2014

October 2014

Why does 54B and 55th District Courts get it wrong and 54A District Court gets it right?

What do I see in 54B and 55th District Courts that I think is wrong in comparison to most district courts?  In those two districts, the best as I can tell, the attorneys prosecuting the cases have a different standard when accessing judges’ chambers than defense counsel.

In 54B District Court, which is located in East Lansing, we generally have two prosecuting agencies, the Ingham County Prosecutor and the East Lansing City Attorney.  Both are good and ethical lawyers and their associates are good lawyers.  But the judges have seen to it, for whatever reason, that at any time, those lawyers can enter the judges’ chambers — through a passcoded door without defense counsel or defendant (in cases where the defendant is represented pro per).

In most situations, and on a regular basis, there are the same defense attorneys at the courthouse.  For example, ASMSU has had Brian Jeffries and Jim Newton represent MSU students for as long as I have practiced law.  The Court also appoints lawyers to represent indigent defendants by contract at the Court’s choosing.  Similar access is not provided to these attorneys, or to the other 10 to 20 lawyers who are regularly in East Lansing on retained cases such as myself.  This type of access gives the appearance of impropriety and favoritism when such should not be the case.  More importantly, it doesn’t happen in Eaton, Ionia, Clinton, or Shiawassee counties.

In 55th District Court, there are a number of prosecuting attorneys from Ingham County to Delhi and Meridian Townships that appear on a regular basis.  And it appears that they have a passcode too.  In 55th District Court, despite the fact that a number of private attorneys are representing various governmental agencies, those private attorneys get to skip the security line and are able to enter through the back door.  It appears that they also have the passcode to enter judges’ chambers whereas reputable defense lawyers have to go through the bailiff and generally can only enter when accompanied by the prosecutor assigned to the case. The 55th District Court has advised that several defense attorneys that practice in 55th District Court on a regular bias have access to the Judges’ chambers similar to the prosecuting officials. Comments have not yet been received from 54B District Court.

One of the essential elements of the judicial branch is the appearance of propriety. When there is disparate treatment between defense counsel, who are representing citizens of this county, all of whom are presumed innocent, and government attorneys from the executive branch, that appearance becomes shaded.   Fair is fair and this treatment should change.

 


 

September 2014

Andrew P. Abood Runs for Lansing Community College Board of Trustees

Andrew P. Abood, who is a lifelong resident of the Greater Lansing Area, has elected to run for the Lansing Community College Board of Trustees. Andrew P. Abood’s decision to run was primarily based on his commitment to improvement of the greater Lansing area and his strong belief and commitment to education. His core focus is to assure that Lansing Community College students have the greatest education possible, and to make sure that Lansing Community College is run in a fiscally responsible manner (low cost and high quality).

Andrew P. Abood’s top priorities for Lansing Community College are

1.   To make sure that our customers, the students, have an unparalleled educational experience and to ensure that LCC is world-class community college;

2.   To maintain fiscal responsibility; and

3.   To assure that the professors and administration are treated in a fair and professional manner.


August 2014

Andrew P. Abood Earns Top 10 Client Satisfaction Award

Andrew P. Abood recently received an award for being in the Top 10 Best Attorneys for client satisfaction by the American Institute for Personal Injury Attorneys.

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Operating While Intoxicated Reduced to Careless Driving

The Abood Law Firm appeared in court yesterday on behalf of a client that was charged with Operating While Intoxicated. The client accepted responsibility for Careless Driving and the criminal Operating While Intoxicated charge was dismissed. Careless Driving is only a three point civil infraction traffic ticket.

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Circuit Court Grants Leave to Review District Court’s Decision on Motion to Suppress

Today, the Abood Law Firm received an order from Circuit Court granting an application for leave to appeal. Carrie Cousino, with the Abood Law Firm, drafted and filed the appeal based on a ruling from the lower court. The motion argued that the officers’ violated the client’s Fourth Amendment right to be free from unreasonable search and seizure by arresting her without probable cause.  The prosecuting official stipulated to the fact that the officer did not correctly perform the horizontal gaze nystagmus test.  Further, on cross examination, the officer conceded that he based his decision to arrest on all the tests performed, which necessarily included the horizontal gaze nystagmus.

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Landmark Decision Protects Citizens Against Warrantless Cell Phone Searches

The Supreme Court of the United States recently issued a landmark Fourth Amendment decision regarding warrantless searches of citizens’ cell phones.  Despite opposition from law enforcement and prosecuting officials, the Supreme Court voted unanimously to uphold the rights of the accused to be secure in their personal cell phone communications and digital files.

In Riley v. California[1] and United States v. Wurie,[2] consolidated cases, law enforcement officials searched and retrieved private cellular phone information from citizen suspects without a warrant, and used that information against them in court proceedings. During the trial and appeal proceedings, defense attorneys argued that cellular phone digital information was protected by the Fourth Amendment.

Courts have upheld warrantless searches of the immediate vicinity of a suspect’s personal area as a means of protecting officers and/or preventing the destruction of evidence. However, in these consolidated cases, the United States Supreme Court held that granting law enforcement access to a suspect’s cellular phone did not adequately serve either purpose since a cellular phone does not ordinarily present a threat to officers nor can a suspect easily destroy evidence contained within.

These cases highlight evolving case law concerning the emerging issues of digital evidence collection.  It is becoming more important for a criminal defendant to hire an attorney practiced in the ever-changing laws of the criminal procedure and criminal defense.

[1]           134 S.Ct. 2473 (2014).

[2]           134 S.Ct. 2473 (2014).

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“Pre-trying” Preliminary Examinations

On May 20, 2014, the Michigan Legislature passed a law which adds another layer of procedure to the preliminary examination stage in criminal felony proceedings.1 The new law, Public Act 123, takes effect in January 2015. The preliminary examination stage, “is the first substantive hearing in district court before a judge in felony cases, during which the state is required to produce sufficient evidence to establish that there is probable cause to believe that a felony has been committed, and that the defendant committed it.”2

Although preliminary examinations are not specifically mandated by name constitutionally, the process of preliminary examinations parallels due process and equal protection principles in the Fourteenth Amendment and the Bill of Rights.3 “In that light, the process [preliminary examinations] provides the opportunity for an immediate development of evidence and testimony essential to the ends of justice, and this in turn helps produce accurate and just results at circuit court trials.”4

Section 4 (4) of the new law, Public Act 123 of 2014, states that,

“If a plea agreement is not reached and if the preliminary examination is not waived by the defendant with the consent of the prosecuting attorney, a preliminary examination shall be held as scheduled unless adjourned or waived under section 7 of this chapter…Upon the request of the prosecuting attorney, however, the preliminary examination shall commence immediately for the sole purpose of taking and preserving the testimony of a victim if the victim is present…If that testimony is insufficient to establish probable cause to believe that the defendant committed the charged crime or crimes, the magistrate shall adjourn the preliminary examination to the date set at arraignment.”

In effect, Public Act 123 is adding a layer of procedure called a “probable cause hearing.”5 “It appears to be an attempt to “pre-try” preliminary examinations,” says First Assistant Public Defender of Washtenaw County, Lorne Brown. The purpose of this probable cause hearing seems to be to weed-out cases which can be resolved more efficiently without a full preliminary examination. In practice, there are often times when a defendant is scheduled for a preliminary examination and the exam consists of the defendant simply putting a plea on the record, waiving the examination, or adjourning the examination. In light of this, the need for a full preliminary examination in some of those cases may not exist, and this may be where a probable cause hearing could expedite criminal felony proceedings.

As written, the law does not seem inconsistent with the Sixth Amendment of the United States Constitution or the Michigan Constitution, and the right to confront a witness by and through defense counsel will still be in effect.6 Since this new law has yet to take effect, the efficiency and consequences of it are yet to be seen.

1 Brown, Lorne, First Assistant Public Defender, Washtenaw County (2014, July 9). Email Correspondence.

2 Powell, Lloyd E., Examination of the Need for Preliminary Examinations, Michigan Bar Journal, March 2006.

3 Powell.

4 Powell.

5 Brown, Lorne, First Assistant Public Defender, Washtenaw County (2014, July 9). Email Correspondence.

6 Brown, Lorne, First Assistant Public Defender, Washtenaw County (2014, July 9). Email Correspondence.

 


 

July 2014

Abood Law Firm Client Ecstatic About Criminal Charge Dismissed

Last week, attorney Andrew Abood successfully negotiated the dismissal of a Client’s four-year felony charge. The client was charged with the manufacturing of marijuana. Although offered a plea to a misdemeanor of use of marijuana, the client bravely decided to decline the prosecutor’s original offer. Mr. Abood’s effective advocation and artful negotiation skills resulted in the client’s felony charge being dismissed. Ultimately, the prosecutor agreed that the client could plead to the civil infraction of impeding traffic. This is a great result even when the original charge is speeding – let alone a four-year felony

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Secretary of State Hearing Dismissed

Even in those cases when the police officer does it right, you can still win when you hire the right attorney.   On July 28, 2014, Andrew Abood appeared before the Secretary of State and successfully negotiated the dismissal of a petition which would have resulted in the client’s license being suspended. The license suspension would have been based on the client’s refusal to blow into the DMT after being arrested for an OWI. The bottom line is that you do not have to engage in hostile cross-examinations on every case – sometimes using the carrot instead of the stick is just as effective.

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Abood Law Firm Takes on the City of East Lansing in a Freedom of Information Act (FOIA) Request Battle

The Abood law firm has litigated a number of Freedom of Information Act cases over the last several years. According to Andrew Abood,  “[i]t is an important Act because it maintains transparency and accountability in our Government.   At the same time, it is law firms like ours that must continue to scrutinize Government policy and procedures so that information like the Motor Vehicle Recorders are freely available to the citizens of Michigan.”

It has become standard practice for criminal defense lawyers to regularly request Motor Vehicle Recordings from police vehicles pertaining to their respective clients’ arrests under the Freedom of Information Act (FOIA). Over the last ten years, police agencies have begun, as a matter of standard issue, having Motor Vehicle Recorders in road patrol vehicles. Along with having Motor Vehicle Recorder in patrol vehicles, there is generally a standing order, which states that before going out on the road, an officer must check to make sure that the Motor Vehicle Recorder, and the officer’s on-person microphone, are in good working order. The purpose of this order is not only to protect the officer, but also to protect the citizen.

Under the Freedom of Information Act (FOIA), law enforcement agencies are statutorily required to comply with requests, including requests for Motor Vehicle Recordings. Consistent with the stated purpose of the Freedom of Information Act (FOIA), being that all persons are entitled to full and complete information regarding the affairs of government, the Legislature did not impose detailed or technical requirements as a precondition for granting the public access to information following a Freedom of Information Act request (FOIA).[1]  All that is required under the Freedom of Information Act (FOIA) is that an oral or written request be made that sufficiently describes the public record to be found by the public body.[2] For the most part, law enforcement agencies comply with the requests; however, when non-compliance becomes an issue, a Freedom of Information Act (FOIA) lawsuit, like the one currently filed by the Abood Law Firm against the City of East Lansing, may ensue.

Over the last six months several local law enforcement agencies have began taking the position that Motor Vehicle Recordings may contain Law Enforcement Information Network (LEIN) particulars unrelated to the information being requested under the Freedom of Information Act (FOIA).  The Motor Vehicle Recordings could include general traffic information involving other citizens. The local police agencies have concluded, for whatever reason, that the disclosure of this information may violate the Law Enforcement Information Network (LEIN) information disclosure policies.

However, instead of meeting their burden of proof to qualify for an exemption under the Freedom of Information Act (FOIA), and despite having the ability to redact the unrelated Law Enforcement Information Network (LEIN) particulars, many local police agencies are refusing to comply with the Freedom of Information Act (FOIA) request for the Motor Vehicle Recordings, unless there is a stipulation and order in the underlying criminal case ordering the production of the Motor Vehicle Recordings. This is the policy of the City of East Lansing Police Department, and is the substance of the action taken by the Abood Law Firm against the City of East Lansing.  One of the conditions of the East Lansing Police Department is that the Motor Vehicle Recording only be used in the case in which the stipulation and order is entered. The Abood Law Firm believes that this policy violates the Freedom of Information Act (FOIA) because of the simple ability of the police department to redact the unrelated information, and their statutory obligations under the Freedom of Information Act (FOIA).

Further, there is no evidence to date that unauthorized Law Enforcement Information Network (LEIN) particulars pertaining to individuals other than the Abood Law Firm’s client even exist on the Motor Vehicle Recordings requested.

Additionally, given that most of the time the Motor Vehicle Recordings are requested in Operating While Intoxicated cases, which are handled wholly within the jurisdiction of the District Court, it seems somewhat illogical that a stipulation and order from a District Court ordering discovery would provide any type of immunity, when it is well settled that a District Court does not have the authority to order discovery in a criminal case.

[1]           See MCL 15.231(2); SeeHerald Co v City of Bay City, 463 Mich 111, 121; 614 NW2d 873, 878 (2000).

[2]           MCL 15.233(1).

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What Happens When Punishment No Longer Fits the Crime?

What happens when you see the inside of a court room, your fate is determined by a judge or jury, astronomical costs are assessed against you, you face a pending term of imprisonment, and potential life long consequences? Many people simply cannot financially afford the fines, costs, and consequences imposed. The question becomes – at what point is justice no longer being served, but instead creating a perpetual cycle of poverty and crime?

The Michigan Supreme Court took a step in the right direction toward rectifying this issue in People v. Cunningham. The Court held that MCL769.1k(1)(b)(ii) provides courts with the authority to impose only those costs that the Legislature has separately authorized by statute.[1] Frederick Cunningham, a man who was in and out of prison for the better portion of his life, plead guilty in the Allegan County Court to obtaining a controlled substance by fraud. Mr. Cunningham was sentenced to 12-48 months in prison, and court costs totaling, $1,198.00. The crime that he was charged with “contemplates a sentence that may include imprisonment and/or a fine, it does not anywhere provide courts with the authority to impose costs.”[2] In contrast, “courts may require individuals convicted of offenses related to racketeering activity to pay ‘court costs’ or ‘the costs of the investigation and prosecution that are reasonably incurred.”[3]

On Appeal the Court upheld the trial court’s ruling, stating that, the costs were reasonable. However, the Michigan Supreme Court overturned this decision, reasoning that, if the Legislature had intended courts to be able to apply any reasonable cost, they would not have designated specific charges to have costs attached, continued to designate specific charges to have costs attached, and they would have said so.

This is one of the many reasons that it is important to hire an attorney with expertise in the area of statutory construction to be able to determine whether the court imposing such costs are exceeding their authority granted by statute.

[1]           People v. Cunningham, Mich. Supp. (2014)

[2]           People v. Cunningham, Mich. Supp. (2014)

[3]           MCL 750.159j(2)

 


 

June 2014

Abood Law Firm Fights to Retain Clients’ Licenses

Over the last week, Andrew P. Abood has successfully resolved two implied consent hearings in favor of his clients.  In the first case, the police officer agreed voluntarily to withdraw the petition. A hearing was held in the second case wherein the Administrative law judge ruled that there was insufficient evidence that the client was operating a motor vehicle as required by the statute.
What is an implied consent hearing?  When a citizen refuses to take a breathalyzer test at the police station after being arrested for an operating while intoxicated, the citizen has 14 days in which to appeal the automatic suspension by the Secretary of State for refusing the test.  The review is limited, but there are a number of legal arguments that can be made in order to preserve a client’s license.  The Abood Law Firm regularly appears before the Secretary of State in regards to license preservation.  And both clients were extremely happy.
“Your driver’s license is one of the most valuable things the government gives you and we understand how important it is for our client’s to continue to have the privilege of operating a motor vehicle.  We make a concerted effort in our firm to stay on top of the law in this regard so that our clients can receive the best representation possible.”  Andrew P. Abood
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A ‘Moreno’ Victory – Possible Extension to Resisting and Obstructing Charges in DUI Cases

Last week, a decision by the Michigan Court of Appeals affirmed the ruling in People v Moreno, 491 Mich 38; 814 NW2d 624 (2012), and also included lawfulness of an officer’s actions as an element of the crime of resisting and obstructing an officer under MCL 750.81d(1).

The ruling in Moreno reinstated the common-law rule that a person may resist an unlawful arrest. In the case at bar, the Court affirmed not only that this common-law rule is alive and well, but also that it, “should be given limited retroactive effect in cases where a defendant raised the issue on appeal, and either the defendant preserved it in the trial court, or the defendant can demonstrate plain error affecting substantial rights.”[1]

In addition to upholding the common-law rule, the Court of Appeals applied the common-law rule to Michigan’s resisting and obstruction statute. The Court held that, “it is clear that under Moreno, as at common-law, the prosecution must establish that the officer acted unlawfully as an actual element of the crime of resisting and obstructing a police officer under MCL 750.81d.”[2] As such, the Court of Appeals went on to hold that since unlawful action by a police officer is an element of MCL 750.81d, this is a question of fact for the jury, and thus must be so instructed.

The significance of this decision, in the world of DUI defense, may be in it’s extension and application to roadside stops. There has been some discussion in the criminal DUI defense community speculating that perhaps this decision can be extended to defend individuals hypothetically charged with resisting and obstructing for refusing roadside evidence gathering exercises.

[1]People of the State Michigan v Arthur J Quinn, unpublished opinion of the Court of Appeals, entered May 29, 2014 (Docket No. 309600).

[2]Id.

 


 

March 2014

Abood Law Firm Agrees to Represent Kosgar John Lado

On February 24, 2014, after meeting with Mr. Lado and his family on multiple occasions, the Abood Law Firm has agreed to represent Mr. Lado on the charged offense and is working diligently to obtain a complete vindication of the charges and to allow Mr. Lado to resume his mental health counseling.

On June 26, 2013, Mr. Lado was taken from his residence by police vehicle, in handcuffs, to the Lansing Police precinct and interrogated for several hours. During the course of the interrogation, Mr. Lado was told by the police: “If you didn’t do anything, you don’t have anything to worry about.”

It was Ronald Reagan who said that the nine most terrifying words are, “I’m from the government and I’m here to help.”

Despite asking for a lawyer, none was provided and his interrogation continued. Despite asserting at the beginning and end of the interrogation that he did nothing wrong, he was jailed from June 26, 2013 to July 27, 2013 on a charge of homicide. Despite advising his detainers that he was “weird and crazy,” they did nothing to help him. No reasonable person could conclude that he had anything to do with the homicide upon reading the transcript of his interrogation.

Yet, Mr. Lado still faces felony charges and the prosecutor is requiring him to essentially “buy” his freedom & pay $3,000 – $5,000 to undergo a mental examination.

“The stool of injustice stands on the three legs of innocence, mental illness and lack of financial resources,” said attorneyAndrew Abood. “The Abood Law Firm is not going to sit idly by and allow an innocent man to be wrongfully convicted. It is unfortunate that our government can’t apply a common sense approach to reach the right result that should be readily apparent. Instead, it appears that our government is placing contrived conditions on this case under the auspice of trying to help. As legal counsel for Mr. Lado, please Mr. Prosecutor, we don’t need any more of your help.”

For more information on Ingham County Prosecutor dropping the charge of proving false information to police officers, please read http://www.lansingstatejournal.com/article/20140305/NEWS01/303050033/Charge-dropped-against-mentally-ill-Lansing-man-accused-lying-police

 


 

January 2014

Client Finally Gets a Fair Shake

Client finally gets a fair shake:  On January 7, 2014, Abood Law Firm received a plea offer to a civil infraction for a client originally charged with Operating While Intoxicated (OWI).

The original charge surrounded events that occurred on May 11, 2011.  At trial on October 18, 2011, evidence was admitted over the defense counsels’ objections (Mike Nichols and Andrew Abood).  The Court, however, admitted evidence proposed by the prosecutor to bolster the credibility of the breathalyzer.  On Appeal, the Appellate Court reversed the trial court’s decision and ruled that the client was entitled to a new trial.  Despite additional appeals by the Prosecutor’s office, the reversal was affirmed.

Entitled to a new trial, and with counsel ready to proceed, the parties were able to negotiate a plea to a civil infraction.  Andrew P. Abood reflected on the results as follows:  “it was a long road, and a true team effort which included great work by Mike Nichols and the brief writing skills of Carrie J. Cousino.   It is especially gratifying when the client has the courage to continue to fight and the gratitude to appreciate hard work and a job well done.”