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Bar Briefs March 2006
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Bar Briefs
March 2006 • Volume 24 • Number 09

From the President
"The Rocket Docket " by Kathy J. Vogt

From the Executive Director

"Traditionalists Featuring John Potvin "

by Rick R. Troy

Circuit Court Corner by Keith Beasley

Elder Law
"Deficit Reduction Act of 2005 " by Alan Polack

Centennial Article
"Macomb County Bar Association During the Depression
Years "

by Lawerance Katz

Legal "Aid"
"A Call to Action" by Julie Gatti

From the YLS Chair
"MCBA Membership Has Its Privledges "
by Mark Pellecchia, YLS Chair

From the YLS

"The Changing Face of Criminal Law "
by Jarrod Flemming


From the President
"The Rocket Docket" by Kathy J. Vogt

It appears that the Supreme Court has decided that all of our courts need to be on the Rocket Docket.

Have you noticed that you can no longer waive district court arraignments by mail? We now have arraignment/pre-trial dates. The reason, I am informed, is the Supreme Court’s mandate that district courts must complete their criminal cases within 91 days from arraignment. It may seem that having pre-trial with arraignment is an inconvenience, but by doing so the courts are able to grant adjournment of pre-trial without triggering the 91 day time limit. This means we must get our discovery requests in early and be prepared to plea or set a matter for trial on the first appearance. The Supremes are cracking the whip to ensure that justice is administered in a timely fashion!

The circuit court has also received mandates as to how quickly cases should be resolved. Ninety percent of all felony cases should be adjudicated within 91 days from the date of bind over; 98% within 154 days; and 100% within 301 days. The prosecutor’s new no plea policy certainly does alleviate the complications this deadline creates.

Ninety percent of all divorce cases without children should be resolved within 91 days from date of filing; if children are involved, then 245 days. Under no circumstances should a divorce case exceed one year.

Civil matters are given much more latitude: 75% should be adjudicated within 364 days; 95% within 546 days; and 100% within 728 days unless there are exceptional circumstances.

It seems that expediency has become the true measure of justice, at least from the Supreme Court’s point of view. I question whether any of our justices ever actually practiced law. Obviously, none of them were ever solo or small firm practitioners.What is magic about 91 days to completion? Do we truly need a “rush to judgment” on every case? If this creates a problem for attorneys in handling their caseload, just think how it affects our clients. How do we explain to our divorce clients that they can’t have an adjournment to attempt reconciliation or work out a settlement on their own because their allotted court time is up? How do we tell our criminal clients that the prosecutor is not offering a plea and the judge must clear his docket, therefore we are going to trial, ready or not?

It appears our Supreme Court Justices have determined that the judges of our district and circuit courts must put expediency before the public they are to serve. If closing cases and keeping a clear docket is how we measure justice, then we need to take a long, hard look at where the justice system is headed. By the way, when is the last time a case processed through the Supreme Court in less than 91 days?

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From the Executive Director
"Traditionalists Featuring John Potvin "
by Rick R. Troy


It was my great privilege to meet with John Potvin, one of only four people to serve you as both an MCBA and MCBF president. As with my many other conversations with members of this august association of lawyers I was genuinely impressed with Mr. Potvin’s depth of integrity and heartfelt love of the profession of law.
As part two of this five part series on the generational differences that exist for the first time in the profession, it is my
pleasure to share with you my conversation with John Potivn, P#19048


How do you define success?
Success is the feeling that comes with accomplishing something that is not done out of necessity but from something that you choose to do. It is achieving a challenging goal that you have made for yourself. When you look back and see what you’ve accomplished, knowing that you have completed it within the highest of ethics, you know that you’ve reached success.

What have been your greatest accomplishments?
First and foremost being able to have a happy family. My first wife passed away so I had that family and then I remarried and I have a second family. When you put them both together I’ve had 40 years of great family life. At the same time I am still working with what I love to do, practicing law, so to me the combination of family and profession is my greatest accomplishment and it gives me a great feeling.

What attracted you to law?
My father was a lawyer and I think that anyone that grows up with a parent as a lawyer considers the profession while growing up. Needless to say that’s all that you grow up with.
Who Are You

Traditionalists
Born prior to 1946 75 million Americans
Patriotic, fiscally conservative, hard working, loyal to institutions, reverent to authority, hierarchal leadership, person to person networking, participates at the table, regular attendance.


Baby Boomers
Born 1946 – 1964 80 million Americans
Optimistic, idealistic, competitive, driven by a desire io leave their mark, has a love/hate relationship with authority, comfortable with leadership by consensus, person to person networking, participates at the table, regular attendance.

Generation Xers
Born 1965 – 1981 46 million Americans
Independent, entrepreneurial, adaptive to change, skeptical of institutions, balanced work ethic, unimpressed with authority, leadership by competency, networks via email, participates by paying for access, networks for educational value, occasional attendance.

Millennials
Born 1982 – 2000 76 million Americans
Techno-savvy, collaborative, realistic, judges institutions on their merits, optimistic, energetic towards work, respectful of authority, welcomes leadership by achievement, networks for the education value by email and web forums, participates by paying for access, attendance based on perception of the cause.

Did you witness the rigors of a lawyer’s life growing up?
Yes, and what you have to realize is that the way he practiced law back in those pre war years is a lot different then the way law is practiced these days. I think just seeing my Dad practice, the success that he was having and the joy it brought him, it made sense for me to go into law.

What influence did your mother have on your life?
The influence of my Mother is, in a word, family. She made sure that everyone, from a very young age, adhered to what all parents want for their children; to excel in school, to have high morals and values and to respect adults.

What influence did your father have on your life?
Professionally, his influence as a lawyer and the way he worked at it instilled in me a work ethic and a desire to help people. From a personal viewpoint he was a Dad that was very active with us kids. He promoted sports and attended the sporting events we played in.

What was your sport?
Football was my sport. I played fullback in high school and college. I have a bad back that still haunts me today!

What natural talents do you have that have helped make you so successful?
I think that I was born with a personality that enables me to work with people. It has carried through in life and has served me well in the practice of law.

What have you learned from your life experiences?
I learned that the only way to be successful in the practice of law is to work at it and put the time in. No matter what you do, if you are going to be successful, you have to put a lot of time into it. I first learned this from my Dad as he was a sole practitioner, which it made it easier for me because by the time I got into law I knew what it took, including the long weekends.

Do you see younger lawyers putting that kind of time into the practice, those long weekend hours, as much as when you started out?
Actually, I do. Perhaps because I have a large law firm perspective, being with Plunkett & Cooney, I do see it. I remember last summer telling my wife how lucky we are that we were not married during law school or right after I got out of law school because today these young lawyers are putting in more time than ever. Our firm library is busy every Sunday. Firms are very competitive and I don’t even want to think where I would be if I started out today.

What values do you personally hold in highest regard?
Honesty. When a handshake is your word, your bond. Today, everything seems to be contracts, you have to cover yourself with a paper trail. I hold this type of honesty in high regard. If you can have that kind of reputation, you can’t ask for much more.

Other than parents, who is one of your heroes and why?
I don’t have any particular hero that I have watched or worshipped in life but the type of person that I admire is someone in the category of a Harry Truman or Ronald Reagan. People that are of their own mind and conviction and have shown the courage to work hard to accomplish something because they believe that it’s the right thing to do. People who are not swayed by anyone and who take responsibility. That’s the kind of person who to me, is a hero.

What magazine, newspaper or journals do you read on a regular basis (other than Bar Briefs)?
My wife is an avid reader and as a result we get more magazines in the mail than the mailman can deliver in a day! Probably the one I read the most is Time magazine. From a professional aspect, I regularly read the firm’s newsletter and the State Bar Journal.

What internet sites do you frequent?
None really. When I do use the Internet it usually has to do with the firm.

What are you favorite books?
I’ve enjoyed several books on President Abraham Lincoln. I’ve always enjoyed the civil war period. When I was in the military, particularly the JAG school in Virginia, I was surrounded by the civil war history, and I’ve been interested ever since.

What are you favorite films?
I really enjoy documentaries.

What is your biggest concern about life on the planet?
I think the real concern is that the world is getting so large. It just seems that it is difficult to be able to get along with everyone, to have a sense of security, of accomplishment and good will, it’s hard to get to. The whole world is constantly in conflict. You have to think about your children and grandchildren and think about what the world will be like when they are adults and have kids, you have to hope that the world is not one where everyone is fighting against everyone like it seems it is today. It just doesn’t seem to be a happy world anymore.

What is fun for you?
Travel. Happily I’ve been able to travel the last few years. We’ve been able to visit Europe, South Africa, Hong Kong, China, Australia, New Zealand…. my wife and I just really love to travel getting to know the culture of the places we visit.



John Potvin
John F. Potvin is a partner with the law firm of Plunkett and Cooney and practices out of their Mount Clemens office.

Mr. Potvin is a former Commander of the 106th Judge Advocate General Detachment and served in the Army Judge Advocate General Corps for over 25 years. He is a past president of the Macomb County Bar Association, the Macomb County Bar Foundation and is an active member of the State Bar of Michigan Military Law Committee. Mr. Potvin also attended the Judge Advocate General School in Charlottesville, Virginia.

Professional Memberships
Macomb County Bar Association (President 1995-1996)
Macomb County Bar Foundation (President 2000-2002)
St. Clair County Bar Association
State Bar of Michigan
Michigan Defense Trial Counsel
Michigan Land Title Association
American Bar Association
American Law Firm Association
Defense Research Institute Other Memberships (Past and Present)
Reserve Officers Association
U.S. Army Reserves (Judge Advocate General Corps and Former Commander 106th JAG Detachment)
Knights of Columbus
DeLaSalle Collegiate High School Board of Trustees (Past President)
Central Macomb Chamber of Commerce Academic Background
Preparatory Education: John Carroll University (B.S.S., 1958)
Legal Education: University of Detroit School of Law (J.D., 1964)
Judge Advocate General Staff College
Fraternity - Delta Theta Phi (Tribune) Admission to the Bar - 1965, Michigan


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Circuit Court Corner by Keith Beasley, Court Administrator

Integrated Computer System Project
The project is quietly proceeding. The Probate Court had its “go live” on the Court View integrated system on February 21, 2006. The next big project is adding the Prosecutor to the system.

Electronic payment of money owed to the Court is one of the enhancements that we hope to add to the system soon. This would allow litigants who owe money on cases to check balances owed on the Internet and make payments. We believe it will be a big step forward towards more electronic commerce and better customer service.

Another electronic commerce idea with great potential is electronic filing. The Michigan Supreme Court’s Judicial Information Systems demonstrated an electronic filing process that it has developed. The process is being used already in some courts. In Macomb County, the Eastpointe District Court is utilizing it. There is a “chicken and the egg” problem with electronic filing. There does not seem to be much interest from practicing attorneys. I would like to work with the Macomb County Bar Association and County Clerk/Register of Deeds Carmella Sabaugh to develop this worthy approach. I think it would be outstanding to reduce the personal filing of complaints and long lines by encouraging electronic filing, with the potential of filing documents any time, day or night.

Assessment of Defense Costs at Sentencing

I feel like I’ve been writing about this too much, so I apologize in advance if you’re tired of it. Rick Troy tells me he keeps getting questions. So here goes. Assessment of defense costs at sentencing does not relate to the determination of the amount counsel is to be paid. You can get paid more than the defendant is ordered to repay. You probably haven’t thought much about the expense of appointed counsel for the taxpayers of Macomb County. Macomb pays approximately $3 million a year for indigent defense costs, just in Circuit Court felony matters. Yet, defendants are not entitled to “free” counsel from the taxpayers. They can and should be expected to reimburse all or a part of the cost of representation, consistent with their ability to repay. Case law indicates that defendants should be given notice of the expectation that they repay, are entitled to know how much is sought and have an opportunity to be heard as to their ability to repay before an amount is assessed. This is best achieved by assessing an appropriate amount and entering a judgment at sentencing, when both the defendant and counsel are present and are able to address these questions. The judge can exercise his or her discretion on the appropriate amount to be repaid. So, in order to know the total amount of defense costs before sentencing, we have been asking counsel to submit a billing at least a week before sentencing.

Debit Card Program

In March, 2006 the State Disbursement Unit, (MiSDU) will roll out the Debit card program to Macomb County.

What this means is all payees that receive child support through Macomb County will be required to receive their support monies through direct deposit account or debit card. The State has provided posters to display in the office and will notify payees that currently receive checks. Once a debit card is issued, money will be added to it as received, eliminating the need for paper checks.


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Elder Law
"Deficit Reduction Act of 2005 " by Alan Polack

The United States House of Representatives passed the Deficit Reduction Act of 2005 (DRA) by a razor thin margin of 216 to 214 on February 1, 2006. President Bush will sign the Act into law on February 8th. DRA virtually eliminates gifting as a preplanning technique for Medicaid qualification by changing the date of the divestment penalty from the month of the gift to the month of application for Medicaid. In other words, an individual admitted to a nursing home and spent down below $2000 will trigger a penalty period for any gift made within 60 months prior to applying for Medicaid as soon as that person submits a Medicaid application. For example, Grandma Deadlock gives $50,000 to her grandchildren in February 2006 while she is in good health. She has a severe stroke in 2008 and enters a nursing home. She has enough assets to pay for her care for 6 months. She applies for Medicaid in February 2009. At the time of application she has her homestead, prepaid funeral plan and $2000 in her checking account. She cannot get Medicaid because the state must assess a disqualification penalty for the gift made in 2006. That penalty is loss of eligibility for Medicaid benefits for 8 months. Grandma’s nursing home is now in a position where it can’t be reimbursed by either her or the state for that 8 month period. This will probably force Grandma’s family to sell her homestead to pay for her care. Unfortunately, the difference between the cost of the 8 months of care and the sale price of the homestead will create a new spend down for Grandma.

Some other important provisions of the Act are: (1) If your homestead is worth more than $500,000 you are not eligible for Medicaid at all. States do have the option of raising this ceiling to $750,000; (2) Community spouses (well spouses married to sick spouses) can still purchase irrevocable immediate actuarially sound annuities to shelter excess resources. The new law does not require community spouses to name the state as a beneficiary of their annuity; (3) An annuity purchased by a single person residing in a nursing home must name the state as a primary beneficiary; therefore, the annuity would work in much the same way as a Medicaid payback trust for disabled people under the age of 65; (4) The so called “serial divestment” has been eliminated in that all gifts are going to be added together to compute divestment penalties; (5) The “round down” rule has been changed to eliminate large monthly gifts; and the “look back” period has been extended from 36 months to 60 months.

It is going to take the State of Michigan some time to absorb and implement these rules. The folks at the Michigan Department of Community Health in Lansing are working on new rules as we speak. Unfortunately, it does not seem possible to advise clients to make gifts that may disqualify them for Medicaid when they need it. It is still possible to do some gifting after admission to the nursing home but the exact procedure has to be carefully considered.


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Centennial Article
"Macomb County Bar Association During the Depression "

From its formal inception in 1906 until 1941, the Macomb County Bar Association remained a small, loosely-knit collection of general practitioners. In the first 35 years leading to World War II, these men -- 50, more or less -- handled virtually every legal issue arising in Macomb County. About two-thirds practiced in the burgeoning city of Mt. Clemens. These included prominent attorneys George and Martin Crocker, Silas B. Spier, Oscar C. Lungerhausen, Robert F. Eldredge, and Clarence and Bert Nunneley. The rest of them – sometimes no more than one or two in each city or township – resolved every other legal conflict arising within the county’s vast expanse from Armada to Warren. Living and working in mostly rural communities, they learned to “specialize” in whatever problem walked in the door.

In many communities, routine disputes and petty crimes were heard in Justice of the Peace courts. There, judges who often were not lawyers decided cases with less formality than the municipal and district courts which replaced them. (It was not until the 1963 Constitution was adopted that judges were required to be lawyers and the Justice of the Peace court system was ended.)

On the county level, lawyers in this first era of the formal bar did not need the blind-draw system: Circuit Judges sat alone. In chronological order, Macomb County Circuit Judges were Byron R. Erskine (1906-1910), Henry J. McKay (1910-1911), James G. Tucker, Jr. (1912-1923), and Clarence Reid (1923-1943).

The county bar evolved slowly over the past century into the organization it is today. In those early years, meetings were not always held regularly and the focus was primarily on social activities rather than on educational or community service programs. It would take decades before the Association had its own office, and meetings back then were held in law offices, homes, restaurants and taverns. The lack of a central location naturally slowed the sense of organizational identity. It also resulted in the loss of much of our recorded history because, with no single storage facility, each president generally retained the meeting minutes in his personal files. Inexplicably, those presidents rarely passed these on to their successors.

Macomb County lawyers from this era have recounted tales of the practice of law from the turn of the Twentieth Century until the attack on Pearl Harbor. One story has it that during Prohibition days, a well-known MCBA member represented a client accused of bootlegging. He held up a bottle of whiskey received as evidence and said, “I know something of whiskey, and this doesn’t look like whiskey, nor does it smell like whiskey.” As he brought the bottle up to his mouth, he asked, “Your Honor, may I?” The judge nodded, and the attorney drank the entire contents. Slamming the empty bottle on the table, the attorney moved to dismiss for lack of evidence. The motion was granted.
Another Macomb County attorney, known for his flamboyant and dramatic style, told the jury in closing: “Just think, gentlemen of the jury, this agrarian was on his way to market, a happy man, thinking about the money he would get for the 12 pigs he had raised from piglets. Each weighed 300 pounds, a ton and a half of meat. He was full of hope and dreams. Along came the D.U.R. streetcar, just where the track crosses the road, ran into his wagon, demolished it, and killed all 12 pigs, shattering his hopes and dreams. Just think, gentlemen of the jury—the same number of pigs as there are on the jury.”

During the years of the Great Depression, Macomb County Bar members – like those everywhere – struggled to support their families in the practice of law. Stories abound of lawyers playing cards and ping pong waiting for new clients, and then pretending to be busy as they walked in.

Two years into the Depression, the 40-year old 1880 Macomb County Courthouse was replaced by a new building to house the circuit court. Michigan governor Wilber M. Brucker led the officials present in the intense heat of July 1, 1931, as the cornerstone was laid for the new Macomb County Building on the corner of Gratiot (North Main) and Cass Avenue. The program featured a flyover from Selfridge Field and music by the Armada Band. The ceremonies took place before a large crowd on a platform erected at the southwest corner of the courthouse site, with the skeleton of the new building as a backdrop. Sealed into the new cornerstone vault were some newspapers and business cards from the old cornerstone vault; 1931 county newspapers; membership rosters of civic groups; photographs of the old courthouse; a set of plans for the new Macomb County Building, and a photograph of architect George J. Haas.

Construction began aggressively but the ravages of the Depression soon engulfed the County and its funds had evaporated by February of 1933. Contracts for the new 13-story building were voided and construction was halted for several months, leaving the top eight floors unfinished -- a monument to the nation’s economic failures. On June 5, 1933, a dedication ceremony was held for the unfinished structure and county officials moved out of rented quarters to occupy the available lower floors. Work continued sporadically as contractors were paid from modest tax revenues and about $50,000 in federal New Deal funds. The project was not completed and declared debt-free until 1944.
Circuit Court facilities moved out of the building and into its current home, our Macomb County Court Building, in 1970. However, the 1931 edifice, now known as the Old County Building, remains in full government service.

Membership in the Macomb Bar, as in every male-dominated profession, declined dramatically with our entry into the Second World War. Only when veterans returned from military service, joining a new crop of young lawyers fresh out of law school, was the roster of the Macomb Bar restored to its former numbers.

Even then, it took another fifteen years before the ranks of the Macomb County Bar Association grew to as many as 75.


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Legal "Aid"
"A Call to Action " by Julie Gatti

If you read this column, you know that last month it featured our colleague lending a hand at a homeless shelter. I was puzzled by the fact that he downplayed his actions and asked the question, “If it’s just that simple and consumes such a small amount of time, why haven’t I done it?” Maybe you asked yourself the same question.

Well, now’s our chance, Macomb County Bar. Get out your Blackberry, calendar, Palm Pilot or Post-It. Write this:
Sunday, April 9, 2006, 11:30 a.m. – 3:30 p.m., First United Methodist Church, 57 Southbound Gratiot at Cass, Mount Clemens.

We’re buying, preparing, cooking, serving, and cleaning up a good hearty meal for Macomb County’s least fortunate. Even if you can only spare an hour or two, you’re more than welcome. If that Sunday poses a problem, perhaps you could help me a day or two beforehand to shop for the food, or donate a few dollars to help buy it. Let me know at (586) 216-4155 or e-mail me at jurisjulie@aol.com. Maybe it is just that simple.

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From The YLS Chair
"MCBA Membership Has Its Privledges " by Mark Pellecchia, YLS Chair

MCBA membership has its privileges. For the young lawyer, 35 and under or those that have been practicing 5 years or less, the privileges are even greater. As young lawyers we benefit from reduced dues. For young lawyers practicing 3 years or less, membership is only $7.50 a month. Those practicing between 3 and 10 years the cost is $10.50 per month. The MCBA Board of Directors is currently engaged in a new member recruitment program. As chair of the young lawyers I ask our young lawyer members to help spread the word to non-members about the benefits of membership. You may be asked, is membership worth the price! Well, here are just a few reasons that the answer is yes.

Membership has many FREE benefits. FREE Bench Bar conference scheduled for April 1, 2006 at 8:30 a.m. FREE Annual Dinner/Elections night on April 20, 2006 at 5:00 p.m. at Fern Hill Country Club. FREE Bar Briefs monthly publications. FREE access to the MCBA website and its many member access only features.

Membership provides discounted Continuing Legal Education seminars. There are three upcoming seminars and usually about seven throughout the year.

1. Juvenile Sex Offender Re-entry Program, Dealing with Youth Sex Offenders in Juvenile Court. The speakers include therapists, Dr. Conrad Aumann and Robert Schumann; prosecutor Kerry Bradford; probation officer Sandra Gutierrez; and defense counsel Steven Donovan. The seminar is scheduled on Monday, March 13, 2006, at the Macomb County Circuit Court 5th floor jury room from 12:00 p.m. until 2:00 p.m.
2. Computer Forensics: Understanding Forensic Evidence and Its Use in Civil, Domestic and Criminal Law. The speakers include from Advanced Surveillance Group, Paul Dank and Kevin Ripa; and attorneys Felice Iafrate and Brian Legghio. The seminar is scheduled on Monday, March 27, 2006, at the Macomb County Circuit Court 5th floor jury room from 12:00 p.m. until 2:00 p.m.
3. Avoiding Common Pitfalls in Criminal and Civil Litigation Cases. The speakers are the Honorable Richard Caretti and the Honorable Edward Servitto. The seminar is scheduled on Monday, May 22, 2006, at the Macomb County Circuit Court 5th floor jury room from 12:00 p.m. until 2:00 p.m. Membership saves you approximately $20 per seminar.

Membership provides discounted bar related events. Those include dinner meetings sponsored by the MCBA and Young Lawyers section, golf outing, boat outing, and other Bar functions. Membership saves you $5 to $10 per event.

Membership provides discounted enrollment in the Lawyer Referral Service of the Macomb County Bar Association. The program enrollment covers one year of new clients being referred by the MCBA. Each Attorney selects the type of cases, i.e., divorce, criminal etc… that each wants to receive referrals. The cost for members is $175 which is half price. Membership saves you $175.

Membership provides discounted items at numerous stores and services. For example conference calling and credit card merchant accounts are available at discounted prices. Membership can save you hundreds of dollars on goods and services when you use the Member Mall on www.macombbar.org.

The MCBA has its priviledges and is beneficial. In many cases it pays for itself. I have been a member of the MCBA since becoming a lawyer and continue to be an active member. The young lawyers are promoting a Spring Social dinner celebration with all proceeds going to the Warren Drug Court. The event is scheduled for March 30, 2006 at 5:00 p.m. at the Warren F.O.P. Hall located on 14 Mile Road east of VanDyke and west of Hoover with special guest DJ Steve Steinhardt. Tickets can be purchased from any member of the Young Lawyers Board or at the MCBA office.


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From the YLS
"The Changing Face of Criminal Law " by Jarrod Flemming

When I got hired in my first job as an attorney about half of my week was spent prosecuting misdemeanor cases in district courts. I was given a few hours of training in the courts, learned about "standard pleas" for first offenders such as the Impaired, 7411 and all mighty plea under advisement and told to use my best judgment and discuss the case with the officers in deciding what to offer as a plea. The other half of my time was spent on all kinds of other municipal, family, tort and criminal defense matters. Some people think that criminal work is typically easy, while those of us who practice it on a regular basis know that to do it right takes hard work, preparation and a willingness to try cases whether you are a prosecutor or defense attorney.

So why must we have these sweeping "reforms" dictated from those up on high who do not battle in the trenches every day as we do? Why were we never asked for input? Why are the district judges almost uniformly opposed to the new changes from the SCAO yet they are ignored by their brethren in the appellate courts and SCAO?

I saw the winds of change coming in 1999 when the long standing precedent of the reasonable time requirement for administering a chemical tests in drunk driving cases was overturned by the Supreme Court in an opinion which still does not make much sense to me and flatly overturned 20+ years of well established and respected precedent. Now prosecutors are allowed to submit largely flawed evidence to juries due to other similar cases decided since then. In most other states, the evidence would be precluded due to scientific reliability and legal safeguards.

Effective January 1, 2006, the “plea under advisement” has been killed and buried. This means everyone over 20 who makes an honest mistake and gets charged with a misdemeanor has to plead to something that will go on a criminal history or take their barking dog, disorderly or other minor indiscretion to trial wasting the time and money of clients, courts, attorneys, witnesses and juries. Every other state I have heard of has some sort of pretrial diversion programs for first offenders, whether it is strict or liberal, whether it is called a "pretrial diversion," "non-adjudication," "under advisement" or any other myriad of terms. This reform will now result in more convicted criminals in this state than the majority of others.

As for the issues regarding preliminary examinations and the senselessness of this proposal, I will echo Carrie Fuca's comments a few months back. I could not have said it better myself. For an interesting dialogue on the subject, there is a Michigan Bar Criminal Section forum that gets quite lively for those of you who are interested.

The other reform problem is pushing through too speedy of trials. Often times, I adjourn cases because I have not been provided with videos, pictures, recordings, chemical analysis, calibration logs and other evidence not typically attached to police reports. It is not uncommon to be met with resistence in obtaining this information. Given the fact that prosecution violations of MCR 6.201(F) are rarely met with harsh sanctions, such as preclusion of evidence until the violation continues to a motion or some other close to trial cut off date, defense attorneys are going to be rushing to prepare for trials or getting evidence reviewed and motions filed thereby compromising our clients' interests. This is clearly not in the best interests of justice or our goal as attorneys to maintain a system that people can have confidence in.
Finally, why is the trend not to let prosecutors think for themselves? Macomb County Prosecutors as a whole group are good legal analysts, compassionate when appropriate and good at judging the strengths and weaknesses of their cases. Not every case is a slam dunk and not every Defendant is guilty. Our prosecutors used to have the ability to look at each case on its unique facts, assess the character and veracity of the defendant and complainant, how the charge was authorized (namely was it an overcharge?) and make a judgment call. These are prosecutors who were hired for their skills not just in court, but in making good judgment calls. Now every deal to a reduced charge where the defendant has a prior felony or other certain enumerated felony offense must go through a process that has proven to be time consuming for defense attorneys in order to reach a result that was previously done with much less stress and with similar outcomes.

I urge all defense attorneys to stick together and fight to repair the system. All these "reforms" have accomplished thus far is to make it much more difficult to protect the rights of our clients.


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