights

On Friday, the Michigan Court of Appeals ruled that individuals have the right to “open carry” a firearm to a public library. The ruling and various reference links are available under my extended analysis which you can see by clicking the “read more” link below. Read More...

Ohio Brings Rehabilitation Back into its Criminal Justice System

For too long, it was popular politic rhetoric that “they didn’t care how much it costs to lock up offenders.” Prisons had become a “sacred cow” of sorts. With the economic crash of 2007, this dialogue started changing. Last week NPR's Talk of the Nation had this lengthy segment on Ohio's plans to reduce recidivism. A bad economy is forcing states to learn that rehabilitative programming is not a “four letter word.”

Former Prosecutor Supports Relief to JLWOP Defendants

There was an interesting article by a former appellate prosecutor (now disciplinary counsel) Preston Shipp supporting California’s Senate Bill No. 9 giving relief of former juveniles serving life without a parole (JLWOP) for offenses committed while they were juvenile. Contrary to the rigid beliefs of many prosecutors, Mr. Shipp believes these individuals deserve a second chance.

NACDL Launches Former Offender Restoration Project

On November 24, 2012, NACDL launched a very valuable resource on the web which outlines the rights that are restored to former offenders after serving their sentence, together with a listing of many of the collateral consequences they still face. That resource is available here.

Ninth Circuit Invalidates Supervised Release Condition Barring Association With Defendant's Own Children

An important law review was just published on why courts need to be taking a new look at “shaken baby syndrome” based convictions based on the new evidence. The author of the article is Professor Keith Findley was is the director of the Wisconsin Innocence Project. This article is one of many recent developments which suggest that courts may finally have to reassess their position on this highly controversial diagnosis. Read More...

Important Law Review: Why Courts Have to Take a New Look at Shaken Baby Cases

An important law review was just published on why courts need to be taking a new look at “shaken baby syndrome” based convictions based on the new evidence. The author of the article is Professor Keith Findley was is the director of the Wisconsin Innocence Project. This article is one of many recent developments which suggest that courts may finally have to reassess their position on this highly controversial diagnosis. Read More...

Victim/Offender Reconciliation & the Death Penalty

This weekend’s NPR had a very interesting “Humankind” program featuring David Kazinski and Gary Wright. David Kazinski is the brother of the Unabomber Theodore Kazinski and ultimately turned his brother into the authorities. Gary Wright is the victim of the Unabomber. Gary almost died and was permanently injured by the Unabomber. David and Gary have come together and have a unique spin on the criminal justice system including on how the healing needs to take place. Too many crime victims believe that vengeance has to their overarching mantra. Prosecutors have a systemic interest in keeping victim injuries and hurt accessible It is in the State’s interest to be able to pull these people out at various hearings to insure that the offender remains incarcerated. This was fascinating piece.

Michigan Defense Counsel Reform Moves Forward

There is an old lawyer’s joke that the “two things you never want to see how they are made are law and sausages.” The joke applies mostly to legislation (rather than litigation) where there is horse trading to get legislation through and get opponents to back down. HB5804 is the prime example. Most parties (prosecutors, defense counsel, and courts) agree that our current system is “broke,” but can’t agree on the fix or who is going to pay for the fix.

HB5804 is designed to increase the quality of representation, but has had to yield to various needs. Just as the bill was on the verging of passing, the Michigan Attorney General’s Office attempted to derail the bill. They argued that because most ineffective assistance of counsel challenges fail, there is no problem. The Sixth Amendment Center has a
nice piece on the bill, the Attorney General’s 11th hour efforts to derail this bipartisan effort and what is wrong with their position.

Canada Gets Tough on Immigrants Whether they Need to or Not

An interesting article appeared in the Toronto Post about Canada’s new get tough on immigrant policies being pushed by the Harper government. Crime rates are way down, but it is easy to campaign on people’s fear of crime. Sounds like Prime Minister Harper is taking a cue from his neighbor to the south (or north if you are a Detroiter).

Great Computer Search Decision from Canada

Hats off to the Canadian Supreme Court for a very important ruling.. On the 19th, the Court held in R v Cole, 2012 SCC 53 that an individual has a heightened privacy interest in their computers. They spoke to the personal information we store on our machines and then found that an individual who brings his computer in for repair maintains a privacy interest in the computer’s contents. The police may not “piggyback” on the limited release of the computer to the technician for service. Canadian Supreme Court rulings may be cited by U.S. Courts for their advisory value. Trans-Tec Asia v M/V Harmony Container, 518 F3d 1120 (CA 9 2008) (Canadian ruling is “instructive”). The ruling cites to many U.S. decisions and will therefore have stronger advisory value than most foreign rulings.

Pennsylvania Legislature Passes Miller Fix - Updated

According to this AP article, the Pennsylvania Legislature has just passed this Miller fix. Pennsylvania Senate Bill 850. For first degree murder, 15-17 year olds would get either a mandatory 35 years to life sentence or a LWOP sentence; those under 15 years old would get either a mandatory 25 years to life or LWOP sentence. For second degree murder, 15-17 year olds would get a mandatory 30 years to life sentence; those under 15 would get 20 years to life sentence. Here is another interesting summary. Here is a link to the official history on the bill. Here is a link to the Senate Fiscal analysis.It is important to stress that higher sentences are possible and it is possible for a judge to still impose a non-parolable life sentences (for first degree murder defendants only) based on a specific finding of facts.

Pennsylvania has three degrees of murder. Murder in the first degree carried natural life or the death penalty. Second degree murder carried a mandatory life without the possibility of parole. Third degree murder is subject to sentencing under Pennsylvania’s Sentencing Guidelines. Pennsylvania Attorney David Lampman has a
nice summary of Pennsylvania’s homicide laws.

Update: I just found out that the Pennsylvania Coalition for Fair Sentencing of Youth and its parent national organization have serious problems with this law. They consider the bill a hasty piece of legislation that has been rushed through. Pennsylvania Governor Corbetthas until October 27th to sign or veto the bill. Under Pennsylvania law, the Governor could also line-item veto the JLWOP provisions from the legislation. Stay tuned.

The law is not retroactive to cases that were finalized before the date that Miller was decided (June 24, 2012).

Attack on the Michigan Parole Board Continues

This is an update and consolidation of several Miller stories posted over the last several days. Last June the United States Supreme Court struck down a mandatory life without a parole sentence given to juveniles who kill. Michigan is the state with second largest group of juveniles serving these JLWOP (“juvenile life without parole”) sentences; Pennsylvania will be the first comprehensive decision. Florida has ruled that Miller is not retroactive in an unpublished decision where the defendant didn’t have counsel and missed key arguments. Louisiana has ruled that Miller is retroactive, but they did so in a summary order without much reasoning. We will be arguing later today that Miller is retroactive in what should be the second comprehensive decision. Read More...

Hamden Conviction Reversed - Military Commission for 9/11 Suspects Thrown Into Doubt

SCOTUS Blog has an interesting story about the DC Circuit’s reversal of terror suspect Salim Ahmed Hamdan’s conviction by a military conviction. The government claimed that Mr. Hamden was Osama Bin Ladin’s driver. The Court’s ruling was based on ex post facto concerns. The Court took issue with the creation of the offense (“material support of terrorism”) after the fact. The Court said it was an ex post facto violation. You can read more about the charge here. The factual court decision can be downloaded here.

Miller v Alabama Developments - Updated and Remixed

This is an update and consolidation of several Miller stories posted over the last several days. Last June the United States Supreme Court struck down a mandatory life without a parole sentence given to juveniles who kill. Michigan is the state with second largest group of juveniles serving these JLWOP (“juvenile life without parole”) sentences; Pennsylvania will be the first comprehensive decision. Florida has ruled that Miller is not retroactive in an unpublished decision where the defendant didn’t have counsel and missed key arguments. Louisiana has ruled that Miller is retroactive, but they did so in a summary order without much reasoning. We will be arguing later today that Miller is retroactive in what should be the second comprehensive decision. Read More...

Michigan Supreme Court Hears Orals on McQueen Case on Medical Marijuana - Updated With Video Links

This is an updated version of my story about the October 11th oral arguments on two important medical marijuana cases.
On October 11th, the Michigan Supreme Court will oral arguments on the McQueen case. The issue will focus on whether individuals can act as brokers between patients and caregivers.
Click here for Ms. Chartier’s brief.
The Court will also hear oral arguments on People v Blysma. Blysma is another medical marijuana case. In Blysma the question is whether caregivers can share growing facilities and what protection they need to build into the growing facility to protect the respective caregivers from each other.
Update: Click here for more details on this argument. Click here for the unedited video footage on McQueen. Click here for the unedited video footage on Blysma.

Petition to Watch: Ryan v James and Whether the Court Will Extend Harrington & Cullen - Updated

Many US citizens have been turned back for having a single drunk driving conviction. Under Canadian law, a drunk driving is consider an “hybrid offense” and can be prosecuted as a felony (“indictable”) offense. This has meant that an American with a comparable offense was deemed inadmissible to Canada (but could get waivers after jumping through hoops and paying fees). Recently, the Canadian Border Services Agency (“CBSA”) released its Operational Bulletin 389. This provides for streamlined (and free) waivers to individuals who have one criminal conviction (not a sex or child pornography offense) where no jail or prison was imposed. Read More...

Good 60 Minutes on PTSD Treatment Courts

Drug courts have become popular as an alternative sentencing model which focuses on treatment. Sunday’s 60 Minutes had a great story on how one Texas Court has extended this model to PTSD Court for Veterans who commit an offense. Individuals who commit this program avoid a criminal record. There are now 41 Veterans Courts operating in 27 states based on this. Click here for summary of the programs from the Veteran’s Administration.

No Clear Winner in Yesterday's Debate: (No, I Don't Mean Biden & Ryan)

Yesterday, the Michigan Supreme Court was hearing oral arguments on People v McQueen and People v Blysma dealing with the contours of Michigan’s Medical Marijuana law. So far, it sounds like the “debate” between Mary Chartier (and Bruce Block) and the Michigan Attorney General’s Office was a coin toss. The only report out so far sounds like it was close. At least no one is being marked down incivility. Stay tuned.

Canada's CBSA Liberalizes Waiver Procedure for U.S. Visitors With a Single Drunk Driving or Other Minor Conviction

Many US citizens have been turned back for having a single drunk driving conviction. Under Canadian law, a drunk driving is consider an “hybrid offense” and can be prosecuted as a felony (“indictable”) offense. This has meant that an American with a comparable offense was deemed inadmissible to Canada (but could get waivers after jumping through hoops and paying fees). Recently, the Canadian Border Services Agency (“CBSA”) released its Operational Bulletin 389. This provides for streamlined (and free) waivers to individuals who have one criminal conviction (not a sex or child pornography offense) where no jail or prison was imposed. Read More...

The State of Michigan Crime Labs

On Wednesday, the high court is deciding whether a Georgia man should be deported to his native Jamaica for having 1.4 grams of marijuana and sharing it without renumeration (e.g. sharing a joint with a friend). Read More...

Mich Legislature Considers New Juvenile Expungment Bill

The Michigan House has before it House Bill 5600 which will liberalize the standards for granting expungments for juveniles. The Bill will expand the number of adjudications they can have and remove some of the statutory prohibitions on expungment. This a great thing. As we learn more about the juvenile brain, it is clear that they are not mini-adults and are capable of change. As colleges and other institutions have started background checking applicants, our old path was forcing juveniles down the wrong path and towards a “cliff.” HB5600 goes a long way to fixing this problem. Here is a link to our current expungment law.

Michigan Supreme Court to Hear Ineffective Asssistance of Counsel Challenge

Today, the Michigan Supreme Court will hear oral arguments in People v Trakhtenberg, Supreme Court No. 143386. While this in many ways in a garden variety ineffective assistance of counsel challenge -- Ms. Frankel alleges that the defense counsel was ineffective in variety of ways. She is arguing that Mr. Trakhtenberg’s attorney failed to properly investigate the case or impeach a witness a witness (Liliya Tetarly) with evidence of bias.
The interesting question in this appeal is whether losing the civil suit somehow precludes Mr. Trakhtenberg from pursuing his criminal ineffective assistance of counsel claim. Ms. Frankel is trying to overturn fairly established law in this regard. Here is link to
her brief. Here is a link to the prosecutor’s brief.

"Who's Your Daddy:" Michigan Supreme Court Decide Whether Presumption Of Paternity Controls Over DNA Test

Also on today’s agenda is People v Zajackowski, Supreme Court No. 143736. The Defendant was convicted of first degree of CSC for sexually assaulting his half-sister. The wrinkle comes in that DNA tests show that the Defendant and the complainant are not related. The Defendant’s birth certificate shows a common father and he was born during a union between his admitted mother and this man. The common law had very strict presumptions of legitimacy for most purposes. The question is whether the Defendant can challenge the claim about who is his father is in the CSC case. Here is a link to the Defendant’s brief, the Family Law Section’s brief, and the Prosecutor’s brief.

US Supreme Court to Decide Major Immigration Question - Updated

On Wednesday, the high court is deciding whether a Georgia man should be deported to his native Jamaica for having 1.4 grams of marijuana and sharing it without renumeration (e.g. sharing a joint with a friend). Read More...

Wayne County Docket Sheets Available Online

For the non-attorneys out there, this may seem like a small thing, but I’m delighted that Wayne County’s civil and criminal records are available online here. This will save the attorneys a great deal of time and allow us to stay on top of things better. Because Wayne County’s court system is so large, things go wrong in a way they don’t in small courts. The ability to monitor my client’s cases online will be a great help.

Start Objecting Again: Guidelines Challenges Are Back in Play

A decade ago, we were objecting to the Michigan Sentencing Guidelines (our state’s presumptive sentencing) scheme arguing that it violated the Defendant’s right to a jury trial. Following the Michigan Supreme Court’s 2006 ruling in People v. Drohan, 475 Mich. 140, 159–164; 715 NW2d 778 (2006), these challenges largely died. The United States Supreme Court has agreed to hear a case which again put the guidelines at risk. Alleyne v. United States, Supreme Court No. 11-9335. Counsel should again start demanding jury trials on guideline issues and objecting to the guidelines being use as anything beyond advisory guidelines. Read More...

Four Days!: Supreme Court Denies Leave in Armijo in Record Time!

In late August, our office won a 6.500 appeal that we had been working on for years. In People v Armijo, the Court of Appeals found that the Defendant was denied his right to effective assistance of trial and appellate counsel when neither attorney investigated his defense. We believe that our client is innocent and are delighted with the ruling. It is a must read for anyone working a 6.500 motion because it shows that the deference afforded to trial counsel or appellate counsel’s strategic decision does not require blindness. The Court took a hard look at the proffered strategic decision.The prosecutor was upset with the ruling and appealed the ruling to the Michigan Supreme Court. It took them only four days to turn down the prosecutor’s request. I’ve never seen anything like it. The Court didn’t even give us time to file an answer before turning it down.

CoA to Hear Miller Retroactivity Case

In People v Carp, the Michigan Court of Appeals agreed to hear whether the U.S. Supreme Court’s ruling in Miller v Alabama is retroactive. Miller struck down mandatory juvenile life without parole sentences for juveniles convicted of murder. Previously, the Court struck down the same punishment as applied to non-murderers.The Court said that life without should rarely be given. One of the two cases that the Court heard was from Arkansas and called Jackson v Hobbs. Since Jackson had already lost his appeal, yet the Supreme Court gave Mr. Jackson the benefit of the ruling, a very good argument exists that Miller is fully retroactive. The Carp pleadings are available here.