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.