Federal Court Grants Writ in Aceval Police Perjury Case

People v Alex Aceval is one of the strangest cases I have ever worked on. There is no disputed that the State presented perjured testimony at my client’s trial. The judge granted the prosecutor’s secret motion for permission to present this testimony and had a court reporter transcribe the motion. The prosecutor was disbarred for it. The case wrecked the judicial career of the judge who was forced into retirement with a blot on what would have been an otherwise distinguished career. Most of the police were convicted as well.

Still, the State of Michigan steadfastly argued that Mr. Aceval’s conviction was not tarnished by the perjury. Recently, Judge Tarnow disagreed. Calling the Defendant’s trial a sham the judge said that the charges should have been dismissed with prejudice. Earlier this week, Mr. Aceval was released a free man. The state has not decided whether it will appeal.

Sixth Circuit Rules that Michigan's Parole Guidelines Don't Create a Liberty Interest

A number of years ago, the Michigan Legislature adopted parole guidelines to attempt to reduce the disparity between the individuals who received parole and those who didn’t. The Guidelines were originally part of the legislation which created our sentencing guidelines. They were separated at some point and were passed separately. The statute creates three tiers of offenders: (1) those with a low probability of parole; (2) those with a high probability of parole; and, (3) hose with an average probability of a parole.

Those with individuals with an average probability of parole had no statutory preference for or against a parole. Those individuals who had a high and low probabilities of parole either had a statutory presumption in favor of or against a parole. The legislature copied the language for parole standards from our sentencing guidelines and stated that departures from the guidelines should only be for “substantial and compelling” reasons. Case law interpreting the sentencing guidelines said that this was a high standard and imposed a requirement that “substantial and compelling” had to be objectively verifiable.

On its face, this would seem that Michigan had created a liberty interest in our parole scheme. Ordinarily there is no right to a parole which is protected by the due process clause to the United States Constitution. The United States Supreme Court in
Greenholtz v Nebraska Penal Complex found that a Nebraska scheme which found that a Nebraska law provided that a parole should be granted unless certain objective factors were present created a liberty interest. Michigan’s law facially seemed to match this criteria, but Michigan Courts had constantly interpreted the law to the contrary. On September 20, 2011 in Crump v Lafler the Sixth Circuit appeared to drive a stake through the heart of the argument. The Court stated that historically both federal courts and Michigan courts have rejected the stricter interpretation of MIchigan law and concluded that Michigan’s scheme only created a “hope” of parole.

Judge Cole wrote a nice dissent arguing to the contrary. HIs approach matches what the Legislature intended, but the ruling may be a lone voice in the wind. Presumably the Petitioner will be seeking en band rehearing and/or certiorari. Stay tuned.

Amanda Knox: "Justice Served" or "The Italian Job?"

Amanda Knox, the Seattle college student, was convicted of murdering her British roommate in an Italian courtroom. This case doesn’t begin to describe the word “high profile.” The media circus surrounding this prosecution makes the first O.J. Simpson trial seem tame in comparison. The question in my mind is whether the Italy hybrid jury (six laypersons plus two judges) reached the verdict correct. As an attorney who litigates many wrongful conviction cases, I have serious doubts about this case. Read More...

Michigan Supreme Court Adopts New Disqualification Rules: Is the Glass Half Empty or Full?

A new rule promulgated by the Michigan Supreme Court allows justices to disqualify each other from cases. Previously each justice decided whether he or she was unbiased and rarely gave an explanation for the decision. The new rule has produced extraordinary reaction from the bench. Read More...

British Sex Offenders Win Human Rights Claim

COA Sets Forth the Due Process Defendant Must Be Given When County Seeks Reimbursement for Court Appointed Counsel

Overwhelmingly, criminal defendants are represented by court appointed counsel. Many counties have sought reimbursement for such fees. Three years ago, the Michigan Legislature codified this practice with MCL 769.1k which provided that after conviction, the Court may make the Defendant pay for any costs or the expenses associated with the defendant’s legal representation.

In
People v Trapp, Court of Appeals No. 282662, the Court of Appeals answered the question about what a court is supposed to do when the Defendant claims that he does not have the means to pay this fee.

In Trapp, on request the Court ruled that the Court must look at the Defendant’s ability to pay. Unfortunately, the Court ruled in the last paragraph that a hearing was not required and the Court could rely on an updated presentence report.

Trapp is disturbing because most countries do not disclose the presentence report until moments before sentencing. Trapp is yet another reason why Michigan should adopt the federal practice of providing the reports to counsel ten days before sentencing and allowing counsel the opportunity to file written objections to the reports.

The other item which went undiscussed in Trapp is the fact that the parties were talking about $300. It will probably costs Berrien County thousands to collect this paltry sum.

Nevada Federal District Court Declares Adam Walsh Act Unconstitutional

As was noted by the by a Las Vegas New Channel, US District Judge Mahan has declared unconstitutional Nevada’s Adam Walsh Act. In order to gain federal grant funding, Nevada modified its registration laws to require numerous individuals previously thought not to be a risk of reoffending to register. Last Friday, a Federal District Judge found this law violated due process.
President Bush signed the federal Adam Walsh Act in 2006 to expand the National Sex Offender Registry and to create national standards for ranking sex offenders. Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (2006). The law established three tiers, rankings based on the crime the offender committed.
Section 111 of the Adam Walsh Act specifically sets out expanded definitions that include registration and notification which were considerably broader than the versions previously used in Nevada. Under this section, a sex offender is “an individual who was convicted of a sex offense.” A sex offense is a criminal offense that has an “element involving a sexual act or sexual contact with another.”
The new provisions physically resemble the three tier system previously used in Nevada, but the federal law is considerably more exapnsive. A tier three sex offender is punishable by more than one year in prison. The individual must have attempted, conspired, or actually committed a sexual abuse or aggravated sexual abuse, an abusive sexual contact against a minor who has not attained the age of thirteen years, or a more severe offense. A tier three offense may also be committed if the offense involves kidnapping of a minor that is not one's own child or if the offense occurs after the offender is a tier two sex offender.
Second tier sex offenders are those who do not fit into tier three, but may still be punishable by more than one year in prison. Tier two includes offenses against a minor, or conspiracy to commit such offenses against a minor, such as: (1) sex trafficking; (2) coercion and enticement; (3) transportation with the intent to engage in criminal sexual activity; and (4) abusive sexual conduct. A tier two offense may also involve: (1) use of a minor in a sexual performance; (2) solicitation of a minor to practice prostitution; or (3) production or distribution of child pornography. [FN72] An offense can also qualify as a tier two if any of these offenses occur after the offender is already a tier one offender. The first tier includes any sex offender who does not squarely fit into categories two or three. Tier one offenders are considered at low risk to reoffend and are not seen as dangerous.
The expansion of the sex offense definition includes any “[1] criminal offense that has an element involving a sexual act or sexual contact with another; [and 2] a criminal offense that is a specified offense against a minor ....” An offense that is consensual is not a sex offense unless the adult victim is under the custodial care of the offender, the victim is not an adult and the offender is more than four years older than the victim, or the victim is under the age of thirteen.
A juvenile is considered to be “convicted” of a sex offense when the juvenile “is 14 years of age or older at the time of the offense and the offense adjudicated was comparable to or more severe than aggravated sexual abuse ... or was an attempt or conspiracy to commit such an offense.”
Nevada used a scheme that required only the most dangerous offenders to appear on the public registry. Under the old law, you could only see offenders ranked two or three. After Adam Walsh, virtually all offenders were on the public registry. The Court found that this retrospective change in the law violated due process.

Gitmo Prisoners Seek Sanctions

According to SCOTUS blog, lawyers for Guantanamo Bay detainees on Tuesday asked a U.S. District judge to impose severe sanctions for delays that the attorneys said were of the government’s own making — delays that are already slowing down court review of military detentions. Even as that maneuver unfolded, the government asked another District judge to give it more time and new filing deadlines in other detainee cases — a move likely to meet the same resistance.

Ingham County Circuit Court Again Dismisses Mercer Case

In 2006, Dr. Charles William Mercer, Jr. was charged with the 1968 murder of his wife. There were no witnesses to the crime. In 1968 through 1970, Dr. Mercer was investigated and was cleared. Top medical professionals of the day believed that the cause of death was fully consistent with a form of polio (bulpar polio) that was known to be present in the Lansing area at the time. The case laid dormant for many years until an Ingham County cold case squad reinvestigated the case and concluded that the cause of death was homicide. This was not a case where there where new technology gave the prosecution any “smoking guns.” The case largely hinged on state expert testimony stating that the deceased had an unusually high concentration of a pain killer which a person with polio would have used at the time.

In the nearly forty years since the death, significant evidence had been lost, including the evidence from the exculpatory medical examinations. In a somewhat conflicting ruling, the District Court excluded the prosecution’s expert testimony concerning the cause of death, but still bound Dr. Mercer over for trial. The Ingham County Circuit Court overturned the bind over ruling finding that too much evidence had been lost over the intervening years for Dr. Mercer to have a fair trial. The Court of Appeals reinstated Dr. Mercer’s charges stating that the prosecution had not acted with bad faith in delaying the prosecution.

The Michigan Supreme Court agreed to hear the case to determine whether the prosecution was required to have bad faith where this much evidence had been lost or destroyed. My office filed a friend of the court brief on behalf of the Criminal Defense Attorneys of Michigan arguing that Michigan should follow the decisions of the four Federal Appellate Courts and numerous state appellate courts which did not require the defense to prove a deliberate prosecutorial intent to harm the defense.

On July 26, 2008, the Supreme Court issued an opinion sending the case back to the Ingham County Circuit Court for further proceedings. The Court asked the Ingham County Court to first try and resolve the case on other issues. Two justice dissented and believed that the Court should use that case as a vehicle to resolve the standards for determining when a defendant is entitled to a dismissal when the prosecution waits too long to bring a case.

According to the Lansing State Journal, on August 25th, Judge Colette recommended the case be dismissed based on the defective bindover. The Ingham County Prosecutor’s Office is still evaluating the ruling. According to a later article in the Lansing Journal the prosecution is quoted as saying: “Based on the evidence and the record we have generated (Monday), I will determine whether or not it's appropriate to continue."