Tag Archives: Michigan

Timing Counts in Criminal Defense

Posted on by
Reply

Criminal defendants in the State of Michigan have several rights having to do with the timely execution of the criminal justice system.  In this post I’m just going to cover a couple of them and show how they have been applied in some Michigan cases.

Let’s take, for example, the requirement that arrests should not be delayed just to gain a tactical advantage for the prosecution if that unfairly prejudices a defendant.  Believe it or not, that is a legal basis upon which to challenge criminal charges.  Mere delay between when an offense took place and when you are arrested is not in itself a denial of due process rights.  But if you can prove that the delay in arrest prejudices you and was done intentionally to gain a tactical advantage, you put the pressure on the prosecution to prove that the reason for the delay justifies the prejudice.  Granted, you have to prove that the delay actually and substantially affected your ability to defend against the charges such that the outcome is likely to be affected.  That might require something like waiting for witnesses who would exculpate you to die, or waiting for evidence that is temporary and not capable of being preserved to waste away.

Another requirement that sometimes comes into play is the 180 day rule.  This rule comes from the Michigan Court Rules for Criminal Procedure which says that once the prosecution has notice of a defendant’s presence in a state prison, the prosecutor has 180 days to start the formal criminal process against that defendant.  If it isn’t accomplished within that time frame, courts in Michigan are instructed by the Court Rule to dismiss the charges that have gone untried.  Unfortunately this rule doesn’t apply for county jails, nor does the 180 day apply to people who are not incarcerated.  But it goes to show that when the prosecution knows that a defendant is in state prison, the requirement for trial within 180 days ensures right to speedy trial.  It gives people a chance to get concurrent sentences so they can have a second chance at life after prison.

Michigan GOP hypervigilant to block paid leave laws that don’t exist

Posted on by
Reply

So the Michigan Senate just passed Senate Bill 173.  SB173 is designed to ban any ordinances passed by municipal governments or county governments, from requiring employers to offer paid leave beyond that which is required by state or federal law.

The only weird thing about this bill is that absolutely no city, township, or county in the state has passed such a requirement. Senator Rebekah Warren, D-Ann Arbor, correctly pointed out that this would infringe on the rights of local governments to create business climates that might actually attract employees (see success in cities like San Francisco).

Man, am I glad I live in a state that is dominated by a Legislature that is that obsessed about protecting corporate rights, that aren’t even being threatened!  

The passage in the Senate puts the focus on the House, where a similar bill awaits passage to protect employers from the crippling danger of laws that are not in existence.

Breathe a sigh of relief!  Thank you Senator Jansen for protecting the rights of businesses from laws that don’t exist!

Drug Sentencing Disparity is Intentional Racial Discrimination — Sixth Circuit

Posted on by
Reply

Yesterday’s blog highlighted the challenges minorities face within the state courts of Michigan to enforce constitutional protections.

Today, we have the other side of the coin, where the traditionally moderate-to-conservative Sixth Circuit Court of Appeals went out of their way to state that much of our legal framework on drug sentencing has been discriminatory in nature and that there is still more work that needs to be done to ensure equal protection for all citizens.

Enter United States v Blewett (PDF file), a case involving crack cocaine and two black men.  These two men were convicted of possession of crack cocaine.  The old sentencing guidelines for crack cocaine had a provision known as the 100-1 ratio.  One gram of crack cocaine was treated, for sentencing purposes, the same as 100 grams of powder cocaine.  Even though evidence mounted for years that this was discriminatory in nature towards blacks (they made up 80% of all crack defendants, while being a minority of their users) it wasn’t until 2010 that Congress did something about it.

The Fair Sentencing Act did away with the 100-1 ratio and modified it to 18-1.  However, thousands of people, like the Blewitts, continued to sit in prison on extremely long minimum sentences because the Fair Sentencing Act was not clearly identified to act retroactively.  In fact, the Court noted that if the Blewitts had been sentenced today under the current ratio, they wouldn’t have even been subject to a minimum sentence (remember their minimum sentence is 10 years) because the amount of crack cocaine was not sufficient to trigger that sanction!

In holding that the Fair Sentencing Act should apply to all defendants, regardless of when they were convicted, it sent a strong message that it believes racial discrimination is still a current concern.  It’s obvious, don’t you think?  If we had to enact a new law in 2010 because the current law was “one of the most notorious symbols of racial discrimination in the modern criminal justice system” — according to Senator Patrick Leahy — then that means up until 2009 we were treating blacks in blatantly discriminatory ways with no coherent rationale for doing so.

The Court gave some strong medicine to rectify the situation.  Instead of dumping the burden back on the minority defendant (like the Court of Appeals in Michigan did with jury pools).  In their own words:

If we continue now with a construction of the statute that perpetuates the discrimination, there is no longer any defense that the discrimination is unintentional.

I’m willing to bet there are going to be lots of motions for re-sentencing coming up in Michigan.

Snow and Ice Cases in Michigan? Forget About It

Posted on by
Reply

Let’s face it Michigan: slip and fall cases on ice are dead.  Dead.  Dead.

The precedent of the Supreme Court has resulted in such strong legal precedent that the Court of Appeals concluded that 12 to 18 inches of snow does not pose a sufficient risk of harm to require a landowner to do anything to protect its business invitees.

Did you catch that?  Dear business owner — while it would be ridiculously stupid from a business mindset – legally you have to do NOTHING about this much snow!  Shovel?  No way!  Salt?  Why bother!  Obviously, as a business if you make it difficult for your customers to reach you, you might as well close shop.

But legally, thanks to the Michigan Supreme Court’s precedent over the last 20 years we’ve gone from a state with reasonable protections for people spending their money at commercial establishments, to a state that encourages people to stay at home when the weather is bad.

The most recent case that highlights the pitfalls of this precedent (known as the open and obvious doctrine) is Lemin v John Michael Garrett, M.D., P.C. (PDF file) where the Court of Appeals held that a parking lot with 12 to 18 inches of snowfall does not make a landowner liable, because as they put it the plaintiff “chose to confront the hazard anyway.”

Let’s think about some of these implications.  Your child is hungry, diapers are gone.  It is blanketed with snow outside.  The Courts would say to you, “ah, you are choosing to put yourself in harms way to go to that convenience store or grocery store that never clears the parking lot.”  Sounds like a great philosophy to help the Michigan economy!  Stay at home, don’t purchase goods your family needs, don’t support local business, all because we don’t want to have to require businesses to have to do anything about snow and ice in winter.

How did we get here?  There will be one way to get out — that comes next November.

Black Man On Trial With No Blacks In Jury Pool? No Problem Says Court of Appeals

Posted on by
Reply

What does it take to prove that jury pools are constitutionally insufficient to provide a minority the right to a fair trial?

The Michigan Court of Appeals (PDF file) confirmed that it takes more than just accusations that there has never been a black person on a jury venire in that county, and it takes more than just the coincidence there were no actual African-Americans in the jury pool that resulted in a conviction for resisting or obstructing a police officer and operating a motor vehicle while intoxicated.

After a jury convicted Jamie Ray Jett in Gogebic County of those crimes, he was sentenced to a minimum of 46 months to 15 years in prison.  Because prison terms are of an indeterminate nature, it will be up to the parole board to decide when, if at all, Mr. Jett is released short of 15 years.  Gogebic County is the westernmost county in the Upper Peninsula.  It is overwhelmingly white (2000 Census indicated 94.24% white) and at his trial, Mr. Jett’s attorney was confronted with no African-Americans in the jury pool.

It is possible to show that your 6th Amendment rights to a trial by an impartial jury of your peers is violated, but it takes more than unsupported allegations.  You have to show systematic efforts to keep a distinctive minority group from participating in the proceedings.  The Court of Appeals explained that you have to show this exclusion takes place over time and that Mr. Jett’s attorney failed to demonstrate that.  While they were quiet as to what type of evidence would suffice, the panel did suggest that perhaps an affidavit could at least put into question the fairness of jury pools.

While it is possible to show that you can’t get an impartial jury due to racial disparities, this opinion by the Court of Appeals reinforced the reality it is hard to prove.  Maybe we need to reopen studies in such counties to ensure that the rights of the few are not being eradicated for the ease of the many.