Asleep at trial: nonprejudicial nap

As prosecutions go, the one against Arthur Muniz was a slam dunk for the Wayne County prosecutor’s office.

Muniz was charged with shooting Gutierrez, his old girlfriend’s new boyfriend, once in the arm and once in the head.

Muniz admitted he was at the crime scene with a gun but said that someone else — Muniz didn’t know who — fired the shots that injured Gutierrez.

Gutierrez fingered Muniz as the shooter. So did another witness who was in the car with Gutierrez. A Detroit cop said Gutierrez, while bleeding from his wounds, identified Muniz as the shooter.

Muniz’s own mother took the stand and said her son called her after the shooting and confessed.

The jury found Muniz guilty of assault with intent to murder, felon in possession of a firearm and felony firearm.

The jury apparently placed no credence in his claim, elicited by the prosecutor on cross-examination, that everyone but him was lying under oath.

Huh? Wait a minute. Under People v. Buckey, 424 Mich. 1 (1985), prosecutors can’t ask defendants to comment on the credibility of the prosecution’s witnesses.

Defense counsel should have objected.

And maybe he would have had he been awake.

According to a juror’s post-trial affidavit, defense counsel was sound asleep during the prosecutor’s cross-examination. The juror averred:

While the prosecutor was cross-examining Mr. Muniz, I glanced at defense table and was surprised to see that Mr. Muniz’[s] defense attorney [was] sleeping[.] … It was apparent to me that Mr. Muniz’[s] attorney was actually sleeping through a portion of his client’s testimony.

Muniz said his convictions should be overturned because counsel slept during some of the trial.

And then there’s that matter of defense counsel’s arrest for possession of cocaine three weeks before Muniz signed on as a client.

Muniz also claimed counsel was using cocaine during the trial. Muniz argued that drug use would explain counsel’s allegedly crummy direct examination of the defense’s private investigator, and would also explain the many alleged defense errors that ticked-off the trial judge.

Muniz offered no evidence that counsel was actually using drugs during trial. Moreover, counsel was licensed to practice trial although his license was later suspended.

The Michigan appellate courts turned down Muniz’s motion for new trial based on ineffective assistance of counsel.

He fared no better with his habeas petition in the U.S. District Court.

At the 6th U.S. Circuit Court of Appeals, Muniz argued that when counsel sleeps during a client’s trial, prejudice should be presumed under United States v. Cronic, 466 U.S. 648 (1984).

But Judge Eugene Siler said sleeping counsel cases decided under Cronic focus on how long counsel was asleep. The cases that bring habeas relief are those in which the attorney sleeps for substantial portions of the trial.

In denying relief, Siler told Muniz, in effect, that his attorney just took a short nap.

Nothing presumptively prejudicial about that.

Siler reviewed the juror’s affidavit and concluded that:

Muniz’s attorney was asleep for an undetermined portion of a single cross-examination. The record shows that Muniz’s attorney was not asleep for the entire cross since he objected near the end of the questioning. This is especially significant, given that the total cross-examination was fairly short, spanning only 26 pages of trial transcript.

Muniz’s lawyer therefore must have only been asleep for a brief period. This is in contrast to Tippins [Tippins v. Walker, 77 F.3d 682, 687 (2d Cir. 1996)], in which the trial judge himself “testified that [defense counsel] ‘slept every day of the trial.'”

Muniz did no better under Strickland v. Washington, 466 U.S. 668 (1984).

Under Strickland, wrote Siler, a habeas petitioner must show that counsel’s performance was deficient, and the deficiency prejudiced the petitioner’s case.

[B]y putting forward the affidavit of a juror who witnessed Muniz’s attorney sleeping Muniz has made a sufficient showing that the standard of conduct by his attorney fell below the objective standard of reasonableness.

There is no suggestion in the government’s brief, nor could there be, that Muniz’s attorney fell asleep at trial because in his “reasonable professional judgment” it was the best course of action.

But showing prejudice is quite another matter.

There was a mountain of evidence against Muniz. There was only Muniz’s conjecture, but no evidence, that counsel used drugs during trial and screwed up as a result.

And besides, defense counsel didn’t sleep away most of the trial, he just took a short cat nap.

The case is Muniz v. Smith.

Little Manistee Trail is not a ‘highway’

In its final opinion of a topsy-turvy term, Duffy v. Dep’t of Natural Resources, the Michigan Supreme Court has ruled that a trail maintained by the Department of Natural Resources is not a “highway” under the Governmental Tort Immunity Act.

The trail in question is the Little Manistee Trail, which, according to the opinion, is a “trailway” no where near a highway. That distinction made a difference in the decision.

The Trail is properly classified as a “trailway” within the distinct meaning of that word in Michigan’s statutory law, and this “trailway”– which is miles away from any highway — is not within the scope of the highway exception because it is not a “trailway . . . on the highway.” Id. Furthermore, because the Legislature determined that only trailways on the highway are deemed highways, and because this Trail therefore is clearly not a highway, we refuse plaintiff’s invitation to avoid the statute and make the Trail into a highway by calling it a road. In summary, all roads, forest roads, trails, trailways, and highways in this case lead to the conclusion that plaintiff’s claim is barred by governmental immunity.

Justice Stephen J. Markman wrote the majority opinion, joined by the usual suspects. The decision seems somewhat narrow to this situation, leaving the door open for a “trailway” alongside a highway.

[I]n drafting the statutory definition of “highway” in MCL 691.1401(e), the Legislature created two classes of terms that are considered “highways”– (1) those terms that are “highways” per se, i.e., a “public highway, road, or street that is open for public travel,” and (2) those terms “included” as highways, such as
“bridges, sidewalks, crosswalks, and culverts,” but only if they are “on the highway.” Notably, when the Legislature amended the definition of “highway” in 1999 to add “trailways,” it added this term to the second category of covered structures, each of which is modified by “on the highway.” If the Legislature had intended that all trailways—no matter where they are located and irrespective of their relationship to the highway– should be considered highways, it would have added “trailways” to the first category of
covered structures. But it did not.
By including “on the highway” in MCL 691.1401(e), the Legislature limited the universe of “bridges, sidewalks, trailways, crosswalks, and culverts” that are considered “highways” for purposes of the highway exception. This limitation is perfectly reasonable because it would be odd if a sidewalk in the middle of a meadow or a trailway in the middle of a forest, neither of which is anywhere near a bona fide highway, were considered a “highway” for purposes of governmental immunity. Therefore, it is
important to give effect to this essential limiting clause, no matter how inartfully worded.

In a dissent, Justice Marilyn Kelly argued the Trail should be considered a road because it is used by the public as one.

As poet James Whitcomb Riley is said to have remarked, “When I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.” Riley’s quip is apropos to this case: when I see a thoroughfare that looks like a road and has signage like a road and is used by the public as a road, I call that thoroughfare a road.

And that, according to MSC public information officer Marcia McBrien, is it for the weekend.

Plaintiff must show experimental medical procedure is effective in no-fault action

In the second-to-last Michigan Supreme Court decision of the term, the court has found that a first party no-fault plaintiff must show verifiable and objective medical evidence that an experimental procedure is effective in order to prevail.

In Krohn v. Home-Owners Insurance Co., the plaintiff went to Portugal for experimental spinal surgery after suffering catastrophic injuries in an auto accident . The surgery wasn’t FDA approved and wasn’t available in the U.S. He was warned by his doctor that the surgery was dangerous, experimental and likely wouldn’t be covered by insurance.

The no-fault insurer told the plaintiff it wouldn’t pay for the surgery, but would pay for tests to see if he was a candidate and therapy sessions after. After having the surgery, he sued the no-fault insurer for the cost of the surgery.

After the surgery, the plaintiff reported some improvement in his condition. The majority, in an opinion written by Justice Brian Zahra, said experimental procedures aren’t all excluded by coverage, but more is required than the plaintiff’s perceptions that it worked/will work.

We reject defendant’s position and conclude that experimental treatments are not necessarily barred from being compensable under the no-fault act. The ultimate question whether the surgical procedure at issue here is a covered expense under the no-fault act does not turn on its status as experimental. Rather, like all claims for allowable expenses, the question turns on whether the procedure was reasonably necessary for plaintiff’s care, recovery, or rehabilitation.

Zahra wrote that the test for whether something is “reasonably necessary” must be an objective standard. Specifically, in footnote 47, the majority approved of the Court of Appeals’ assertion that using hindsight evidence, i.e. “it worked” “is inconsistent with making an objective determination of whether medical treatment was ‘reasonably necessary.’”

Zahra defined the experimental procedure test as follows:

Thus, a service, product, or accommodation must be (1) objectively reasonable and (2) necessary for an insured’s care, recovery, or rehabilitation. If, as in this case, the service under consideration is an experimental surgical procedure, the insured must present evidence that the surgery may result in care, recovery, or rehabilitation. In other words, there must be evidence that the surgery is efficacious. Further, because a surgery involves the exercise of medical judgment, the efficacy determination must be based on objective and verifiable medical evidence. Experimental surgical procedures lacking objective and verifiable medical evidence of their efficacy cannot be “reasonably necessary” simply because it cannot be shown to effect the insured’s care, recovery, or rehabilitation. …

If a surgical procedure is experimental, an insured cannot establish its reasonable necessity under MCL 500.3107 unless expert testimony indicates that the surgery presents a reasonable chance that it will be efficacious in the injured person’s care, recovery, or rehabilitation.

MCL 500.3107(1)(a) does not require that medical treatment be shown to have gained general acceptance within the medical community. Rather, an insured must present objective and verifiable medical evidence that medical treatment is efficacious in an injured person’s care, recovery, or rehabilitation. If there is objective and verifiable evidence that an experimental surgical procedure is efficacious, the finder of fact can begin to make an informed decision in regard to whether the treatment was reasonably necessary by considering whatever factors were relevant in that case, which may include but are not limited to the severity and chronicity of the condition, the outcomes of any previous treatments, the likelihood that alternative treatments would be efficacious, a personal physician’s recommendation in conjunction with the a patient’s preference, and both the short-term and long-term risks and benefits. Absent objective evidence to establish that the experimental surgical procedure is at least efficacious, there would not exist a material question of fact about whether the medical treatment was reasonably necessary to the care recovery or rehabilitation of an insured.

In a dissent, Justice Diane Hathaway accused the majority of adding to the statute:

The majority holds that in order for an expense related to an experimental surgical procedure to be “reasonably necessary,” a court must first determine as a matter of law that there is “objective and verifiable medical evidence establishing that [the experimental surgical procedure] is efficacious.” Further, the majority holds that plaintiff did not meet the “objective and verifiable medical evidence” standard because Dr. Lima’s research “was unsupported by any controlled studies, it was not subject to  peer review, and the medical evidence was not debated in scholarly publications.” Thus, the majority’s new standards add language to the statute that is simply not there.

She also disputed the majority’s result under its own holding, stating that 40 of the 110 people who have had the surgery came from the doctor whose opinion the majority relied upon to dispute the “efficaciousness” of the procedure, the ironically named Dr. Hinderer.

Only one opinion left.

MSC affirms conviction despite basic “duty to retreat” instruction in castle doctrine case

In People v. Richardson, the Michigan Supreme Court considered a defendant’s claim of self-defense. After a boondoggle¹ between the Richardsons and their neighbors, the Abrams, in which names were called, rocks were thrown and spit was, well, spit, Brandy Abrams came to the Richardson’s door with a baseball bat to challenge Ms. Richardson to fight. After what can properly be described as a heated exchange, the defendant decided he’d had enough, grabbed a gun and stepped out on the porch.²  Shots were fired and Abramses were hit.

Richardson said he was acting in self defense  because he was on his porch and, under the castle doctrine, he had no duty to retreat. He was convicted of assault to do great bodily harm less than murder and felony-firearm in the Wayne Circuit Court.

The dispute on appeal was whether the trial court properly instructed the jury on self defense. The jury was read an instruction for basic self defense, including the general duty to retreat, along with the exceptions, including the castle doctrine. Initially, the judge didn’t explain that curtilage is considered part of the home under Michigan’s castle doctrine statute, MCL 768.21c , but did so after the jury asked for a clarification of the definition of “home.”

The Michigan Supreme Court affirmed the conviction. Justice Marilyn Kelly wrote for the majority:

We wholeheartedly agree with the dissent that the castle doctrine and the right of personal self-defense are longstanding and precious rights that we must vigorously uphold. But this case jeopardizes neither. The factual dispute was whether defendant honestly and reasonably believed that he was entitled to use deadly force. The court correctly instructed the jury that defendant had no duty to retreat if attacked in his home. Once the trial court clarified
that the porch was part of defendant’s home, the jury instructions removed any remaining questions about whether defendant had a duty to retreat. We further agree with the dissent that had the jury not been instructed that a person has no duty to retreat when attacked in his or her home, reversal would have been required. Our decision in Pond v People and 150 years of subsequent caselaw clearly mandate such a result.
But nothing in that caselaw required the judge in this case to sua sponte give the jury an instruction not to let the fact that defendant did not retreat into his house enter its deliberations. People v Riddle addressed this question in a footnote in dictum. But we do not agree that the footnote mandates reversal in the instant case. As noted, the success of defendant’s self-defense claim did not hinge on whether he was required to retreat or stand his ground on his porch. Rather, it hinged on whether he honestly and reasonably believed that it was necessary to use deadly force while standing his ground. After being properly informed that defendant had no duty to retreat if attacked in his home, the jury concluded that deadly force was not necessary. It recognized that the evidence showed that defendant was unharmed and could have continued to stand his ground and remain unharmed without shooting the victims. The dissent makes the right arguments in the wrong case.

In his dissent, Justice Stephen Markman wrote that Richardson’s conviction should have been vacated because the jury should never have been permitted to consider retreat as an option because the Adamses were in the curtilage of Richardson’s house, and there’s no duty to retreat in the home.

¹ This is highly technical legalese. Use with caution.

²  This decision will forever be memorable to me for this passage:

It is agreed that at this point defendant remonstrated that he was “getting tired of this shit,” pulled out one of his three loaded handguns, and fired six times.

MSC: Affidavit of merit not a pleading, can’t be amended retroactively

Since it was decided in 2009, the Michigan Supreme Court’s decision in Bush v. Shabahang has been used by the Court of Appeals to allow plaintiffs to fix several different types of defects in medical malpractice-specific pleadings.

But the court’s decision in Ligons v. Crittendon Hospital denied a plaintiff the opportunity to amend a defective affidavit of merit (AOM) and dismissing the case.

Writing for the majority, Justice Brian Zahra said the AOM isn’t a “pleading” under the court rules, so any rule allowing an amended “pleading” doesn’t apply.

An AOM, even if required to be appended to a complaint, is not included in this restrictive definition of a “pleading.” Plaintiff relies heavily on a statement in Barnett v Hidalgo, which described an AOM as “part of the pleadings” in determining that an AOM is “generally admissible as an adoptive admission[.]” But plaintiff fails to appreciate the context in which the statement was made: describing a document as “part” of the pleadings when addressing an evidentiary issue does not turn the document into a pleading for purposes of MCR 2.118(D) if it does not meet the definition in MCR 2.110(A).60 Indeed, elsewhere Barnett clearly referred to the AOM as distinct from the complaint, stating that AOMs “are required to accompany a complaint . . . .” Id. at 160. Under MCR 2.110(A)(1), for purposes of the court rules it is the “complaint” itself that constitutes a “pleading,” not the complaint and any document accompanying it. Barnett neither held nor relied on the premise that an AOM is a pleading for purposes of the rule permitting amendment of pleadings, MCR 2.118

Zahra also wrote that Bush doesn’t apply to AOMs either.

The Bush Court’s application of MCL 600.2301 to a medical malpractice NOI was rooted in the Legislature’s 2004 amendment of MCL 600.5856(c), the notice-tolling statute, and does not apply to AOMs. Unlike NOIs, which give notice to defendants, AOMs are meant to weed out frivolous cases before they are ever filed. Applying Bush beyond the scope of the 2004 amendment of MCL 600.5856(c) and NOIs to AOMs would be an unwarranted expansion of its focus on the notice-tolling statute, would free the opinion from its statutory moorings, would frustrate the purpose of the AOM requirement, and would create unnecessary conflict with existing caselaw, such as Kirkaldy, which Bush did not overrule. We therefore decline to apply the rationale of Bush beyond its limited statutory focus.

The majority said dismissal with prejudice is required in such circumstances.

Justice Michael Cavanagh dissented, arguing that the AOM in the case wasn’t defective because the statute doesn’t require specificity, and even if it was, the statutes don’t require that the case be dismissed with prejudice.

Nevertheless, assuming arguendo that the AOM in this case was deficient, I believe that MCL 600.23013 should apply to allow a cure of the alleged deficiency within the AOM. To begin with, applying MCL 600.2301 would not conflict with MCL 600.2912d, when the latter is read as a whole. Indeed, as recognized by Justice HATHAWAY, the AOM statute does not expressly provide a penalty for deficiencies within the contents of an AOM. And, notably, the allowances of additional time to file an AOM in MCL 600.2912d(2) and (3) do not explicitly preclude amending or disregarding defects within the contents of an AOM. Instead, those provisions merely provide a plaintiff additional time in which to file the initial AOM and, thus, do not address curing an arguably defective AOM. And while I continue to adhere to my position in Kirkaldy v Rim, 478 Mich 581, 586-587; 734 NW2d 201 (2007) (CAVANAGH, J., concurring), as Justice HATHAWAY suggests, allowing a defect within an AOM to be cured under MCL 600.2301 would simply provide an alternative remedy to that of Kirkaldy, in which the majority opined  that the remedy for a successful challenge to a deficient AOM is dismissal without prejudice, id. at 586 (majority opinion). Accordingly, I believe that MCL 600.2301 should apply.

Justice Diane Hathaway also argued that the statute doesn’t require the specificity the majority is requiring.

The Legislature chose not to incorporate any of these phrases heightening the level of specificity in the AOM statute. If the Legislature had chosen to incorporate such qualifying language in MCL 600.2912d(1), then the majority might have a basis for its conclusion. However, MCL 600.2912d(1) is silent concerning the level of specificity with which the information in an AOM must be conveyed. Nothing in the plain language of this statute mandates the heightened level of specificity that the majority demands, and this Court is not free to add words or phrases to a statute. Thus, the requirement that the AOM “shall contain a statement of each of the following” simply means what it says. The statute requires that “a statement” must be made, not a “detailed statement,” “a complete statement,” or a “full explanatory statement.”

One of the other two MSC decisions that are supposed to be out today, Driver v. Cardiovascular Clinic, will also deal with application of Bush v. Shabahang and Burton v. Reed City Hospital. Stay tuned.

MSC overturns ‘Champion,’ finds employer not liable for employee quid quo pro sexual harassment

In Hamed v. Wayne County, the Michigan Supreme Court overturned its holding from Champion v. Nation Wide Security that imposed  liability on employers for the quid pro quo sexual harassment by a supervisory employee under the Michigan Civil Rights Act (CRA).

For the 4-3 majority, Justice Mary Beth Kelly wrote that the Champion court ignored traditional common law principles of respondeat superior which were incorporated into the CRA by reference.

First, we note that Champion’s holding was contrary to the plain language of the CRA. As we explained in Chambers, the CRA specifically incorporates common-law agency principles in its definition of “employer.” Michigan’s common-law agency principles, however, do not include the aided-by-agency exception, and the Legislature did not modify the common law by including the aided-by-agency exception in the CRA. The Champion Court failed to recognize this clear intent. Rather, like the dissenting justices here, the ChampionCourt reasoned that the remedial purpose of the civil rights law justified holding the defendant employer vicariously liable for the acts of its employee, based on an apprehension that adherence to traditional agency principles would completely foreclose employer liability for quid pro quo sexual harassment claims.

Aside from failing to give effect to the Legislature’s intent, this reasoning is flawed for two additional reasons. First, it wrongly elevates the CRA’s general remedial purpose above its plain language. Such reasoning is contrary to the cornerstone of statutory interpretation, which is the rule that the plain language used is the best indicator of the Legislature’s intent. Second, the policy concern at the heart of Champion is fundamentally flawed because it was premised on an unfounded fear. Application of
traditional agency principles does not foreclose employers from vicarious liability in the context of quid pro quo sexual harassment claims. An employer may still be liable for and act of quid pro quo sexual harassment that was committed within the scope of employment or for a foreseeable act that was committed outside the scope of employment. Thus, liability may certainly attach if there is sufficient cause to impute the employee’s or agent’s acts to the employer because the employer knew of the employee’s propensity to commit the type of act involved.

Kelly also said the Championcourt relied on federal case law interpreting the federal statute, which is different than the Michigan CRA.

Three justices dissented. Justice Michael Cavanagh wrote that Champion was correctly decided, noting that it was a unanimous decision at the time.

In light of this understanding of the CRA’s purpose and the Legislature’s intent in enacting the CRA, I believe that Champion properly advanced the legislative intent by ensuring that clearly discriminatory conduct is eradicated. The majority’s interpretation, however, bars plaintiff from pursuing a claim in furtherance of this goal and ignores “the legislative intent that employers, not the victims of sexual harassment, bear the costs of remedying and eradicating discrimination.” Champion, 450 Mich at 714. The majority erroneously discards Champion’s interpretation of the legislative intent as based “purely on policy considerations,” ante at 22, and ignores the fact that the policy considerations discussed in Champion were the motivation behind the Legislature’s enactment of the CRA. As a result, “in seeking to shield employers from liability, the majority instead places the burden of preventing an abuse of authority and the corresponding harm on people powerless to prevent it.” Zsigo v Hurley Med Ctr, 475 Mich 215, 236; 716 NW2d 220 (2006) (MARILYN KELLY, J., dissenting).

Cavanagh said the majority is wrong “under any standard” based on the deputy’s previous conduct and violation of jail policies requiring female officers to be present anytime a female inmate is in jail.

MSC vacates conviction over Confrontation Clause issue

In People v. Fackelman, the Michigan Supreme Court ruled that the prosecution’s failure to call an independent psychiatrist to testify during trial violated the Confrontation Clause.

In the majority opinion, Justice Stephen J. Markman wrote that the psychiatrist’s opinion was essentially the tiebreaker in the “battle of the experts” and had great importance because 1) the exam took place soon after the alleged crime and 2) the expert had no affiliation with either party.

[O]ur review of the record leads inescapably to the conclusion that Dr. Shahid [the independent expert] was a true “witness against” defendant. The ultimate issue at trial was not whether defendant had actually engaged in the conduct that led to the criminal charges; instead, it was whether he was legally insane at the time. At trial, the medical term that both testifying experts used as shorthand for describing legal insanity was “psychosis,” which, as the prosecutor’s expert explained to the jury, is “when a person loses touch with reality.” Repeatedly, the jury’s attention was focused on this particular mental state. The experts defined “psychosis,” described the symptoms of a person in a “psychotic state,” debated whether a person “could slip in and out of [psychosis] at various time frames,” offered their opinions regarding the effect of psychosis on memory, and rendered their own diagnoses in terms of whether defendant was experiencing psychosis, with the defense expert, Dr. Mistry, concluding that he was and the prosecution’s expert, Dr. Balay, concluding that he was not. In this context, the prosecutor’s improper introduction and repeated use of Dr. Shahid’s diagnosis that defendant was not, in fact, experiencing psychosis fully rendered the doctor a witness against defendant.

Markman also noted that, even if otherwise proper, the report was misused because only the facts and data, and not the diagnosis, would be admissible under MRE 703

In all, Markman said the use of the report and diagnosis was plain error that was outcome-determinative because the sole issue of the trial was the defendant’s mental state.

Chief Justice Young dissented, joined by Justice Brian Zahra, arguing that the defendant waived his Confrontation Clause argument because he didn’t call the witness either. Such a decision was a strategic one because, “he believed that the author would be a bad witness for the defense and would undermine the proffered insanity defense,” Young wrote.

Markman and Young squared off in the opinions over whether the medical reports are testimonial under Melendez-Diaz v. Massachusetts.

Out of work and out of luck

The job market in Michigan has for some workers become like a game of musical chairs, and someone keeps swiping the seats from the game. The result has meant that some out-of-work Michiganders, and there are a lot of them – about 500,000, according to the State of Michigan – take longer to find work than they might have needed in a robust economy.

And though those workers have no control over the economy as a whole, they are certainly feeling penalized for being out of work, even if their jobless state is not of their own making.

According to a story in the New York Times this week, employers are openly admitting to excluding the unemployed from …. well, being considered for employment. Want ads in a sampling of papers around the country make it clear that the out-of-work need not apply.

In an economy that’s the worst for workers since the Great Depression, some Michigan lawmakers are saying that’s not fair, and earlier this year introducted House Bill 4675, which would prohibit employers seeking to hire workers from discriminating against the unemployed.

It’s a nice thought, but the bill probably has no chance of passing. And even if it did, what good would it do?

Bingham Farms-based employment lawyer Robert M. Vercruysse said that many employers find the unemployed to be attractive job candidates. He noted that they are able and eager to start work immediately, and “there are no non-compete issues and they will generally take the job offer at the pay range posted.”

But for those who don’t see the practical upside of hiring unemployed workers, proving that an employer is refusing to consider the jobless candidate would be “very difficult to prove,” he said.

Larry Flynt would be proud

It’s a great day for those who believe in the power of free speech in advertising. In a way, anyway.

The Associated Press reports that federal Judge John Corbett O’Meara ruled Michigan’s restrictions on signs promoting sexually oriented businesses is unconstitutional.

[O’Meara] ruled in favor of the Penthouse Club, a Detroit strip club. He says the new law violates the First Amendment because it bans all images on signs.

The law says signs outside an adult business can only display words, numbers and trademarks. The Penthouse Club has a large sign with a woman in a short skirt and skimpy top.

The judge issued a preliminary injunction stopping enforcement of the law, which took effect in March. O’Meara said Tuesday the law illegally singles out sexually oriented businesses only.

To look at the ad in question, click here. You’ll note that the frame — and the size of it — looks like it was taken from the props department of “Caligula,” another Bob Guccione venture.

 

Three MSC opinions in, five remain

Justice Mary Beth Kelly

The Michigan Supreme Court released opinions in three of the eight cases that remain pending for the 2010-2011 term.

All three opinions released yesterday were criminal cases.

In the first, People v. Kowalski, the court found that the trial judge’s omission of the actus reus was a plain error, but upheld the defendant’s conviction for accosting a minor for immoral purposes or encouraging a minor to commit an immoral act. The court found that defendant effectively waived the issue because his counsel didn’t object to the jury instruction, and even if he didn’t waive it, the prosecutor produced sufficient evidence at trial to support the jury’s guilty verdict. The count was 7-0, but Justices Michael Cavanagh and Marilyn Kelly concurred in the result only. Cavanagh wrote a concurrence in which he disagreed with the lead opinion’s waiver analysis. He also suggested the lead opinion should have applied a harmless error analysis for a constitutional error, rather than the plain error analysis it used.

Justice Stephen J. Markman

In People v. Huston, the court considered whether to upgrade the defendant’s sentence for engaging in “predatory conduct” on a “vulnerable victim.” In the majority opinion, Justice Markman wrote that the preoffense conduct need not be directed at “any specific victim,” just a victim, to be considered predatory under the statute, and the victim need not be “inherently vulnerable.”

Instead, a defendant’s “predatory conduct,” by that conduct alone (eo ipso), can create or enhance a victim’s “vulnerability.”

This was a 6-1 decision with Justices Diane Hathaway and Marilyn Kelly concurring in the result but dissenting to the part about predatory conduct. Justice Michael Cavanagh dissented.

Finally, in People v. Bonilla-Machado, the court found that a prison employee is a “person” to establish a continuing pattern of criminal behavior for scoring offense variable 13. Probably more importantly, it held that the application of enhanced maximum sentencing is discretionary and not mandatory as the trial court had stated. The justices quibbled over the scope of crimes OV 13 can be scored.