Consistent with our mission statement, the Criminal Law Section (CLS) provided educational seminar programs and materials to our members, and for the first time, placed materials on the CLS website for all State Bar of Michigan members to download.
Our first program at the State Bar 2001 Annual Meeting was unlike any other, immediately following the tragic events of September 11. The scheduled speakers were unable to attend because airports were closed and all State Bar activities and programs ended at noon on Friday. The slightly-abbreviated program, "Indigent Defense Representation" was one of our most insightful and profound programs ever presented. Panelists who appeared on short notice were: James Neuard from the State Appellate Defender's Office, George Gish, former Court Administrator of the Recorder's Court for the City of Detroit/Third Judicial Circuit-Criminal Division, Joanne Vallarelli, an Ingham County criminal defense attorney, and James Shonkwiler, editor of CLS News and Views.
The panelists delved into the indigent defense funding programs in Michigan. Mr. Neuhard provided an overview of the current and proposed funding levels of indigent defense programs in Michigan as well as nationally. Michigan ranks 48th in the nation in indigent defense funding. Ms. Vallarelli, defense counsel from Ingham County, related how she represented a client in a complex murder trial and was lambasted and ridiculed by a judge who refused to approve any extraordinary costs for her services. Former court administrator George Gish indicated that court administrators were able to cut the fees for indigent defense representation, knowing that the attorneys would still vigorously represent their clients, and further that they are ethically bound to do so. Jim Shonkwiler, former Executive Director of the Prosecuting Attorneys Association of Michigan, speaking as an appointed member of the Indigent Defense Task Force, reiterated that the entire justice system benefits from equitable indigent defense representation.
Our second program, held at the Mid-Winter Ski Conference at Shanty Creek, had record attendance. Timothy A. Baughman, Chief of Research, Training, and Appeals for the Wayne County Prosecutor's Office, provided the Shanty Creek traditional conference opening program—an overview of all noteworthy significant appellate decisions from 2001 through February 2002. The second day of the program addressed, "Why Go to Trial If You Don't Have To? Effective Pretrial Strategies for Practitioners" and "Demonstrative Evidence." Noted criminal defense attorney Steven Fishman presented a plethora of pre-trial motion examples that had been effectively utilized by practitioners. Hon. Timothy M. Kenny, Chief Judge of the Third Judicial Circuit Court Criminal Division, provided a thorough judicial perspective of appropriate pre-trial motions and resolution of issues and cases before trial. Matthew Smith, program chair and criminal defense attorney, and Grand Rapids criminal defense attorney John Beason closed the conference with a presentation on demonstrative evidence, "Trial on the Cheap."
The council implemented initiatives from the Grand Hotel Spring Biennial Conference held at Mackinac Island in May of 2001. In a historic overture, State Bar President Bruce Neckers attended our Criminal Law Council meeting in December of 2001 in order to establish dialogue, solicit ideas, and further one of his main issues: defense delivery systems. With our input, he wrote an article advocating change and uniformity in defense delivery systems in Michigan in the January 2002 Michigan Bar Journal.
One of the council's goals' is to encourage input and action from other groups, including the State Bar. This resulted in passage of a resolution on April 27, 2002, by the State Bar of Michigan Representative Assembly. The Representative Assembly adopted the recommendations of the Defender System and Services Committee, State Bar of Michigan Task Force on Defense Delivery and Quality of Public Defense Services in Michigan. The council liaison and committee chair, Norris Thomas, Jr., of the State Appellate Defender Office, worked closely with Bruce Neckers, State Bar president, to ensure that this resolution was adopted by the State Bar.
Following through on Mackinac Conference initiatives from June 2001:
- Reactivate the Sentencing Guidelines Commission pursuant to statute.
- Restore appropriate judicial discretion for drug offenses by reviewing and limiting mandatory penalties.
- Develop parole guidelines that complement the sentencing guidelines and respect the minimum sentence imposed by the court.
- Identify a mechanism to permit judicial review when parole board policies operate to undermine the intent of the sentencing judge.
- Refine requirements of the sex offender registry to ensure that it only includes individuals who are sexual predators by eliminating CSC4 violators and re-examining its overall operation.
The Mackinac proposals were referred to the newly established Policy Committee (co-chaired by Hon. Vera Massey Jones and Michael Brady) and the Legislative Committee (chaired by Sherrie P. Guess) for recommendations on how to accomplish action by the CLS. The council formally requested reinstitution of the Sentencing Guidelines Commission, however, the legislature declined to re-establish it.
The council voted to proactively propose legislative initiatives to the legislature. With respect to the council's vote to support HB 5163 repealing certain provisions of the sex offender registry, the council additionally urged that this bill amendment be expanded to include revisiting the age of consent, exclude consensual acts between two minors, particularly when only the male minor is typically charged, and to clarify ambiguity with juvenile and Holmes Youthful Trainee Act (HYTA) laws. An almost bizarre aspect of the Sex Offender Registry is the interpretation that juveniles are only exempt for the period that they are juveniles. Once they reach the age of majority, they are then placed on the sexual offender registry for life, and defendants who avail themselves of the HYTA also are placed on the registry, despite the contrary provisions of the Act.
The council voted to oppose SB 733, 734 which would allow a hearsay exception for domestic violence crime victims' statements. Unfortunately, the proposed bill did not contain adequate procedural safeguards necessary to prevent abuse. While the drafters intended to aid crime victims, the proposed exceptions were not allowed in murder cases and MRE 404b had adequate provisions to allow similar acts into a trial. The proposal would legislatively amend the court rules and the council has opposed legislative efforts to become involved in the promulgation of court rules and matters of procedure that lie within the province of the courts.
The 25th Donald S. Leonard Award was presented to Michigan State Police Sergeant Lance R. Cook of the MSP Traffic Services Division. The Donald Leonard Award is presented by the CLS to a Michigan State Police officer who has excelled in the pursuit of continuing education. The award was established in 1977 in memory of Hon. Donald S. Leonard (1903-1976), a Detroit Recorder's Court judge and Commissioner of the Michigan State Police from 1947-1952. Judge Leonard had a life-long interest in the continuing education of law enforcement professionals. This year's Leonard Award was presented to Sergeant Cook, who received his B.A. summa cum laude from Saginaw Valley State University and then maintained a 4.0 G.P.A. throughout his M.S. studies at Central Michigan University. Sergeant Cook has acquired over 5,000 hours of in-service training during the course of his law-enforcement career and is an instructor at the MSP on a number of different subjects. The award was presented at a Michigan State Police ceremony.
Pursuant to an amendment of the Criminal Law Section bylaws, approved by the general membership in September of 2000, section dues were raised from $15 to $20; the increase took effect for the 2001-2002 dues calendar year. With the reorganization and budget constraints at the State Bar, it appears that the slight increase in dues is offset by the increased benefits and services the CLS provides to our members.
The Biennial Summer Conference was held June 7-8 at the Eagle Crest Conference Center in Ypsilanti. It featured "Search and Discovery of Computer Records; Computer Crimes and Searches" with Richard S. Murray, assistant U.S. attorney-Western District of Michigan, Hon. Kirk Tabbey of Ypsilanti District Court, and James E. Phillips, an Ohio attorney who is nationally known for his articles and speeches on the topic. Forfeiture was addressed by the panel of Professor Gary Maveal of the University of Detroit Mercy Law School and Thomas Capezza, assistant U.S. attorney-Eastern District. Pretrial detention was addressed by John O'Brian of the U.S. Attorney's Office-Eastern District and former chief assistant in the Oakland County prosecutor's office.
Finally, the section is publishing its first annual Criminal Law Journal in the fall of 2002. The February 2003 Michigan Bar Journal has been designated as the criminal law theme issue. Co-editors T. Lynn Hopkins and Kimberly Reed Thompson are assisting editor Karen Woodside with both the publication of the annual Journal and the theme issue of the Michigan Bar Journal.
The 2002 Annual Program in Grand Rapids will address immigration law and federal and Michigan anti-terrorism statutes. Immigration issues will be addressed by Hon. Elizabeth Hacker, INS administrative law judge, Marsha K. Nettles, district counsel for INS, and Marshall Hyman, INS defense counsel. An unconfirmed presenter from Grand Rapids will address migrant and immigration issues. Assistant Chief U.S. Attorney Alan Gershel and Wayne County Assistant Prosecutor Karen Woodside will address federal and state anti-terrorism laws.
Thank you to the many people that helped in any way to make the 2001-2002 year so successful. It has truly been an excellent year for the section and for the practice of criminal law in the state of Michigan!
Karen Dunne Woodside, Chair