Three MSC opinions in, five remain

Mary Beth Kelly (lowrez)

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.

Stephen J. Markman (lowrez)

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.

6th Cir: Virtually all child porn activity falls under Commerce Clause

In United States v Bowers, the Sixth U.S. Circuit Court of Appeals overturned its 2001 decision in U.S. v Corp, holding that prosecutors do not need to show that child porn activity “substantially affects interstate commerce.”

The defendant maintained a scrapbook of naked photos that he took of his daughters 11-12 year old friends. Some of the photos were of naked adult women with the children’s faces pasted on heads. Bowers himself was naked in some of the photos.

Bowers argued that he could not be prosecuted under federal law because his activities were solely intrastate and he did not distribute the photos commercially. He relied upon the Corp decision, which held that the government must show that defendant’s activity substantially affects interstate commerce.

However, the unanimous panel held that the U.S. Supreme Court’s decision in Gonzalez v Raich. The Raich court held:

“Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced
for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.” Id. at 18. When the larger
“general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.” Id. at 17 (internal quotation marks omitted).

[Bowers, page 7].

The court held that the Raich decision effectively nullified the Corp decision, essentially gives the federal government jurisdiction over all child porn cases.

Bowers’s argument is misplaced, and we take this opportunity to make clear that, after Raich, this court’s decision in Corp is no longer good law.

Moreover, as outlined above, given Congress’s broad regulatory power in the child pornography arena, as well as its rational belief that wholly intrastate, non-commercial activity affects the larger interstate commercial market, a case-by-case analysis as
conducted in Corp would completely contradict the Supreme Court’s emphasis in Raich that where Congress has the federal power to regulate a class of activities, “the courts have no power to excise, as trivial, individual instances of the class,” Raich, 545 U.S. at 23 (internal quotation marks omitted), and the “de minimis character of individual instances arising under that statute is of no consequence,” id. at 17 (internal quotation marks omitted). We cannot envision, after Raich, a circumstance under which an as-applied Commerce Clause challenge to a charge of child-pornography possession or production would be successful.

[Bowers at 10, emphasis added).

Kilpatrick use of campaign funds to pay legal bills illegal, says AG Cox

Former Detroit mayor Kwame Kilpatrick violated the Michigan Campaign Finance Act when he used money from his campaign committee to pay legal fees related to his defense of perjury and obstruction of justice charges, said Attorney General Mike Cox.

In a 26-page opinion, Cox wrote that the expenses stemmed from charges “that originate from personal activity unrelated to performing the functions of the public official’s office[.]”

The opinion was requested by State Sen. Gilda Jacobs (D – Huntington Woods).

Cox is regarded as one of the frontrunners in the race to be the Republican candidate in the 2010 Michigan gubernatorial race.