In People v Jack, the Court of Appeals was tasked with the question of whether the State could keep witness contact information from the defense. The American Bar Association and federal courts have long held that a witness in a criminal case does not belong to either side, yet prosecutors’ continually attempt to frustrate defense access to prosecution witnesses.
The defense is entitled to a copy of the police reports under Michigan Court Rule (“MCR”) 6.201(B)(2). In Jack, the State provided redacted police reports to the defense which excluded the contact information for their witnesses. The defense requested unredacted versions of the report and the State refused. The defense filed a motion to compel the production of these reports. “The trial court noted that the police reports could be redacted if they concerned a continuing investigation, as provided by MCR 6.201(B)(2), or the prosecutor could seek a protective order,” and therefore allowed the production.
The prosecution appealed the matter to the Court of Appeals which upheld the trial court 2-1. The majority held that the Court Rule presumptively entitles a criminal defendant to the disclosure of unredacted police reports. If the state has individualized cause in a particular case to withhold such information, they have a duty to file a motion for a protective order. They simply cannot refuse to produce the non-redacted documents and shift the burden to the defense.
Dissenting Judge Boonstra disagreed. He held that the Court Rules allow such redactions and that the defendant’s redress would be to file a motion for an in camera hearing under MCR 6.201(D) to determine whether the redactions are warranted.
The People are still within the time limit to appeal to the Michigan Supreme Court.
Simon Wheeler had a gun in his waistband while working on his car in the City of Detroit. Police officer’s passing the Defendant noted his gun in his “waistband with its handle sticking out of his coat.” The Defendant successfully moved to suppress the evidence claiming that he was open carrying the firearm and hat was permitted under Michigan law. The Court of Appeals reversed this ruling in a published opinion.
The Court of Appeals said “It has long been established by this Court that total concealment or invisibility is not required under the statute to support such a conviction.” Rather, “a weapon is concealed when it is not discernible by the ordinary observation of persons coming in contact with the person carrying it, casually observing him, as people do in the ordinary and usual associations of life.” Id. (cleaned up). The Court went on to note that “While the handgun was partially visible because of the positioning of defendant’s body and the vantage point of the police officers, it cannot be said that defendant was “openly” carrying the weapon in full view for the public to see upon casual observation. A portion of the gun was in defendant’s waistband and the portion that was not in his waistband was, at minimum, partially covered by his clothing.”
In order to be openly carried, the fire arm had to be ”in full view for the public to see upon casual observation.” Normally the question of whether the concealment is open is a question of fact for the jury. While a person can carry a gun in a concealed manner on their own property, one step off of your property lands you felony.
Should a person wish to attempt to open carry a weapon, their best strategy would be to carry the gun in a manner that makes it completely obvious. A clear holster worn so that it can’t be obstructed by outer clothing would seem to be the best solution. Also be aware that there is no such thing as “open carry” inside a motor vehicle. The firearm must be transported unloaded, in a locked case which is inaccessible to the occupant of the motor vehicle.
It is important to note that medical marijuana patients have the burden of showing that they remain in compliance with the MMMA to avoid facing possible issues on probation. If you are a medical marijuana patient, this means you must pay close attention to the requirements to qualify for Section 4 immunity under the MMMA. If you engage in conduct that does not fall within the protection of Section 4 immunity, you could still face a probation violation.
Thue offers powerful protection for medical marijuana patients to continue to use medical marijuana while on bond for a pending charge. The Court’s rationale certainly seems to suggest that the MMMA also protects a medical marijuana patient’s ability to use medical marijuana while on bond for a pending criminal offense, but the issue is not officially decided and many judges will be resistant to the argument. Additionally, Michigan’s recreational marijuana law, the Michigan Regulation and Taxation of Marihuana Act (“MRTMA”), shares virtually all of the same statutory language that the Court of Appeals relied upon to reach its decision in the Thue case, there remains a question of whether adults over the age of 21 in Michigan can be forced to stop using recreational marijuana while on bond or probation. Section 5 of the MRTMA provides that adults age 21 and up in Michigan cannot be subject to “penalty in any matter” for engaging in conduct that is protected by the MRTMA. This is the same language that the Court of Appeals relied upon from the MMMA in reaching its decision in Thue. Further, Section 4 of the MRTMA has the same kind of preemption language that appears in the MMMA. As a result, it would appear that the Thue opinion opens the door for an argument that a court may not prohibit MRTMA-compliant marijuana activity as a condition of probation.
Probationers can legally use marijuana on probation today. The State has until April 8th 2021 to appeal the ruling to the Supreme Court.
A friend just sent me a 2013 New Yorker article on the Reid Method of Interrogation called “The Interview: Do Police Interrogation Techniques Produce False Confessions?” I think I read it when it came out, but it was definitely worth a second read. In doing a little research on the subject, I also noticed that more media outlets are running with the story this including this article from the New York Times, this one from Psychology Today, and this one from PBS. The Reid Method of interrogation has been directly tied to wrongful convictions of individuals such as the Central Park Jogger case, and more. Despite all these criticism, it amazes me how much emphasis people put on confessions. More disconcerting in this tendency of many judges to bar expert testimony about the problems with false confession.
For a more academic analysis of what’s wrong with the Reid method, please review this article. This article is somewhat dated but excellent. It is written by two of the nation’s top experts.
FAIR summarized the reforms on its website as follows:
We need written confirmation of the policy, but this is what we learned: INTERPOL has notified the policy to the National Central Bureaus, the national police contact points for INTERPOL, but has not disseminated it further. In substance, the policy is that INTERPOL will remove a Red Notice if it can verify that the person has been recognised as refugee under the 1951 Convention. It does not matter whether the criminal prosecution in question was the ground for the asylum or not; the grant of asylum suffices. INTERPOL will not reveal to the country behind the Red Notice which country granted asylum, to address confidentiality concerns. There are, however, important caveats: (A) INTERPOL must be able to verify the asylum grant, which asylum-granting countries may be slow to do for confidentiality reasons, and (B) the country issuing the Red Notice can revert to INTERPOL with further material asking it to revisit the decision.
This point was also covered in a prior Interpol resolution, AGN/53/RES/7 in 1984 and before that in AGN/20/RES/11 in 1951. The problem is that political offenses are difficult to define and nation states almost always artfully plead these offenses. Congratulations to FAIR.
Early in office, the governor dismantled many of the reforms that former Governor Jennifer Granholm had put in place. Under her Director of the Department of Corrections (Patricia Caruso), Michigan was a nationwide leader in cutting its prison population. This movement was criticized by the prosecutors as getting soft on crime. When Governor Snyder entered office, he dismantled many of his predecessor’s reforms. He is now seeing the wisdom in this programs. One of the unfortunate aspects of term limits is that many politicians are often forced to relearn hard learned lessons. Getting tough on crime is superficially appealing, but it doesn’t work. It breaks state budgets, does not deter crime, and often increases violence. I am delighted that Governor Snyder is finally learning his lesson and can only hope that his successor does not have to repeat the process yet again.
“On April 9, 2015 the Georgian chief prosecutor’s office was notified by Interpol general secretariat that it has revoked red notice against Zurab Adeishvili,” the Georgian prosecutor’s office said in a statement released on April 14 after it emerged that ‘red notice’ against Adeishvili was taken down from Interpol website and his name removed from its wanted list.
The Georgian prosecutor’s office said that in its notification Interpol cited “granting of a refugee status to Adeishvili by one of the countries” as the reason behind its decision to revoke red notice against Georgia’s ex-justice minister; prosecutor’s office said it does not know which country it was.”
Tragically, Red Notices frequently are used to stop people from getting refugee status, but once they get the status, Interpol can be persuaded to remove the notice. In the case of Mr. Adeishvili, the Georgian authorities were apparently upset because the notice was removed without giving them an opportunity to respond. In a separate statement the Georgia prosecutor proposed adding asylum notations to I-link (Interpol’s database) rather than deleting the notice.
The United States Supreme Court split badly the last time the question was before them about whether an offender could assert the Fifth Amendment privilege of self-incrimination without penalty at a parole interview. The deciding vote was Justice O’Connor who has since left the Court.
For a nice history of this amendment, checkout this summary on the Federal Evidence Review blog.
In People v. Wilder, No. 316220, declined to extend Deroche to an actual possession situation. In Wilder, there was evidence that the Defendant actually moved the firearm while intoxicated. The Court, therefore, found that the statute met the intermediate scrutinity required for a Second Amendment analysis.
Ms. Wilder had been drinking most of the day with her domestic partner. The complainant testified that the defendant brandished the gun at her after she hit the complainant, strangled her, and told her to get out of the house; the Defendant testified that she moved the firearm to a place of temporary safety from her drunken partner. She denied the brandishing.
The Court of Appeals applied a two-prong test to determine and determined that the application did not violate the Defendant ‘s Second Amendment rights. The take-away is that gun owners who choose to drink in their own home will face judicial scrutiny if they have a firearm on their premises and drink. Person’s considering drinking at home should physically lock their firearms up prior to consuming any alcohol. People v Wilder, Court of Appeals No. 316220.
The Defendant raised a Daubert challenge to the Court’s decision to admit the DNA evidence from a scarf used to bind the victim’s hands. Because the scarf contained DNA from at least four people (only one of whom was male) the forensic analyst used the Y-STR method of DNA testing to isolate the male Y-chromosome DNA.
Unlike more common STR DNA testing, which can identify a unique individual, Y-STR DNA testing cannot because a man will have the same Y-STR DNA profile as his father and grandfather, and because random matches in the general population are also possible. Stated another way, Y-STR is significantly less reliable to than STR testing.
Since the forensic analyst testified in detail about the limitations of Y-STR DNA evidence, and Y-STR DNA testing is an accepted practice, the court held that the method’s limitations go to the weight rather than the admissibility of the evidence and it was properly admitted.
The Court of Appeals also rejected the Defense 404(b) challenge and the defense prosecutorial misconduct challenge. People v Woods, Court of Appeals No. 315379.
Israel has filed a formal challenge to Turkey’s decision to file Red Notices against a number of Israeli officer involved in the Gaza blockade and their efforts to frustrate Turkey’s “blockade running.” Whatever your politics on the Israel/Palestine issue, this is plainly a violation of the Red Notice procedure. To read the article on the notice and the challenge, click here.
When a crime is allegedly committed, the police and the prosecution can often seize items related to the crime. This can sometimes happen when the owner of the property is completely innocent. In tough times, this has created a conflict of interest in the police and prosecutors. They can easily make a ton of money to help their departments at the expense of innocent individuals. Two bills were recently introduced in the Michigan Legislature to place some modest limits on this problems. HB 5213 would require a criminal conviction before a forfeiture action could be filed. HB5081 tightens up the reporting requirements on the forfeiture so that problem departments can be identified in the future.
In Apprendi v New Jersey, the Court held that a State could not avoid the reasonable doubt standard by shifting elements of a criminal offense to the sentencing phase. The Court stated that factors which raised penalties are de facto elements which must be proven beyond a reasonable doubt to a jury. Over the last ten years, the Michigan Supreme Court has continuously rejected this argument despite the fact that the United States Supreme Court has been consistently expanding the Apprendi doctrine.
Last year, I blogged about a United States Supreme Court rolling called Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), which I thought was the last nail in this flawed argument’s “coffin.” How wrong I was.
Yesterday, a panel of Michigan Court of Appeals rejected the Elaine challenge in People v Herron, Court of Appeals No. 309320. The court distinguished every United States Supreme Court case along this line based and distinctions which this author believes are irrelevant. If they willing of our Court of Appeals is mirrored by the Michigan Supreme Court, the only remedy that a defendant world will receive is likely to be from the United States Supreme Court. Stay tuned, this issue is far from over.
Mr. Herron is represented by Christine Pagac at the State Appellate Defender’s Offender’s Office.
Brady v Maryland prosecutors to disclose all evidence which is exculpatory in nature or which mitigates punishment. Unfortunately, in our adversarial system prosecutors are often tempted to bury this evidence. The problem comes with the fact that the person exercising this judgment has a conflicting obligation Moschus is to try and convict a defendant. What prosecutor is theoretically the Minister of Justice career advancement is normally based on convictions. Prosecutor to conceal evidence rarely phrase discipline for doing so and I virtually never prosecuted.
Kenneth Olsen was charged with developing chemical weapons of mass distraction. There was evidence presented at trial that he was attempting to develop the chemical ricin. The quantities impurities of this drug however were so low that the government was going to have a difficult time proving that the defendant had any intent to injure other people. To overcome this, the assistant United States attorney call Arnold Meinkhoff as their expert witness. Prosecutor concealed an internal investigation which showed huge problems with this expert witnesses integrity or level of care. Fourteen of his one hundred investigations which were audited showed serious problems.
This was never turned over to the defense counsel. The majority of the Ninth Circuit Court of Appeals upheld this nondisclosure. A majority of United States Court of Appeals for the Ninth Circuit then denied en band rehearing.Judge Kozinski not only dissented from the results in that case, but noted that Brady violations had reached epidemic proportions.
Judge Kozinski further wrote:
“The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here."
The problem is systemic. Prosecutors cannot be trusted to determine what evidence must be turned over to undercut their cases. Courts need to move this determination from the prosecutor to an independent master. Similarly forensics needs to be moved from an adversarial branch government to a branch under the court which is not incentivized in anyway to call a matter in one want manor or the other. These experts also need to be shielded from the other evidence and opinions in the case so that all they are determining is based on the evidence they are charge with investigating.
It is easy to think that you would stand your ground if you are actually innocent, but what would you do if they offered you probation for an offense you did not commit versus twenty years in the joint if the jury convicts. The Acceptance of Responsibility scorings on the Sentencing Guidelines were meant to create an acceptable difference. It gives you about a 15% discount on the average sentence for pleading guilty. The practices outlined by the New York Times are highly problematic.
I also want to give a public nod to my colleague and friend Neil Rockind for his brilliant work in the case. He is a truly great co-counsel.
Then the Sixth Circuit issued its October 30, 2013, Peoples v Lafler opinion. A three-member panel criticized a Michigan prosecutor for a false inference argument and deemed that it was prosecutorial misconduct. The court ruled that AEDPA precluded them from reviewing the case, yet the issue that ultimately was considered dicta in the appellate opinion may nudge open AEDPA’s heavy door. In Peoples v. Lafler, two witnesses told a similar story that was the only evidence connecting Jesse Peoples to the murder of Shannon Clark, a Detroit drug dealer fatally shot outside his home. However, the evidence was “known false testimony” and “trial counsel did not use the only hard evidence at his disposal to prove that the two witnesses not only lied, but told the same lie,” the appellate court said in its opinion.
Three months after Clark’s death, police arrested Jesse Peoples, Demetrious Powell, and Cornelious Harris after the men led police on a chase in a stolen Jaguar that ultimately crashed. Police found on the driver’s side floorboard the pistol that killed Clark. Also, a police officer witnessing the crash writes a report identifying Harris as the driver. Peoples, while awaiting trial, mailed defense counsel a copy of the police report, indictment, and criminal docket sheet showing that Harris was the Jag’s driver. However, they are ignored and Harris and Powell are able to spin a similar story about Peoples’ involvement.
The Sixth Circuit partially reversed the decision relating to Peoples’ ineffective assistance of counsel claim and remanded the case to the district court to conditionally grant a habeas corpus writ, giving the State of Michigan 90 days to retry Peoples or release him from custody. Quoting the opinion, “ ‘[i]t is particularly unreasonable to fail to track down readily available and likely useful evidence that a client himself asks his counsel to obtain.’ Couch v. Booker, 632 F.3d 241, 247 (6th Cir. 2011). Where, as here, counsel fails to use a police report, indictments, and criminal docket sheets the client himself obtained that would have proven counsel’s own defense theory, the failure is, a fortiori, unreasonable to the point of constitutional deficiency. It certainly is not, by any objective measure, sound trial strategy.”
The appellate court’s AEDPA deference delved into discussions of a “modified form of AEDPA deference,” in which the court focuses on the result rather than the reasoning of the state court. Hawkins v. Coyle, 547 F.3d 540, 546 (6th Cir. 2008). The question then, according to the court, is whether there was a reasonable likelihood that the trial’s outcome would have been different if the known false testimony had never been presented. The court concluded that there was other testimony connecting him to the murder so there was no reasonable likelihood that the outcome would have been acquittal or conviction on a lesser charge. Keep in mind, the court decided in this case to “REMAND the case to the district court with instructions to conditionally GRANT a writ of habeas corpus.”
The Michigan Supreme Court just granted permission to appeal on People v Carp and People v Eliason. These cases deal with the retroactivity of the United States Supreme Court’s ruling in Miller v Alabama (Carp); and the appropriate remedy should be for these individuals (Eliason). The Court has also agreed to hear a third case where the question is whether a juvenile convicted of aiding and abetting first degree murder can potentially receive a natural life sentence or whether Graham v Florida bars this. I will post an update to this with links to the various orders in the near future. In the mean time, here is a good link from M-Live.