Prosecutor details court decisions' impacts on criminal law McMorrow reads criminal case rulings with a critical eye

By Cynthia Price Legal News Reading through court decisions on criminal cases is almost always interesting, but Timothy McMorrow, Kent County Chief Appellate Attorney who has been in the Prosecutor's Office for 29 years, reads them with a critical eye, digests them and produces a comprehensive list. He recently updated members of the Criminal Law Defense Section of the Grand Rapids Bar from his list of the decisions most likely to have an effect on their practices. McMorrow emphasized that his list, reflected in a multi-page handout, is subjective and that each attorney must read through the cases and commentary over time to determine what the actual repercussions will be. In fact, McMorrow said that one of the major take-aways of some of last year's decisions is the necessity to read every statute and know what it actually says. "The real lesson is something we always tend to forget -- read the statute, don't read a case that interprets the statute without reading it itself." He made that statement in conjunction with a ruling on People v Parker, where a defendant's conviction under MCL 750.266, carrying a weapon with unlawful intent, was overturned because the statute specifically reads, "knife having a blade over 3' in length." There was no evidence that the knife used was over 3" in length, but the defendant's other conviction, for felonious assault, was allowed to stand. Some of the most notorious recent Michigan decisions concerned criminal sexual conduct. People v. Hill involved a man from Muskegon County who downloaded child pornography to his own computer. The court ruled that this does not in itself constitute "making" or "producing" pornography, but is simply possession. The difference between the two means that the defendant was charged with a crime that carries a lighter sentence (four years), although the charge of using a computer to commit a crime carries a seven-year sentence. McMorrow pointed out that this decision, which has already resulted in lots of people asking for their sentences to be reduced, might be better addressed by setting aside the "making" conviction and starting the case over. In some cases, other charges might have been dropped based on the "making" charge which should really be reintroduced if justice is to be served. In a similar case, People v. Flick, the Michigan Supreme Court held that merely viewing child pornography on a computer screen is to be considered possession. Those who have sought out such material "knowingly had the power and intent to exercise dominion or control over that depiction," which equates to possession. However, yet another child abuse case opinion resulted from a close reading of the statute which might have been counterintuitive. An Emergency Medical Technician in John Doe v. John Doe 1 observed another EMT sexually abusing a child after answering a call -- "The facts are really disgusting," commented McMorrow. While EMTs are among those required to report such abuse to authorities, the statute says that mandatory reporting only applies if observation is made of a parent, guardian "or other person responsible for the child's health or welfare" abusing the child. Therefore, the EMT was not remiss in reporting the incident only to his superiors. It should be noted that this was a civil case, but has ramifications for criminal cases. Probably the most far-reaching decision last year in terms of the section members' practices was Padilla v. Kentucky, a U.S. Supreme Court decision. It mandates that an attorney advise a client of the deportation consequences of a guilty plea and failure to do so would justify a claim of ineffective assistance of counsel (though would not automatically entail setting aside the guilty plea). The decision did not limit the mandate to affirmative misadvice, as happened in the Padilla case, but rather stated that it is incumbent on the defense attorney to inform the client about plea consequences. There is still some ambiguity in terms of whether Padilla applies to advising about all collateral consequences, but McMorrow advised scrupulous checking when dealing with a non-citizen criminal case. He read the language "failure to advise of the immigration consequences which were easily discoverable" and his question, "How easily discoverable are they in reality?" was met with laughter. McMorrow indicated that the State Appellate Defender's Office has an excellent guide to collateral consequences which should be helpful to lawyers in addressing the mandates under Padilla. It is written by Miriam Aukerman of Legal Aid of Western Michigan, and can be found at www.sado.org/civil_legal. McMorrow had some wry comments on the new anti-texting law centered on its wording that the vehicle had to be "moving." This would mean that an individual sending a text message while at a stop sign would be exempt from the fine, which McMorrow felt made the law much less likely to be effective. He said that in past years, there have been many more statutes on his list of factors influencing criminal law, but in 2009-2010 the legislature was preoccupied with the economy. Other recent legislation he covered included requiring that the jurisdiction over anyone found driving with a blood alcohol content of more than 0.17 now falls to the state. McMorrow wondered how this would work out with local law enforcement. He also noted that MCL 600.2950a was amended so that a court may issue a Personal Protection Order to a victim of a sexual assault or threatened with a sexual assault, even if there was only a single incidence. There were a number of impactful decisions on Habeas Corpus coming out of the U.S. Supreme Court, but McMorrow declined to delve into them at the Criminal Law Section meeting. He does have questions about Michigan Supreme Court case People v. Houthoofd. He felt the decision created confusion over what constitutes proper venue, since the improper venue acknowledged in the decision was regarded as harmless error. Other U.S. Supreme Court cases further defined Miranda rights. One held that the specific statement of such rights need not be invariable, as long as the intent is conveyed (Florida v. Powell); another stated that the silence of a suspect under interrogation does not constitute an invocation of his or her right to remain silent, which must be stated directly (Berghuis v. Thompkins). Perhaps most far-reaching is the decision in Maryland v. Shatzer expanding on Edwards v. Arizona by stating that invocation of the intent to "lawyer up" did not extend beyond the continuity of custody where it was first invoked. The suspect had spent time in prison for another crime between his first declaration of intent to be represented and the time additional interrogation came up which resulted in his confessing to the original crime, and SCOTUS upheld the conviction. McMorrow felt that the second amendment decision in McDonald v. City of Chicago was likely to be less far-reaching based on the dictates of the court itself. In holding that the 14th Amendment due process clause makes the right to keep and bear arms "fully applicable to the states," the court also granted that states may impose restrictions on having guns. The repercussions of this are yet to be determined. Some notable U.S. Supreme Court cases originated in Michigan. In Michigan v. Fisher, the Supremes reversed the Michigan Court of Appeals in holding that police officers who entered a home without a warrant in order to deal with a combative person were justified. The test is whether the officers had an "objectively reasonable basis for believing" that assistance was necessary, even in light of a later determination that there was no emergency. Published: Fri, Nov 5, 2010

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