Thursday, March 31, 2016

Pre-trial "freeze" of assets violates the 6th Amendment, says Supreme Court

Imagine if you will: a person who is suspected of a crime, and may have had some income from that crime, is being investigated as a suspect. Federal authorities were allowed to "freeze" that suspect's assets, including bank accounts, and other things. It was essentially a way to make sure the asset (if connected with the crime) would not be used by the defendant, in case there was restitution ordered (or so a prosecutor would argue). 

A federal law that allows courts to order pretrial freezes on assets that are untainted by crime violates the Sixth Amendment rights of defendants who are unable to pay their lawyers, the U.S. Supreme Court has ruled in a 5-3 decision.

The court ruled (PDF) Wednesday on behalf of Sila Luis, who was charged with Medicare fraud. The government obtained a pretrial order freezing $2 million in assets in hopes of preserving the money for restitution and penalties. The order was obtained under a law that allows pretrial freezes on assets that are tied to a crime, as well as assets “of equivalent value.”

The “equivalent value” provision is unconstitutional to the extent it prevents the defendant from paying her lawyer, the Supreme Court found.
Article here (via aba journal). 

Decline in law school enrollment leads to "survival of the fittest," according to law prof

Thinking of law school in the Midwest (aka "Rust Belt" states?) Your potential law school is working hard to get your tuition dollars, and that is because enrollment in law school is way, way down.  Some law schools have opted not to admit students for certain terms (in other words, forcing a larger class in September and January, but have no new students in May). Others have lowered admission standards, and some have done both.

Article here (via aba journal).

Many law schools in the region (of the "Rust Belt") are trying to survive by admitting larger numbers of lesser qualified applicants, theorizing they need to hold on until conditions return to normal. But the new normal consists of “shrinkage, adaptation and inter-law school competition that is likely to become even more challenging over the next five to 10 years,” Barnhizer writes.
Barnhizer cites six “critical factors” affecting law schools. They are:

1) The Great Lakes and Midwest region is economically depressed. Any partial recovery “will fall short of recreating the base of manufacturing activity that produced a strong upwardly mobile middle class of the kind that sustains high-level educational activity.”

Monday, March 28, 2016

Tax time quiz: Are you likely to be audited?


Sorry,  I didn't mean to scare you.

Something to think about when you file your taxes: if you have something that the IRS might ask questions about, do you have a reasonable explanation for it? Maybe you do, but think about the possibility of being audited.

This article (via taxprof) talks a little about who is likely to be audited: typically the highest and lowest earners.

Something else to think about: maybe you know someone who hasn't paid their taxes. You might be able to get an award for letting the IRS know that he or she hasn't filed. It's called a whistle blower award. The catch is that you might have to wait years to get the award. More information here. One more catch: you need to give information that's more than just a hint, or suspicion that someone isn't paying.

Texting while crossing the street should be a crime, says NJ legislator

Walking while talking or texting on a cellphone can be dangerous, a New Jersey state assemblywoman says.

So Pamela Lampitt wants her fellow lawmakers to make distracted walking a crime, with the same penalties as for jaywalking.

Article here (via aba journal). 

Teenager to be tried as adult for alleged murder of another teenager

One of the two teens suspected in the killing of Michael White, 16, of Wyoming, is being charged as an adult, authorities said.

Carlos Delgado, 15, of Kentwood, is charged with open murder and will be tried as an adult, Assistant Kent County Prosecutor Vicki Seidl confirmed Wednesday, March 23. He was arraigned that morning in Wyoming District Court, she said.

Article here (via mlive). 

Related: Michigan has more juvenile life sentences than any other state.

Friday, March 25, 2016

Facing a misdemeanor? How serious is it: potential penalties from misdemeanor charges

The thing is that a lot of commercials for criminal defense use a "scare tactic" to try and influence you. You know, like the "you just blew $10,000" billboard (which isn't even done by a defense attorney!) But it you are pulled over for driving under the influence (or OWI, etc.) it can be a misdemeanor.

So what does the term "misdemeanor" mean? Why is that different from a felony? Will a felony always be treated as a federal crime?Are misdemeanors not serious at all? Can a felony have a lower penalty than a misdemeanor?

The answer is: it depends.

A misdemeanor can have a variety of penalties attached to it. Same thing for a felony.

Misdemeanors are separated into types. Some types are for violations of a local ordinance. Others fall in the 93-day category, which means the judge can't sentence beyond 93 days in jail, and/or a $500 fine (plus court costs). Other misdemeanors are less than one year. The more serious misdemeanors (called high Court misdemeanors) can have up to 2 years as a possibility. As a result, these are transferred to Circuit Court, as the judges in District court can't sentence that much time (hence the name "high Court"). 

Examples of 93 day misdemeanors are assault and battery, driving under the influence (first offense), and retail fraud. Examples of one-year misdemeanors include larceny (property valued at $200 or more but less than $1,000), retail fraud in the second degree (shoplifting), and intentional discharge of a firearm (but without intent to injure). High court misdemeanors are punishable by up to two years in prison or a fine up to $2,000, or both. High court misdemeanors include indecent exposure and negligent homicide (by vehicle).

Can a misdemeanor have a higher penalty than a felony? Yes, but only in some circumstances. The thing is, the circuit court judge may have a higher sentencing ability (beyond a year), but that doesn't mean that the judge will use the maximum sentence every time. The district court judge, on the other hand, can still go up to one year. So for example, let's use a defendant who is charged with DUI second, which can have a year penalty. District Court judge can give that guy up to a year  in jail, and very well might. Same defendant a few years later would face a felony charge of DUI third, which can go much higher, from 1 to 5 years. But that higher judge might be sentencing less than the district court judge. Just because the higher judge can sentence higher doesn't mean he or she will. 

Thursday, March 24, 2016

The Michigan Driver's responsibility fee is being phased out!

Legal FYI: The driver's responsibility fee is being phased out. If you had a driving conviction, Michigan's Secretary of State would charge a fee related to the conviction, to stretch two years after the conviction.

But now, the law is changing. Starting this year, the fee goes down, then next year the fee is only half of this year, and after that: No more fee!

See related information here.

Monday, March 21, 2016

Considering law school? Want to be a lawyer? Consider this: Which schools charge the most and the least

Columbia University’s law school had the highest annual tuition among 99 private law schools ranked by U.S. News & World Report.

The law school charged $62,700, according to U.S. News & World Report. The lowest-cost of the 99 private law schools, on the other hand, was Brigham Young University’s Clark Law School, which charged only $23,940. Members of the Church of Jesus Christ of Latter-Day Saints got an even bigger break; they were charged only $11,970.

Article here (via ABA Journal). 

Also consider: Before law school.  To enter law school, one has to take the LSAT, a test that's given a few times a year, and get a score that's considered acceptable. You will also have to finish undergrad studies with a fairly decent GPA (although some schools accept "provisional students" who do not have an undergrad degree. Those schools put provisional students on probation until their GPAs show that they can cut the mustard in law school).

Some schools also offer partial tuition scholarships based on the score from your LSAT, and your undergrad GPA.

Graduating from law school. Next, you will have to get through the school's required courses, usually consisting of subjects like Torts, Contracts, Civil Procedure, Constitutional Law, Taxation, Research and Writing, Advanced Writing, etc. etc. (My school required Taxation, and Secured Transactions, often these are not required at other schools). There is usually some level of performance-type classes, like Trial Skills, or Pre-Trial, too. There are other "exciting" elective courses as well, like Moot Court, Family Law, No-Fault Law (have I scared you yet?), Insurance law, and so on. Your school will have a minimum number of required classes, and after that you are free to gambol on the fruited plains to choose your electives. Beware: electives tend to influence you one way or another toward what fields of law you end up practicing.

Applying for the Bar Exam At some point while you are getting your last few semesters finished, you will need to decide where you'd like to practice, and begin applying to those state bars. Several states (Florida, New York, California, for example) have quite strict admissions requirements, and need longer times to begin the process of applying, so don't wait too long.

Applying means telling that state bar  two things: 1. "I want to take your bar exam on ___ date," and 2. "I haven't done anything to disqualify myself from practicing in your state." The second one is also referred to as Character and Fitness (C &F).

Getting through C&F is no joke: It's like the longest and most detailed job application you have ever done. You have to disclose to that state bar any criminal activity on your record, what happened in undergrad and law school for discipline (if anything). It may also include disclosing your job history, your addresses since you were 16, and any number of things. My advice is to always disclose - with explanations. I know people who are now practicing who had criminal convictions before law school, but they disclosed, and explained how things happened, and why this didn't disqualify them from practicing.

Bar Prep. Then you prepare for the exam, and hope that the C&F application is approved. Some takers will use a bar prep course, others will not. I know people who have passed on the first try without a bar prep class (though they are rare). Bar prep is offered by companies like BarBri, Themis, at a cost to each student (scholarships may exist). I used BarBri, and thought it was overpriced, and offered very little "hand-holding" as I prepared. But I did pass my first time.

The exam will consist of every subject you ever took in law school, or almost.  There's a multiple choice portion, the Multistate Bar Exam (MBE), and an essay portion (except in Wisconsin). Michigan's exam, for example, tests the MBE (which used to be 6 subjects but is now increased to 8), and the essays (which can be on 23 possible subjects, but only tests 15 subjects). Depending on your state's bar, there may also be a portion of "performance" on the exam (MPT). Most states have a 2 day exam, others have 3 days.

Then you wait to see if you have passed, once you pass you can be sworn in, and get your license! Congrats you have made it!!

Child Support modifications and arrears: A Michigan Family law Primer

Q: I've been making my child support payments, but sometimes I can't pay the monthly amount due. What happens now?
A: That amount you didn't or can't pay will become an arrearage.

First of all, the obligation to support a child is with both parents. The Michigan Child Support Formula considers the amount of time each parent has with the minor child(ren), the income of the parties, and other factors when calculating support owed. Typically, the custodial parent will be paid support, and the non-custodial parent will be the payor of support, but this isn't always the case, since it depends on income, number of children, and other factors.

Support will typically be ordered during the pendency of a divorce or custody case (before judgment is entered), or if either parent is receiving state assistance. After the judgment is entered, an adjustment may be made to the support amount, and a new UCSO (uniform child support order) will be issued.

Q: What if I think the amount ordered should be different? I can't pay what I currently owe. 
A: You can request a modification of the support amount through Friend of the Court, or through an attorney.

Either party - the parent who pays, or the parent who receives support  - can request modification, if that parent can show a change in circumstances.

Statutes provide a low threshold for modification, based on circumstances of the parents or as the benefit of the children require,[1] upon proper application to the court and due notice to the opposite party,[2] and for proper cause shown or change in circumstances.[3]

A change in circumstance is a fact-based question. It could be the parent has changed jobs, has a medical concern and can't work, and so on. Also, the Friend of the Court can request a modification of the support amount.  

A parent who's income changes should notify Friend of the Court of this change, whether requesting a modification or not. 

Otherwise, if no parties request a  modification, a support review will be done typically every three years. 

Q: I requested a modification and the Court agreed with me. What's next? Will this take care of the arrears I owe? 

A: The modification has to be made into an order. Your attorney can prepare that, or Friend of the Court will send you a copy eventually if no attorneys are involved. 

But typically modifications do not address arrears - they only modify the amount of support going forward.  (This is also referred to as "no retroactive modification of support," see MCL 552.603 (2)).

If the amount of arrears is owed to the other parent, it's possible that parent can forgive the amount of arrears owed. Talk to your attorney about that. If the arrears are owed because the state is involved, since one parent receives state assistance, then the county prosecutor would also be involved.

Q: The amount of arrears I owe is really high. Is there anything I can do about that?
A: Maybe. The Friend of the Court may let you ask for a payment plan on your arrears amount.  Talk to your attorney about discharge of the amount you owe. Again, the parent receiving support has to consent to this as well. 

Q: Can I go to jail for not paying the support amount?

Friend of the Court can enforce support orders through bench warrants, license restrictions (including recreational licenses), withholding tax refunds, among other means. Friend of Court offices can request through "show cause" hearings that the payor make payments, and explain why payments haven't been made, or go to jail. (These are also called OTSC hearings, short for Order to Show Cause).

In addition, the possibility of felony child support non-payment exists.That can happen when the amount owed is in excess of $20,000 (MCL 750.165). At that point, a warrant can issue to arrest the payor of support. Felony child support violations can carry a penalty of 4 year's imprisonment. No laughing matter. 

[1] MCL 552.17 (1): Divorce, separate maintenance, annulment.
[2] MCL 552.45:  Family Support Act.
[3] MCL 722.27 (1) (c): Child Custody Act.

Tuesday, March 15, 2016

Street Court: Grand Rapids's Mel Trotter hosting a Street Court tomorrow March 16

Mel Trotter Ministries is holding the next Street Court on Wednesday, March 16 from 9:30 – 11am.  8:30 is when the clients can come in and have their records looked up, etc.  The actual court starts at 9:30am with Judge: Michael J. Distel presiding.  Feel free to check this out if you would like to and have the time.

Mel Trotter Ministries is located at 
225 Commerce S.W.
Grand Rapids, MI 49503

Monday, March 14, 2016

Michigan Court of Appeals rules: Grand Rapids Noise ordinance is unconstitutionally vague

Attorneys for Tip Top Deluxe, a Grand Rapids bar that was cited for noise violations, argued police issued citations under a section of the Grand Rapids City noise ordinance that is unconstitutionally vague.

Judges at the state Court of Appeals agreed in an opinion released Tuesday, March 8.
The owners and two employees were cited under a city ordinance that reads:
"No person shall use any premises or suffer any premises under his or her care
or control to be used which shall destroy the peace and tranquility of the
surrounding neighborhood."

Article here (via mlive) 

Below is the analysis from the Michigan Bar's e-journal:

Issues: Municipal prosecution for the alleged violation of § 9.63(3) of the City of Grand Rapids Noise Ordinance; Constitutionality; Due process; Vagueness; People v. Lino; Grayned v. City of Rockford; People v. Howell; Vagueness of an ordinance prohibiting “annoying” passersby; Coates v. Cincinnati; Vagueness of an ordinance requiring the production of “credible and reliable” identification to police officers; Kolender v. Lawson; Vagueness of an ordinance prohibiting the use of “indecent, immoral, obscene, vulgar, or insulting language in the presence or hearing of any woman or child”; People v. Boomer; “Disturbance” of the peace; Lansing v. Hartsuff; Whether the use of a reasonable person standard in a noise ordinance is sufficient to give a person of ordinary intelligence fair notice the conduct is forbidden; Plymouth Twp. v. Hancock; Whether a narrowing construction of the ordinance would render it constitutional; People v. FP Books & News, Inc. (On Remand)

Summary: Holding that the plaintiff-city’s noise ordinance was unconstitutionally vague, the court reversed and remanded for dismissal of the citations against the defendants-bar owners and employee.

Ingham County prosecutor charged with solicitation

Ingham County Prosecutor Stuart Dunnings has been arrested and will be charged with seven separate counts, which include five counts of engaging a prostitute. 
11832924-small.jpgIngham County Prosecutor Stuart Dunnings III 
Attorney General Bill Schuette and Ingham County Sheriff Gene Wriggelsworth will speak on the charges 1 p.m. Monday, March 14.

In addition to the five counts of engaging a prostitute, Dunnings faces charges of pandering prostitution and willful neglect of duty by a public officer.

Article here (via mlive).

Supreme Court potential nomination:

One potential nominee for the post vacated when Scalia passed away: federal appeals Judge Sri Srinivasan.

Srinivasan, a former clerk for Justice Sandra Day O’Connor, would be the first Hindu and the first Asian American on the U.S. Supreme Court if he were nominated and confirmed, the Washington Post reports in a story about the Hindu faith. He was born in India and moved with his family to the United States as a child. He was sworn into the federal appeals court on the Bhagavad-Gita, a Hindu holy book.

Article here (via aba journal).

Wednesday, March 9, 2016

Man spent $100,000 with stolen credit cards

Sheriff's deputies say a Detroit man used stolen credit card information to buy $100,000 in merchandise, including $40,000 at Kent County businesses.

Article here (via mlive).

The arrest of Deandre Calhoun, 27, is one of several in recent days by Kent County sheriff's deputies investigating numerous identity-theft and credit card fraud cases, detective Sgt. Ben Cammenga said Tuesday, March 8.

Police say the suspects, from the Detroit area, used stolen credit card information to buy gift cards, iPads, electronic games and other products.

Is the study of law worthwhile? Dr. Johnson's opinions

Is the study of law worthwhile?

“The study of law is copious and generous, and in adding your name to its professors you do exactly what I always wished when I wished you best. I hope that you will continue to pursue it vigorously and constantly. You gain, at least, what is no small advantage—security from those troublesome and wearisome discontents who are always obtruding themselves upon a mind vacant, unemployed and undetermined.” [Letter to James Boswell, Aug. 21, 1766.]

Article here (via aba journal).