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Michigan Supreme Court

People v Koon reversed. Mich SCt Holds that Medical Marijuana patients can drive as long as they aren't actually intoxicated.

Reversing the Michigan Court of Appeals, the Michigan Supreme Court has held that Medical Marijuana patients can drive cars with a detectable presence of THC in their system as long as they are not actually impaired. The Court of Appeals had ruled that Michigan’s zero tolerance policy on “drugged driving” controlled. This meant that the presence of active THC was sufficient to convict the defendant.

The Supreme Court reversed holding that the protections under Section 4 of the Medical Marijuana Act controlled. The Court specifically noted that Section 7 of the Act provided that nothing in the Act would prohibit the prosecution of actually driving while impaired. The Supreme Court suggested that the Legislature adopt a standard analogous to Washington’s which prohibited 5 ng/ml of THC in a person’s system.
People v Koon, Supreme Court No. 145259

Michigan Supreme Court Rules Patient-to-Patient Transfers Are Not Protected

The Supreme Court ruled in the McQueen case that patient-to-patient transfers are not covered by the medical marijuana laws. The Court stated that while patient-to-patient transfers were permitted, the donor patient was not operating with a bona fide medical purpose when giving/providing the medicine to another patient because it didn’t help the medical state of the donor patient. Here is a nice summary of the holding.

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...

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."

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!

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.

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.

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.