Motor City Marvin Suspended From Practice of Law

Attorney Marvin Barnett

Jeeze, say it ain't so. Just as we put the touches on our inaugural Motor City Original series a few months ago by highlighting a victory for attorney Marvin Barnett, the Attorney Discipline Board suspended his law license for three years for multiple ethics violations.

Barnett, a colorful iconic Detroit criminal defense lawyer, has made a career out of taking on the Detroit Police Department and its investigators. Perhaps his crowning achievement was causing the probe into the DPD's crime lab; an investigation that ultimately shut the lab down.

When we bumped into Marvin earlier in the month in the Oakland County Circuit Court, he was talking retirement. With hindsight, he may have seen this opinion coming.

After a hearing at which three sitting Wayne County Circuit Court judges testifed on Barnett's behalf, the ADB concluded that the Motor City defense counsel intimidated a witness in a federal criminal trial and neglected two client matters while mishandling client funds.

The ADB alleged Barnett intimidated the witness in the federal criminal proceeding by telling the witness he risked assassination if he testified in the case against Barnett's client, describing to the witness how his testimony would be transcribed and distributed throughout the local community.

That's all bad for this Motor City original. He cannot represent clients and earn money as a lawyer for three years. At least he did not lose his law license with a disbarment, which was considered by the ADB. Avoiding disbarment is important because, to earn a law license back, the disbarred attorney must pass the bar exam.

We wish Mr. Barnett well in the upcoming years and wonder weather he will just retire, or whether we will see him in a court room down the road.

Motor City Original: White Boy Rick

While in law school in Detroit in the mid-1980s, I remember following the "White Boy Rick" saga.  The case involved kilos of cocaine and a young white kid, Richard Wershe, Jr., once a flashy Detroit upstart drug dealer and man about town, turned big-league informant for the Detroit Police Department, FBI and DEA.

Wershe is believed to be the lone convict still incarcerated from the 1980s-era draconian drug laws. Back in those days, former Governor John Engler spearheaded a legislative initiative called the "drug lifer law".

If you were convicted of manufacturing and delivery of more than 650 grams of cocaine in the mid-80s, you faced a life sentence without parole. All persons convicted under that now-overturned sentencing statute have either died or have been released.

Yet here is Wershe, 28-years later, plodding through his various long-shot appeals. His case is unique to the extent that he was sentenced to life, with the possibility of parole. Earlier this week, the Michigan Court of Appeals snuffed out the ray of hope cast upon Wershe by the Wayne County Circuit Court when it granted his motion for re-sentencing.

The Court of Appeals reversed that ruling on Monday via procedural grounds. Unlikely that the Michigan Supreme Court will even take his case, Wershe must now await another round with the parole board in 2017.

A long-serving convict like Wershe usually grinds through the state court appellate process during the first five-years of incarceration. Once all state remedies have been exhausted, the defendant can then turn to federal court via a petition for habeas corpus.

In the past six months, Wershe has been in the news again for the attempts being made by his appellate lawyers to spring him from the Michigan Department of Corrections. For what he did wrong, it does certainly seem like Wershe paid his debt long long ago.

His cause is amplified by the fact that he is a "one-of-a-kind" inmate. As the longest serving Michigan inmate, White Boy Rick is our Motor City Original this month.

Ineffective Assistance of Counsel in the Wake of Bashara's Murder Conviction

Defense lawyer Michael McCarthy

When you are catching cases from Wayne County as a roster attorney for the Michigan Appellate Assigned Counsel System, you wind-up reviewing trial transcripts to spot issues to raise on appeal on behalf of your recently-convicted client. One of the issues raised in nearly every case is that your client did not receive effective assistance of trial counsel in violation of the Sixth Amendment to the United States Constitution.

So it was appellate "business-as-usual" when Bob Bashara, jury-convicted last year of the sensational first degree murder of his wife, raised the issue effective assistance post-verdict.  His MAACS attorney, Ron Ambrose, had to raise this standard issue in order to perfect Bashara's appeal.

Whether a convicted defendant has received the effective assistance of counsel is developed through a hearing known as a Ginther hearing. The object of a Ginther hearing is to determine whether his legal representation fell below what court's have deemed constitutionally effective legal representation.

The hearing, conducted in the Frank Murphy Hall of Justice, provided a rare insight into what goes no behind the scenes with the lawyers in the accused's camp.

Our good friend, Michael McCarthy, along with Detroit lawyer Lillian Diallo, constituted Bashara's high-powered, albeit court-appointed, defense team.  In order to determine whether a defendant received the effective assistance of counsel during a felony trial, testimony is taken by defendant's trial lawyer(s). Both the defendant's appellate counsel and the prosecutor get to question the defense lawyers.

Bashara alleged the assistance he received during his trial was ineffective because his lawyers refused to call certain witnesses and did not run the case the way he wanted it run. He wanted the lawyers to call witnesses who could discuss the seedy alternative lifestyle in which Bashara was involved: bondage, discipline, sadomasochism or BDSM.

For their part, the lawyers were not having it; they refused to put on such a case in Bashara's defense. Diallo testified at the hearing she was not about to become Bashara's legal slave and that he always acted like he was the smartest person in the room. McCarthy refused to develop a develop a defense around the Bashara's sexual limitations because he did not want to drag Jane Bashara's name through the proverbial mud.

In this case, given its high-profile nature, we have been treated to the frank testimony of the defense duo; a rare behind-the-curtain look at defense trial strategy in a high-profile media case. It has been our experience that an accused often wants things to go a certain way. Without an understanding of the law, evidence and procedure, that client is often sorely disappointed by the manner in which the case is presented to the jury.

The trail judge will not likely be ordering a new trail for Bashara; this exercise is simply to develop a record for the Court of Appeals to consider.

Motor City Original: Attorney Dana Nessel

Attorney Dana Nessel

In the past half-decade, the marriage equality civil rights movement has swept across the nation with many state legislatures removing laws that prohibited same-sex marriage and with the SCOTUS deciding two landmark cases that hold the right to select whom to marry is a fundamental constitutional right.

One of those cases involved a lesbian couple from Metro Detroit. The April DeBoer case presented a unique twist to the marriage equality movement to the extent that the case involved adoption rather than marriage.

April DeBoer was represented in the federal civil rights suit by Detroit lawyer Dana Nessel. Navigating the case successfully through the United States District Court for the Eastern District of Michigan, Ms. Nessel then participated in the very interesting appeal to the United States Sixth Circuit Court of Appeals.

This week, the Detroit lawyer received some much earned recognition when she accepted the "Woman of the Year" award from the Michigan Lawyers Weekly. In accepting the award before a large group of lawyers, Ms. Nessel recognized, as this blog does, that attaining SCOTUS recognition of marriage equality is only the beginning of eliminating discrimination against the LGBT community.

We here at the Motor City Law Blog applaud Ms Nessel's successful efforts in this civil rights struggle.

Detroit Parolee's Facebook Post Lands Him Back in the Joint

Once you have a felony conviction, you are no longer eligible to possess a firearm; that's the law in Michigan and the price of being a convict. Parole officers in the 313 have their hands full keeping up with burgeoning caseloads as our local communities are awash in weapons of all stripes.

But this dude, Denzel Biggs, made it really easy for his PO. He posted a pic on his Facebook pointing two semi-automatic pistols directly at the camera.

The DPD's gang unit saw the pic and alerted his PO and the FBI; BAM, right back to the joint.

This time, Denzel, only 20 years old, brought his game to federal court as the FBI convinced the U.S. Attorney in Detroit to bring federal weapons charges when they noticed, from the picture posted in Facebook, that the weapon Biggs held was manufactured outside Michigan thereby triggering the interstate commerce clause and, in turn, the federal charges.

We here at the Motor City Law Blog have made plenty of trips to the Frank Murphy Hall of Justice to represent clients facing added counts of either felon in possession or felony firearm.

Just as a convicted felon, a parolee, cannot possess a firearm, if someone commits a felony while in possession of a firearm, that becomes an extra felony count available for the prosecutor to add to the predicate felony.

The Second Amendment to the United States Constitution protects our right to possess firearms. When you are convicted of a felony, however, you lose some of your fundamental constitutional rights.

Motor City Marijuana

Motor City Weed Warrior
Richard Clement

Looking West to Colorado, the Motor City's weed warrior, Richard Clement, a staffer to Detroit City Councilman George Cushingberry, Jr., is pushing a proposal for the 2016 ballot to legalize marijuana in Detroit. Clement sees the profits being earned and the commerce being generated in Colorado as possible here in Detroit; he claims that pot legalization could be another girder in the rebuilding of the Motor City.

Clement, a medical marijuana card holder, believes that many of his fellow Detroiters have a strong desire to, "fire-up a big fat one" once they retire and no longer face employers' drug tests. For Clement, he sees legalization as a win-on-weed, both for the sensory experience and for the byproducts of hemp. He said as much in this recent WDIV interview.

To get on the ballot for 2016, the proposal needs 250,000 signatures; that's about a quarter of the city's population. There are two other state-wide proposals floating around these days that are trying to garner enough support to make the ballot.

We here at the Motor City Law Blog believe that legalization is inevitable, especially in light of the obvious failure of the "war-on-drugs". But the legalization process is arduous to be sure.

For starters, marijuana needs to be removed from Schedule 1 of the federal Controlled Substances Act; only Congress can do that and so far, there has been no will in that august body to do so. Second, the Justice Department needs to continue its policy, started under President Obama, of forgoing prosecutions for low-level dispensaries.

As long as the delivery and manufacture of marijuana remains a federal crime, insurance companies and banks will forever be on the sidelines of the industry's development. Marijuana will continue to be a "cottage industry" only.  Perhaps that is as it should be.

It's a fact that the DPD has its hands full with homicides and robberies and the like. Not having to keep track of the weed man will come as much needed relief to Detroit's finest.

So it's cool with us if Clement's proposal gets some legs; can't hurt. But we don't think legalization of weed will have too much to do with Detroit's inevitable come-back.

Street Artist Heads to Trial in Detroit

Last May, famed street artist Shepard Fairey, in Detroit to complete commissioned artwork, was asked by a reporter whether he planned to leave his mark on the Motor City. His response -keep your eyes peeled- came back to haunt him the other day in the 36th District Court when he was bound over to the Frank Murphy Hall of Justice for a felony trial.

District Judge Kenneth J. King conducted Fairey's preliminary examination. The exam included replaying the artist's various statements to the local media. In binding him over, the judge said that Fairey, although talented, cannot go around the Motor City tagging, and thus damaging, private property [abandoned buildings] without permission from the owner.

Makes sense, and we here at the Motor City Law Blog smell a conviction, but stories like this from the 313 are never that simple. Defense counsel asserted that what Fairey did was not malicious destruction of property but rather, "art".

Plenty would argue that creatively tagged abandoned buildings combat our urban blight and add to the gritty "culture" of the Motor City. Others would question the sense of exercising prosecutorial discretion in bringing such a high-profile case when the Wayne County Prosecutor's "murder unit" has a growing pile of unsolved homicides.

On the other hand, property is property, regardless of where situated and how poorly maintained. Our country is based on a set of laws designed to facilitate ownership of private property; that is central to our legal system and necessary for commerce.

Speaking of commerce, isn't it ironic that one of our local billionaires, Dan Gilbert, who has acquired an impressive collection of properties himself, commissioned Fairey for the mural -pictured- adorning his Bedrock Real Estate Services building.

Motor City Original: Dr. Ben Carson

Trump, Trump, Trump. That's all you hear from the national media during these outlier-months of the coming presidential campaign; the campaign that promises to be a maelstrom.

This blog tends away from stories about national politics, especially those that do not have a legal component. But we do like putting an occasional spotlight on Motor City Originals; this time, it's 2016 Republican presidential candidate, Dr. Ben Carson.

Carson was born in Detroit, MI where he lived with his older brother. Their mother Sonya, only 13 when she wed, divorced their father when she discovered he was a bigamist.

Sonya cleaned houses while raising the boys as a single parent in Detroit in the 1960s. She was illiterate, but made her sons read every book the library had to offer; her constant refrain to her boys: if you don't succeed, you only have yourself to blame.

In his youth, while attending Detroit's Southwestern High School, Carson's life almost went the way of so many of Detroit's youth when he stabbed a classmate with a knife. He was spared felonious assault charges due to the blade breaking off on the boy's belt buckle.

From Southwestern, Carson attended Yale and then the University of Michigan Medical School. He was a professor of surgery at Johns Hopkins Hospital; at age 33, Dr. Carson was the youngest head of a pediatric neurosurgery department anywhere in the country.

Carson's 1990 book, Gifted Hands, has sold 1.5 million copies. In 1997, Dr. Carson became the first surgeon to successfully separate craniopagus twins from Zambia; a feat he reprised a short time later, earning a Presidential Medal of Freedom bestowed by President George W. Bush.

Now an official candidate among the crowded field of Republican presidential hopefuls, Carson is known for his outspoken opposition to same-sex marriage, as well as his detailed criticism of health insurance companies.

Dr. Carson has reserved his perhaps most stinging criticism for the Affordable Care Act; a position that squarely aligns him with the base of the GOP's conservative wing; a political affiliation Carson only recently officially adopted [November 2014].

While we may not agree with his conservative views, we here at the Motor City Law Blog certainly do admire his hometown credentials and his professional accomplishments. Compared with the annoying manic blather of Trump '16, Carson's candidacy reminds us what democracy is all about: making a free choice by casting a vote to determine whom, among a range of candidates, gets to lead the executive branch as a sitting president; a very select and exclusive group.

Supreme Court Removes Detroit Judge

Judge Brenda Sanders

Last March, the Judicial Tenure Commission recommended the removal of 36th District Court Judge Brenda K. Sanders due to her mental illness. Earlier this month, the Michigan Supreme Court ordered her removal.

Trouble first began for Judge Sanders when she let her docket balloon to more than 400 backlogged cases. Next, she sent an ill-advised letter to U.S. Attorney Barbara McQuade stating there was a conspiracy to remove her from the bench.

The investigation into Judge Sanders' fitness to remain on the bench uncovered that she suffers from paranoid delusions. For example, in her communications with the U.S. Attorney, she thought she was being framed in an investigation looking into what she characterized as the "suspicious" deaths of other 36th District Judges. Also, she believed she was being evicted from her home by the Michigan Supreme Court.

Judge Sanders' lawyer, our good friend Cyril Hall, told the Detroit News that his client was not going to appeal her removal, but added that she was not ruling out another run for the bench in some future election. Judge Sanders' said, however, that her removal from the Motor City district court bench was "fraudulent and unfounded". She vowed to review her legal remedies relative to the removal.

Detroit Police Department Seeks Additional Officers

These days, if you're a big city police officer, you can look forward to making split second decisions that could affect the rest of your life. Depending on how you act, you could be: a) reprimanded, b) sued, or c) incarcerated.

All this for a starting salary of about $42,000. What's not to like?

Of course, we recognize that issuing a badge and a sidearm to the wrong dude is asking for trouble; there's a whole lot of that going down these days.

It's true; the Detroit Police Department since February of this year has been seeking qualified candidates for fill 200 new police spots approved, budgeted and designed to fill the attrition-based erosion of the Department.

To be sure, a police officer is a special calling. Detroit sure could use some good ones.

That's why we here at the Motor City Law Blogger hope dozens of highly qualified candidates apply. We need skilled police officers to protect and serve our community.

Having competent honest police officers patrolling the mean streets of the "D" will assist the strong perception building momentum that our city could come back. There is evidence of this downtown, if this DPD plan succeeds, then the recovery could reach into all of Detroit's neighborhoods.

Certainly, it will take more than rookie police officers, but this is a good start.

Detroit Pizza King Sentenced to Prison for Tax Fraud

Happy Asker hales from West Bloomfield but started his pizza empire right here in the Motor City. Unhappy Asker was sentenced to 50-months prison last week in Detroit in the United States District Court for the Eastern District of Michigan.

Asker was sentenced by Judge Denise Paige Hood following a 10-day jury trial last November where he was accused of filing false tax returns and under-reporting employee income.  Evidence adduced at Asker's trial revealed conspiracy among several pizza franchise owners and two sets of books. Also part of Asker's judgment of sentence was a hefty $2.5 million fine.

The FBI's official web site summarizes the case against the Chaldean pizza mogul:

Evidence at trial established that from 2004 through 2011, Asker, along with certain franchise owners and employees, executed a systematic and pervasive tax fraud scheme to defraud the IRS. Gross sales and payroll amounts were substantially underreported on numerous corporate income tax returns and payroll tax returns filed for nearly all 60 Happy’s Pizza franchise locations. From 2008 to 2010, Asker and his co-conspirators diverted for personal use more than $6.1 million in cash gross receipts from approximately 35 different Happy’s Pizza stores in the Detroit area, Illinois and Ohio. In total, Asker and certain employees and franchise owners failed to report approximately $3.84 million of gross income and approximately $2.39 million in payroll taxes from the various Happy’s Pizza franchises to the IRS. A portion of the unreported income was shared among most of the franchise owners, including Asker, in a weekly cash “profit split.” As a result of the scheme, the IRS is owed more than $6.2 million in income and employment taxes. The evidence also established that Asker intentionally misled IRS-Criminal Investigation special agents during voluntary interviews conducted with him in 2010.

The IRS catches only a fraction of such transgressors. If business owners paid their fair share of taxes and stopped letting greed influence their conduct, then a level playing field is maintained for all businesses.

As a law firm owner filing a Schedule C every year, this blogger certainly does not appreciate the tax cheat. Asker's transgression makes the dollars I dutifully pay to the IRS every quarter throughout the year seem ill-spent, but I will continue paying just the same.

Murder in Detroit: One

This morning's murder victim is anonymous. The brutality of the crime, while breathtaking, is ordinary here in the Motor City.

You know, we here at the Motor City Law Blog have grown used to murder, robbery and assault leading the local evening news; no different than any other large U.S. city.  But this morning's murder in Detroit, of a 55-year old cyclist, did give us pause.

We are roughly the same age as the victim; and could see ourselves on an early morning cycle trying to get somewhere or to keep in shape with a morning workout. Then, out of nowhere, on the dangerous streets of Detroit, two young men drive by and take your life at close range; just like that.

It is not news, and this murder gives us pause because it may be one of those many many Detroit murders that goes unsolved for years; maybe forever. The victim's family, friends, neighbors, will just need to deal with it. Justice delayed, at best.

No victim's name reported in this story. No arrests, clues or leads; barely an investigation even possible at all, especially when eye-witnesses -and there were a few- will not come forward.

So no need for lawyers and no judicial resources expended meting out elusive justice, because this one could be unsolved for a while; forever. The fireworks are over here in the "D" so it's every man for himself again.

Hope we're wrong about the outcome of this, our first Detroit murder post.

Judge Cannot Repress a Motor City Original

Attorney Marvin Barnett

In the Frank Murphy Hall of Justice, attorney Marvin Barnett is a fixture. He's been defending Detroiters accused of felonies in that building for three decades.

No stranger to federal court, Mr. Barnett was involved in a gun case in Ann Arbor a while ago. During the case, Barnett began to crank-up his usual righteous cross-examination when U.S. District Judge John O'Meara stated:

This dramatic, high voice, moving around, touching your client. It isn’t going to happen. You went into a whole series of pretty dramatic questions about what happened, who opened the door, who pulled it open. It had nothing, nothing to do with what this jury has got to decide and you’re getting back into some other areas. Now you are a very intelligent man and you know what I’m talking about and you know you’re going to be sanctioned if this continues so don’t let it continue.

Judge O'Meara, in front the jury, also characterized Barnett's requested jury instructions as, "a little bit of flim-flam", before telling the Motor City lawyer to "shut-up" during his closing argument. The judge also scolded Barnett that he was not listening to the court, and that Barnett was wasting the jury's time.

Perhaps the court's crowning insult to Barnett, however, was when Judge O'Meara belittled his theory of the case -that the officer involved had a reason to lie- as being outright "over-the-top mendacity".  In addition, when the jury sent out a note stating they were "hung" on the weapons charge because of confusion about the meaning of "reasonable doubt", the court instructed them to continue deliberating and provided this improvised instruction:

Reasonable doubt is something short of absolute certainty by some measurable distance. It means that if you have reasonable doubt, that there is no way a reasonable person can come to the conclusion that you need them to come to, to in this case find the Defendant guilty of two charges. 

While the Sixth Circuit Court of Appeals characterized O'Meara as "fair-minded", they found his series of belittling remarks prejudiced the jury against the defendant and reversed his conviction last week, remanding the case to the district court for a new trial. In doing so, the Sixth Circuit also concluded that the lower court improperly improvised the definition of "reasonable doubt" following the jury's request to have that term better explained.

So now Barnett's client gets a second chance at acquittal. Most prosecutors would agree that giving Marvin Barnett a second chance is something to avoid.

www.motorcitylegal.com

Detroit in Mid-2015

Since 2009, our lawyers have been generating law-related blog content. This is our newest creation; the very first post of the Motor City Law Blog.

Our law firm has developed many blogs; some are theme specific covering topics like divorce and criminal defense; others cover broader topics of legal interest.

In this blog, all posts will have a visceral connection to Detroit. Detroit has been bashed, smashed and abused. Now there is nowhere for Detroit to go but up. One thing about this city is that it always holds its head-up high.

The last few years have brought Detroit to its knees financially and politically; this year, we emerged from bankruptcy; just a few years ago, we saw a former mayor sentenced to 18-years prison in federal court. A new mayor, Mike Duggan, was the first white politician to be elected mayor in Detroit since the mid-1960s; he was a write-in candidate.

With this first post, we wanted to take stock in Detroit by focusing on a few statistics unearthed during the focus on the bankruptcy of our fair city. We will then seek out stories of interest, always with some legal angle and hopefully of interest to our readers.

We promise to be short; we promise to be sweet. We will scour our news feeds for Detroit-related meat; we will post the information and serve-up our connection. Hopefully, this will be of interest to our readers. In doing so, it is our avowed mission to add value, however minuscule, to our fair city.

We cannot promise that all the posts will be positive as this is not a dreamer’s blog; this is a blog about an ancient gritty city situated along the banks of the Detroit River and placed at the heart of the Great Lakes state. This is a blog about a once and future world-class city with the blue-collar blood of the original equipment manufacturers running through its veins.

So here is one set of measurements of Detroit in mid-2015, as we take its volatile temperature in this first post:

• When Detroit filed bankruptcy two years ago, it was $18 billion in debt, against only $1.5 billion in average annual revenue;
• Of the $11.4 billion in unsecured debts, nearly 80% was for employee pensions and health insurance coverage;
• The average retiree had an annual pension income of $19,000;
• The average pensioner received a 4.5% reduction in their benefit, but a 90% cut in health care coverage;
• Despite these reductions, 70% of the pensioners voted in support of the final bankruptcy plan;
• Police response time, nearly an hour pre-bankruptcy, has been cut to 18-minutes -the national average is 11-minutes;
• 2/3s of Detroit's ambulances were disabled on any given day; this has been cut to half of the fleet;
• Despite a largely disabled fleet, since emerging from bankruptcy, the average response time for an ambulance is now about 12-minutes;
• 40% of the city's streetlights do not function, with vandalism and age equally responsible;
• 78,000 abandoned structures lie within the city limits, with an average cost of $10,000 to demolish a single-family residence;
• homicides have fallen-off by 18%, with 72% of the cases getting closed.

No doubt, a tough road lies ahead. Stay tuned and lend a hand...

www.motorcitylegal.com