Tuesday, April 29, 2014

Today's argument at the Supreme Court: Is a warrant necessary for searching cell phones of arrestees?

In case you were wondering, the US Supreme Court will hear oral argument today (article here) about whether a search warrant is required for searching a cell phone of an arrestee.

The storyline goes something like this:  If you are driving a car with expired tags, the police might pull you over.  If they do, they will ask to see your driver’s license.  When you give it to them, they will run a computer check and learn that it has been suspended.  So they decide to impound the car.  But before they tow the car away, they search it.  When they search it, they discover two handguns under the hood, so they arrest you.  When they arrest you, they take your smart phone.  When they take your smart phone, they read your text messages.  When they read the messages, they see texts which suggest that you might be a member of a local gang.  Based in part on those texts, they suspect that you may have been involved in a gang-related shooting a couple of weeks ago, and so they look at your phone again, where they find more evidence to support the theory that you belong to a gang and were involved in the shooting.  

At your trial, you ask the judge to bar the prosecutors from introducing the evidence obtained from your phone.  But the judge rejects that request, ruling that the police could search your phone as part of the process of arresting you – a rule known as a “search incident to arrest.”

What is a pardon? A primer in the Michigan law of pardons and parole

What is a pardon under Michigan law?

A pardon is a decision by the governor (but see below) to make a prisoner's conviction essentially disappear.

A pardon will "erase" the crime alleged to have been committed by the prisoner.

What is the parole procedure like? 
Michigan's Parole Board, part of the Department of Corrections, oversees parole. The Parole Board will generally review a prisoner's file about 5-7 months before the end of a prisoner's minimum sentence to see if he or she will be considered for parole. For example, if a prisoner was sentenced to 5-15 years, then that prisoner needs to have served around 4 years and a few months before the parole board will consider him or her for parole. If there are no concerns about the prisoner's behavior (like misconduct while serving their sentence), the parole board will make a report in advance, and parole review will begin. If any additional conditions are made (like drug treatment) on parole, the prisoner will need to successfully complete those conditions before parole begins.

Parole is  very similar to being "out on bond" before a trial: there are conditions attached to parole (like drug testing, reporting for parole, remaining at work, not re-offending). If the conditions are not met, parole can be revoked, and a prisoner will have to continue to serve his or her sentence. More information about the parole process can be found here.

How does one request a pardon? 
The Parole board also oversees pardon requests. Although the Governor (under executive power granted to that office under the Michigan constitution) gets to make the final decision, the process will go like this:
1. the prisoner (or another on his/her behalf) will write a pardon request.
2. the Parole Board will review that request.
3. the Parole Board will then write a report and submit it with the request to the governor's office.
4. Before the governor's decision, the sentencing judge will also have a chance to state an opinion about the pardon.
5. The pardon request will either be granted or denied.
A pardon application (for current prisoners only) can be found here.  But if a prisoner is seeking a pardon after being paroled, he or she should follow these instructions.

What is the difference between a pardon and a commutation? 
Pardons will erase the conviction. With a commutation of sentence /request for clemency, the conviction still stands, but for other reasons the prisoner is not completing his or her sentence.

Are they subject to the same process?

Who can write a pardon request/ commutation request?
The request can be made by the prisoner, a family member, an attorney hired by the prisoner or family member, or a medical doctor who has seen the prisoner, and feels that he or she should be released due to a medical condition.

Are they any alternatives to the pardon request?
Yes, though this depends on a few things.
1. A criminal appeal could be tried if the case is one that is eligible for appeal. (See Michigan Court Rule 6.433).
2. A motion for relief from judgment is another alternative (under Michigan Court Rule 6.502). This motion goes before the judge who sentenced the defendant. 

Is it possible to get a "time cut" on a sentence, anyway? 
Maybe not. Read this article. *(More updates to follow).

Monday, April 28, 2014

Thursday, April 24, 2014

Supreme Court upholds Michigan's ban on racial preferences

The Supreme Court on Tuesday made clear that states are free to prohibit the use of racial considerations in university admissions, upholding Michigan’s constitutional amendment banning affirmative action.

By a vote of 6 to 2, the court concluded that it was not up to judges to overturn the 2006 decision by Michigan voters to bar consideration of race when deciding who gets into the state’s universities.

Article here. 

. . . .The decision further illustrates the court’s skepticism about race-conscious government programs. In effect, the ruling says that universities may still employ the limited consideration of race authorized in previous Supreme Court rulings. But it also said that voters and legislators also have the right to curtail such plans. That it took five separate opinions totaling 102 pages written over six months to reach that result is a sign of how divided the court remains on the issue.

Professional ethics definitions 101: Don't steal from your clients

A Grosse Pointe attorney pleaded guilty Wednesday to embezzling more than $2.5 million from his law firm's clients and laundering the money to hide his crime, according to the U.S. Attorneys office.

Kenneth Flaska, 62, pleaded guilty before U.S. District Judge Paul D. Borman, admitting that between 2004 and 2013, he fraudulently obtained more than $2.5 million belonging to clients of his law firm. Flaska moved the money out of client accounts and into his own bank and investment accounts.

Article here. 

Tuesday, April 22, 2014

Michigan could be first state to use roadside saliva test for marijuana use

Under a bill proposed in Lansing, Michigan could become the first state to adopt a roadside saliva test that aims to tell police if a driver is impaired due to consuming marijuana.

Saliva testing is being pushed by a bipartisan group of Michigan legislators and championed by the Michigan State Police. But researchers who’ve studied the test method said results are inconsistent and especially misleading when applied to regular users of cannabis, such as the more than 100,000 Michiganders who are allowed to use medical marijuana.

 Article here. 

This is despite the fact that the Michigan Supreme Court doesn't support the use of random roadside sobriety tests. 

Michigan man calls judge a liar, receives two life sentences

With time ticking away on his freedom, Ryan Wyngarden spent more than an hour blaming just about everyone involved in his double-murder case. First, he accused detectives of coercing his wife, the key witness, who testified against him.

Article here. 

Ryan Wyngarden, the man convicted of murdering his sister and brother in-law was given two life sentences in an Ottawa County courtroom on Monday.

Friday, April 18, 2014

Affirmative Action and the U of M - the debate continues

A long-time opponent of the use of affirmative action in college admissions is challenging a black Detroit student to a public debate.

Article here. 

Jennifer Gratz, who sued the University of Michigan and helped lead a successful drive to get Michigan voters to ban the use of the affirmative action, in a news release Thursday issued the challenge to University Preparatory Academy senior Brooke Kimbrough.


The issue of race is boiling at U-M. It is the centerpiece of a second Supreme Court case looking at the constitutionality of Michigan’s ban on the use of race in admissions. That decision is likely to come this spring. The school’s Black Student Union has been protesting the lack of minority students on campus and has been meeting all winter with administrators about the issue. The two sides recently announced a series of agreements the student group called small victories.

Thursday, April 17, 2014

State Bar of Michigan seeks membership applications for committee service

Assist your State Bar by being active in a committee! Applications are due by April 25, 2014.

This link has applications & committee lists. I applied for a committee, hopefully I will get on it.

Wednesday, April 16, 2014

What does "the new normal" mean to current legal scholarship?

Law schools, and the legal profession, are wondering how to adjust since law school enrollment is steeply declining. There's definitely been a period of adjustment since 2009/10, when enrollment was at its recent high. Law schools are cutting costs by asking faculty to retire, or offering merit-based tuition, and in rare cases, cutting tuition amounts.

But what does this all mean for the current quality of legal scholarship? This article explains more.  (via TaxProf blog).

Tuesday, April 15, 2014

Choosing a family law attorney, Part Three

Part Three 

Welcome back. In Part One, ways to search for your family law attorney were covered. Part Two addressed phone contact with your potential attorney. Part Three will cover what to expect in the in-person consultation.

Frequently asked questions: 

1. Should I bring anyone with me? What about things I should bring with me?
A: It depends. Some attorneys would prefer if you attend the appointment alone. There are reasons for this: for example, you will feel less embarrassed discussing personal details. And, any conversation with your attorney is privileged, but once a third party joins that conversation, where's the client's confidentiality?
However, if you feel you need moral support to go into the consultation, or that you are likely to forget things the attorney talked about, bringing another person might be a good idea.

As far as things to bring: any thing that has been filed with the court so far, if anything. And anything your attorney requests you to bring (tax statements, for example).

2. What kinds of questions should I ask? 
Feel free to ask anything you would like of your attorney about your situation. If your attorney brushes past your questions, ask yourself if you feel that your concerns will be treated with the importance they deserve or not. After all, the consultation is a decision for both you and the attorney- to decide whether you will continue this relationship.  If it feels as if your attorney is trying to offer you a "one-size-fits-all" case, don't continue after the consultation.

3.What kinds of topics will we cover? Why is this so personal?
Anything that affected your married life, and more, will be covered. The reason is because the court will have to make decisions on some of them as your case progresses

For example:
Topic:                                                                     Reason:
When were your children born?                              Eligibility for Child Support
How much is your house worth?                             If it is considered marital property, it will be divided
Where do you and your spouse work                     Which spouse might be ordered to pay support
       and how much do you earn?

4. What happens next? 
That depends on your situation. If you're just starting a divorce, initial filing with the county court where you live will be next. If you're already somewhere past the initial filing, a motion might be next to decide some of the open issues in your case.This is where the rubber hits the road, and your attorney gives you legal advice about your options in your current situation.

There are a lot of online resources about family law in various states. Some of them will not apply to your situation, so as with so many things you read online, take them with a grain of salt. If you still have questions about your situation, call your attorney again to ask.

Wednesday, April 2, 2014

Does Michigan's Right-To-Work law apply to State Bar Membership? Hearing Scheduled

The Task Force on the Role of the State Bar of Michigan will hold a public hearing regarding the Task Force’s charge described in Michigan Supreme Court Administrative Order No. 2014-5.

The hearing will be held Friday, May 2, 2014 at the Michigan Hall of Justice, 925 West Ottawa Street in Lansing, beginning at 9:30.

Article here.

Tuesday, April 1, 2014

Legal Technology: What a solo law practice needs

What does a solo law practice need, in terms of technology?

Read this article for one lawyer's opinion (via the Lawyerist). It's a fairly complete list, and covers a lot of law-specific technology needs

My office set up ideally has: 2 cell phones (I have one for work and one for non-work); a printer, a wireless connection, a laptop, some spreadsheets (I am trying to move to Quicken but haven't yet), some specific software (I bought Marginsoft's "Support 2014" to calculate child support & spousal support), and (eek!) some notebooks for tracking my time (not recommended, I know.)

Choosing a family law attorney, Part Two

In Part One, we discussed ways of getting information on attorneys. Part Two will talk about the initial phone contact with the potential lawyer's offices.

Frequently asked questions: 
1. Who answers the phone and how do they answer it? 
A: Many attorneys do not answer their own phones. His or her schedule won't permit it perhaps, or the attorney prefers to have a gate keeper between himself or herself and the general public. Either way, you are a potential paying client, so you should feel welcomed, and not that you're an intrusion on otherwise valuable time. It's possible that you will have to leave a voice mail. If so, make sure you state whether the attorney can call you back, or not.

2. What kinds of questions should I ask? What kinds of questions should I be ready to answer?
A: Be prepared with a list of questions about your specific situation. For example, "I am thinking about filing for divorce, and I have three minor children." Or: "My ex-girlfriend left the state with our child, can I start a custody hearing?" Be specific, as the attorney can only answer what they are aware of. Don't be afraid to ask about costs.

If you have a specific date coming up, make sure you mention that, or it may not be addressed. For example, "I just left a custody hearing this morning, and the judge said to come back for an evidentiary hearing . . . "

Remember, attorneys are smart, not psychic! And it's entirely possible that some of your questions will need more time before they can be answered. This is why there is no "one-size-fits-all" divorces.

On the other hand, try to answer any questions that are asked. My office has a list of questions used for when a potential new client calls, so that I am aware of what next steps need to be taken for that case. We will always ask where you live, how long you've been married, and the ages of the children.

3. Scheduling the initial appointment and other matters.
It's possible that you'll be scheduled for either a phone consultation, or an in-office consultation. I prefer in-office consultations. I feel that it's easier, less rushed than a phone call, and allows the potential client (and attorney) feel more at ease with one another.

Please consider where your attorney is located, your own location, and the courthouse you'll be using. If you plan on making your attorney drive long distances, that's fine, but that might impact your cost overall.

4. The appointment is scheduled, now what?
It's possible the attorney will mail you information to fill out, or have you fill it out in the consultation. This information will help them start your case, and give you some legal answers. Either way, keep your appointment, or call to reschedule it if necessary.

Set aside enough time to drive to the appointment, depending on the time of day.

Bring any necessary documents with you, for example, anything you've received from the court, or that you feel will help the attorney to serve you better.

5. How much should I expect to pay?
A: This is a difficult question to answer. Attorneys have rules of professional ethics to guide them in setting fees. (MRPC 1.5)  That said, a basic retainer could range from $850 to $5000, depending on the complexity of the legal issues involved, the experience of the attorney, and the novelty of the legal issues involved (more complex or unique issues can take longer to be addressed).  And, the retainer may or may not cover your entire cost of the case, depending on how long it takes, and the nature of the parties involved (who will argue more over issues, you or your soon-to-be-ex?) Also, additional experts may be needed, from child psychologists to business valuation experts, depending on your situation.

Coming Next: Part Three: What to Expect in the Initial Consultation.