Shocking evidence: Oakland County program helps jurors with trial trauma

Television police dramas routinely feature gruesome crime scenes and postmortems performed in the clinical hush of the autopsy lab.

The small-screen version of violent crime and its gory aftermath is portrayed with a graphic frankness that most of us absorb without blinking. We remind ourselves that it’s just actors playing corpses, assisted by skilled makeup artists and remarkably realistic special effects. We sometimes wish they weren’t quite so good at their craft.

But the storyline and the actors playing the detectives, scientists and suspects are intriguing. We get frequent breaks to focus on other things, like the newest cars, fashions and personal care products, or to make two-minute runs to the bathroom and the fridge.

All of this helps us overcome our natural aversion to blood and gore and to instead accept it as entertainment. And if we can’t handle it, there’s always something else to watch.

In the harsh reality of a criminal courtroom, however, the blood and gore are not illusions. The crime-scene and autopsy photos are real. The testimony is real. The dead, the survivors and the horrific details, are real.

And the everyday citizens drafted to be jurors can’t change the channel.

In Oakland County this week, reports the Detroit Free Press, a jury will hear a case in which the defendant is accused of shooting his ex-girlfriend in the head while she was sleeping with their baby. He then allegedly returned to scene, soaked the bed with gasoline where the dead woman and the still-alive child lay and set it on fire, killing the child.

Jurors in that case, however, will have the benefit of Oakland County’s Juror Debriefing Program. Run by the Common Ground Sanctuary in Royal Oak, trained counselors will be available to help jurors who want help coping with the stress and trauma of dealing with disturbing evidence.

For years, Common Ground has provided assistance to individuals and families in crisis. Program coordinator Margo Eby, writes the Free Press’s L.L. Braiser, felt that “[h]elping jurors seemed like the next logical step.”

Juror debriefing programs are becoming a national trend as more and more jurors report stress and trauma associated with hearing emotionally grinding cases. The National Center for State Courts has been researching the problem and has a reading list available.

Voter photo ID law gets first test next Tuesday

Michigan’s not-so-new law requiring voters to show photo identification gets its first test this Tuesday, Nov. 6, in local elections around the state.


The long, conflicting road to a photo ID law

The law was one of several 1996 amendments to the Michigan Election Law. Before the law took effect, then-Attorney General Frank Kelly issued an opinion, in which he said the photo ID requirement violated the Equal Protection Clause.

The law lay dormant for eight years. In 2005, it was revived, unchanged, by other election law amendments, effective Jan. 1, 2007.

With Frank Kelly’s opinion lurking in the background, the House asked the Michigan Supreme Court to answer this question in an advisory opinion: “Do the photo identification requirements contained in 2005 PA 71 violate either the Michigan Constitution or the United States Constitution?”

In an order issued in April 2006, on a 5-2 vote, the question the court chose to answer was, “Do the photo identification requirements of Section 523 of 2005 PA 71, MCL 168.523, on their face, violate either the Michigan Constitution or the United States Constitution?”

Justice Marilyn Kelly dissented for two reasons. First, the House framed the question too broadly. Second, the question the majority agreed to answer was not the question asked. Justice Michael Cavanagh also dissented.

The court issued a 5-2 opinion, which held “that the photo identification requirement contained in the statute is facially constitutional under the balancing test articulated by the United States Supreme Court in Burdick v Takushi.”

Information from “Michigan’s Photo ID Requirement for Voters”

If you don’t have such ID, or you do and you left it at home, you can still get a ballot but you must sign an affidavit to that effect.

There’s a stiff penalty for lying about the status of your ID, or the lack of one: you could be convicted of perjury, pay a fine of up to $1,000 or spend up to five years in prison, or both.

They’re not fooling around.

What’s acceptable photo ID? The Secretary of State’s office has provided a helpful list.

There’s been much speculation about what effect the law will have on voter participation and whether it prevent the evil it was designed to cure – election fraud.

Here’s the take of Suzanne Lowe, Michigan Senate Bill Analysis Coordinator, in her article, “Michigan’s Photo ID Requirement for Voters.” It’s in the latest issue of “State Notes: Topics of Legislative Interest.”

According to the Secretary of State’s office, approximately 370,000 registered voters in Michigan (or about 5.0 percent of all registered voters in the State) do not have either a driver license or an official State identification card. There are no data on the number of voters who also do not have any of the other types of photo ID that the Secretary of State considers acceptable. Of the voters who do have photo ID, there is no way of knowing how many will not bring it to the polls because they forget to or do not know about the law’s requirement. It also is not possible to predict how many voters who do not have photo ID, or have it but do not bring it to the polls, will be unable to sign an affidavit because they cannot read or understand the document, or will be unwilling to sign one because they feel intimidated or embarrassed or simply do not want to take the time.

Whether the photo ID requirement actually represents a “barrier to the ballot box,” as critics contend, may be known only after the requirement is implemented, and perhaps only after it is enforced during the November 2008 general election. Whether the requirement serves to prevent voter fraud may never be know. Although there have been convictions in Michigan for illegal activity during voter registration drives, there does not appear to be any evidence of the type of in-person polling place voter impersonation that the photo ID requirement might deter. As some contend, this may be because of the difficulty of detecting such activity and catching the offenders. On the other hand, to the extent that such fraud does occur, it is questionable whether the penalty for signing a false affidavit will deter someone who is willing to commit a felony by voting under a false name or impersonating another elector.

Ohio Supreme Court pans Fieger client’s $30M verdict

It was the Ohio Supreme Court’s turn last week to do what Michigan appellate courts have done several times over the past few years – wipe out a multi-million dollar verdict for one of Geoffrey Fieger’s clients.

This time, it was a $30 million jury award for a 20-year-old man who was born with a damaged brain and other serious problems.

The reason the OSC brought the curtain down on the verdict? In part, it was Fieger’s “theatrics” in the courtroom.

Now, the trial judge wasn’t exactly blame-free either. As recounted by the OSC, the trial judge let Fieger’s expert testify, over defense counsel’s objection, about medical-care costs far in excess of the figure the expert provided in a written report. And then there was the judge’s in-the-hallway off-the-record instruction to jurors, some of whom admitted they saw a newspaper article about the trial. The judge’s on-the-spot attempt to unring the bell: he told the jury to disregard what they had read.

When the defense team demanded a new trial, the judge readily agreed. The OSC noted the trial judge’s acknowledgement that his miscue with the expert allowed the jury to think about, and award, $15 million in economic damages. And the newspaper article? The judge said he had read it, too, and he could easily see how some of the jurors may have been itching to give Fieger’s client a record-breaking award.

Another big influence on the jury, the trial court and the OSC agreed, was the man from Oakland County, Michigan and the way he conducted himself in court.


Some Michigan judges have seen it, said it before

Michigan’s appellate courts, on occasion, have been extremely critical of Geoffrey Fieger’s trial tactics, and have taken him to task for many of the same things discussed in the Ohio courts’ opinions. See, Powell v. St. John Hosp., Badalamenti v. William Beaumont Hosp., and Gilbert v. DaimlerChrysler.

The OSC echoed the trial judge’s observations that: Fieger was discourteous; there were plenty of theatrics; he interrupted defense counsel; he put his own words into the witnesses’ mouths; he mischaracterized evidence to mislead the jury and he brought the forbidden issue of attorney fees into play.

In closing argument, the OSC said, Fieger dwelled on a spoliation-of-evidence claim, even though the trial judge had earlier thrown it out. And he cast the case as an epic struggle between a poor black guy and rich, powerful corporate interests.

In the end, the OSC said the jury did pretty much what Fieger asked: it looked at its $15 million economic damages award on the verdict form and wrote another $15 million in the space for punitive damages.

After the trial judge entered the order for a new trial, the plaintiff’s team moved to disqualify him. Apparently, the trial judge had had enough and voluntarily recused himself from further proceedings.

Up in the Court of Appeals of Ohio, Eighth District, the majority and dissenting opinions reveal that none of the judges were concerned about the trial judge’s extracurricular handling of the newspaper article. The majority said Fieger hadn’t objected and defense counsel apparently had a private chat with the trial judge about the article. They weren’t about to reward a claimed error that defense counsel instigated.

The majority characterized Fieger’s performance as zealous representation. “While we agree that plaintiff’s attorney does not appear in the transcript to be the most likeable person, we do not find that his conduct rises to the level to justify the granting of a new trial.” In contrast, the dissenting judge spent 27 pages detailing what she called Fieger’s “manipulative trial technique” and “the extent of his outrageous melodrama” in his closing argument, which, she said, was enough by itself to warrant a new trial.

The majority said the defense team was not contesting liability on appeal, only the super-sized verdict. Because there was sufficient evidence to support the jury’s liability finding, there was no need for a new trial. The majority conceded that there were problems with the expert testimony on damages. Remittitur would be the correct remedy. And, “the trial court is in the best position to determine whether a damages award is excessive.”

The OSC said the appeals court was looking at the wrong thing. It’s not about whether there was sufficient evidence to support the jury’s verdict. It’s all about the trial court being in the best position to determine whether the jury’s verdict “was excessive and given under the influence of passion or prejudice” and whether counsel’s misconduct “tainted the verdict.” The OSC ruled that if there’s competent, credible evidence to answer “yes” to these inquiries, as there was in this case, the trial court does not abuse its discretion by ordering a new trial, and that decision “should remain undisturbed.”

A dissenting justice sided with the lower appeals court majority on the issue of remittitur.

He also had this to say:

To order a retrial because of the obnoxious behavior of an attorney does our system of justice no favors – such behavior must be dealt with as it occurs, not after a judge decides that a party may have benefited from it.

The verdict should be knocked down to $10 million, the dissenter said. That’s a lot closer to the evidence of economic damages.

And he closed with this zinger:

Should the plaintiff refuse the remittitur, he would be entitled to a new trial. Before that trial, it would be wise for the trial judge to deny any motion for admission pro hac vice filed on behalf of Mr. Fieger.

The case is Harris v. Mt. Sinai Medical Center.

Attorneys barred from this bar: tavern owners say ‘No Lawyers’

So, you want a back-yard swimming pool to come home to after a hot, busy day of running a tavern but your neighbor, an attorney, spoils your fun with a lawsuit.

One year and $10,000 later, you’ve got your pool. Now you want revenge.

You decide you’ll use your business to let the whole world know just how you feel about meddlesome members of the legal profession.

The result is Butch and Jody Morrison’s Crescent “No Lawyers” Bar & Grill in Boise, Idaho.

“They can’t be serious,” I thought, but an on-line search gave me some doubts. “No lawyers, no kids, no kiddin’,” popped up on one result. “If you practice law … keep your mouth shut,” another warned.

Okay, I had to know more. I called the Crescent and said, “Hi! I’m an attorney and I write for a legal newspaper in Michigan. I have a few questions. Is someone there who could me help out?”

As I sat on hold, I began to think that maybe I hadn’t said the right thing.

Pollsters say lawyers and reporters are among the most despised people on the planet. Two strikes against me. I took little comfort while scanning the Crescent’s Lawyer Jokes page and ran across this one:

A group of headhunters sets up a small stand near a well-traveled road. The bill of fare is as follows:
Sauteed Tourist $10
Braised Reporter $12
Fried Diplomat $15
Barbecued Lawyer $110
A customer, noticing the great price differential, asked why lawyers cost so much.
The headhunter replied, “If you had ever tried to clean one of those devils, you would understand.”

I checked the Crescent’s bill of fare, entitled “Legal Brief.” Appetizers included a “So-Su-Me Platter” and “Prosecution Prawns.” Other choices: “Witness Stand Soups & Salads,” “Jailhouse Sandwiches,” “Law Firm Specials” and “Courthouse Burgers.” There were only a couple of suspicious items. “Lawyer Limbs” are the Crescent’s version of chicken wings with hot sauce. And there are “Lawyer Fries,” but you’ll need to look at the menu yourself for the lowdown on that one.

A bit more browsing on the website started to produce other evidence (an on-line store and a light-hearted history of the Crescent) that this whole “No Lawyers” thing might just be a big tongue-in-cheek joke. That’s when the phone line clicked back to life.

The person on the other end apologized for the wait, explained I had called during the lunch hour rush and someone could be available later. A faux pas on my part, I insisted. I forgot about the two-hour time difference between Michigan and Idaho.

But I had to ask the pay-off question.

“So what happens if you actually find out someone is an attorney?”

“We charge ’em a lawyers fee,” she deadpanned.

Shaperio Bankruptcy Symposium: all about Chapter 13

There’s still time to register for the 3rd Annual Walter Shaperio Bankruptcy Symposium at the Westin Hotel in Southfield this Wednesday, Oct. 17.

Professor Scott Norberg, from the Florida International University College of Law, is all set to tell bankruptcy practitioners about “The Good, the Bad and the Ugly: What does Chapter 13 accomplish for debtors and creditors?”

Things get underway at 6 p.m. Chief Judge Steven Rhodes of the Bankruptcy Court for the Eastern District of Michigan would love to see you there.

Here’s a registration form with all the details.

For more information, call Leslie Berg at (313) 226-7950 or David Lerner at (248) 901-4010.

It’s not legit: jury duty calls are scam

You’re fairly certain that you haven’t received a jury duty summons, but the person on the phone, who claims to be a court official, says that you have, you didn’t show up and now the judge is angry enough to issue an arrest warrant.

This can all be cleared up, the caller continues, if you’ll just provide your date of birth, your Social Security number and some credit card information.

Hang up! Call the cops and the court the caller claimed to represent, warns State Court Administrator Carl Gromek, pictured on the left.

It’s a scam.

The only way Michigan state courts contact prospective jurors is by mail, Gromek said. “Be aware: prospective jurors can call courts, but courts don’t initiate those calls. And courts never call prospective jurors to get their financial information.”

The Niles Daily Star reports that this scam is currently being run in Berrien County, in the southwest part of the state.

Gromek has these pointers to avoid have your pocket electronically picked:

  • Courts do not contact citizens by phone regarding jury duty. Be suspicious if a person calls claiming to be a court official or staff person.
  • Be skeptical if you are told, “In order to avoid prosecution for missing jury duty, you must provide your social security number now so we can verify your information.”
  • Be suspicious if the person pressures you for immediate action or refuses to send written information for you to review.
  • Never give out your bank, credit card, or social security information over the phone to someone who calls you.
  • If you are uncomfortable, hang up, even if the caller threatens prosecution.
  • Report suspicious calls to local police.

We’re pretty sure it won’t be boring

Dictionary publishers looking to illustrate the word “outspoken” could do no better than by printing the photograph on the right.

That’s not-so-instantly-recognizable attorney Geoff Fieger, the hands-down favorite for the title of “Michigan’s Most Controversial Attorney Ever,” behind the yellow tape. The image is part of “Fieger: Inside Out,” a collection of work being displayed by artist Holly Flory at The Print Gallery & Everything Art in Southfield through Nov. 1.

The gallery is located near 12 Mile Rd. and Northwestern Highway. Call 248-356-5454 for more information.

Another form of bankruptcy

They pile up.

More and more keep coming every day.

You know you need to deal with them.

“But what I really need,” you think to yourself, “is a fresh start.”

We’re not talking about a big stack of bills. We’re talking about all of that stuff in your e-mail in-box.

We’re talking about declaring “e-mail bankruptcy.”

Michelle Kessler, in a USA Today article, says that some “prominent techies” are dealing with jam-packed in-boxes “by declaring ‘e-mail bankruptcy’ – deleting or archiving an entire in-box and starting over.”

One guy wiped out a three-year backlog that way.

Drastic stuff, but sometimes desperate situations call for desperate measures.

Kessler writes that Intel, the giant chipmaker, is taking a more measured approach to email overload by declaring “Zero E-mail Fridays.” Intel’s engineers are being encouraged to pick up the phone instead, or even meet face-to-face with colleagues.

But if a zero e-mail day (or even two) each week doesn’t solve your overload problem, the nuclear option of total e-mail bankruptcy may be the answer.

Unless, of course, you’re getting this blog fed to you via e-mail. There is such a thing as being overzealous.

We’d prefer that you think of us as an exempt asset, instead.

We’re not discretionary

What do cable or satellite television, sports and concert tickets, car repair, golf greens fees, marina fees, movies, and hair cuts have in common with legal fees?

These are among the services that won’t be subject to Michigan’s 6 percent sales tax.

The exemptions were part of some last-minute negotiations that helped push through a budget deal much earlier today to avoid a state shutdown.

But services such as bail bonding, bondspersons, consulting and lobbying, private investigators, couriers and messengers, and document preparation will get hit with the state sales tax.

According to an Associated Press report, state Treasurer Robert Kleine explained that “[e]xtending the sales tax to some services starting Dec. 1 would bring in an estimated $614 million for the 10 months remaining in the fiscal year at that point, or about $750 million annually.”

So, why were some services hit with the sales tax and not others?

A quick look at a partial list of what’s being taxed and what isn’t might leave you scratching your head.

The AP offered this explanation, attributable to Kleine: “The tax is designed to apply to services that people don’t have to use if they want to avoid the tax.”

The Detroit News had this take from Kleine: “lawmakers took care to skip services that are deemed unavoidable, such as plumbing and car repairs. ‘It’s discretionary only,’ he said.”

So, a lawyer’s services are considered just as essential as getting that leaky faucet fixed or that gummed-up carburetor overhauled.

Good news for law firms and their clients.

But having the untaxed services of an attorney, plumber or mechanic is apparently just as vital as being able to watch The Weather Channel or teeing one up and smacking it straight down the fairway without the state taking a cut of the action.

Governor Jennifer Granholm and state lawmakers are keeping mum about this for now.

But a lot of explaining will need to be done later.

Black-robe blues: less green next payday

As the politicians bicker, posture and finally begin to wheel-and-deal in the 11th hour to solve Michigan’s lack-of-budget problem, the state’s 621 judges can look forward to lighter paychecks next week.

It works like this: without a budget in place by Monday, Oct. 1, the state legally can’t spend any money. Payroll deadline was Wednesday, Sept. 26. The judges’ checks are for two weeks of work and include pay for work done through the end of payday. The next time the eagle flies for the judges is Thursday, Oct. 4.

In a decision that any reviewing jurist would undoubtedly find legally impeccable but perhaps personally distasteful, the state determined that the only way to stay within payroll policy and the law was to not pay the judges for work done Oct. 1 through the end of the current pay period.

Their checks will be about $2,000 short, on average, according to a report in the Grand Rapids Press.

There will be a make-good after a new budget is in place.