Where’s the injustice?

Lesson to lawyers with aspirations to solve the justice system’s flaws: be sure you pick the right battlefield on which to fight.

One lawyer last week irked Michigan Supreme Court Justice Elizabeth A. Weaver when he argued on application the injustice of his client’s sentence. In People v Kade, Bernard Kade had pleaded guilty to third-degree fleeing and eluding and was informed by his lawyer that the maximum sentence would be five years.

However, Kade was a habitual offender, having been convicted twice of operating under the influence, and he was sentenced to a minimum of two years, six months, and a maximum of 10 years. The trial court denied his motion to withdraw his plea.

Attorney Dana B. Carron said that he should have been informed of his maximum possible sentence as required by MCR 6.302(B)(2).

Kade served 30 months, and by the time Carron was in front of the Michigan Supreme Court, Kade was actually out of prison and was sitting in the courtroom.

And that made Justice Stephen J. Markman ask, “Why isn’t this case moot? … Is it his intent to withdraw his plea?”

Carron said it won’t be moot until his client is released from parole.

“He’s willing to take the potential punishment in order to gain for everyone else,” Carron said.

Carron said that in his line of work he’s seen hundreds of defendants charged as habitual offenders, and the judge almost always enhances their sentences, so they should be made aware of that during the plea negotiations.

Justice Robert P. Young asked why Kade’s attorney didn’t just tell him as much.

The best a judge could do before sentencing is give an “indeterminate ‘something really bad could happen to you'” warning about habitual offender sentencing enhancements, Young said.

And allowing defendants to withdraw their pleas at sentencing would create havoc in plea negotiations, said Prosecuting Attorney Marilyn J. Day.

“The only problem with allowing the withdrawal of a plea … now you’re at sentencing,” Day said. “The prosecutor is in a bit of a bind because they were relying on that plea.”

Still, she added, that bind is better than defendants appealing after the fact.

“What’s the problem here? Where’s the injustice?” Weaver asked. “You have given us not one bit of reason but intellectual theorizing in the future.

“If you want to argue about other cases in the future … when that case comes maybe we’ll here it.
That’s where I am. You’ll have to convince the rest of these people to take this case.”

She said she simply couldn’t find one reason  that the court should grant Kade any relief.

“Is it really unjust,” she asked, “that he might have to behave himself” for the duration of his probation.

He only has to behave until September, Day noted. That’s when he’ll be discharged from parole.


Sleeping judge, the sequel

The “Sleeping Judge” ad campaign that targeted former Michigan Supreme Court Justice Clifford Taylor was criticized, even by Democrats who wanted to see him unseated, as being possibly less than honest, and at the very least a cheap shot which had an enormous impact on the election.

Well, a similar campaign is resurrected, but this time takes aim at Justice Robert P. Young, who is up for reelection this year.

The Michigan Democratic Party’s Web site has posted a contest, inviting participants to guess “How many times has Bob Young fallen asleep on the bench?” and the winner will get a Bob “Sleepy” Young t-shirt.

The site hauls out the statistic: “An insurance industry lawyer, Young has ruled with insurance companies and corporations 80 % of the time,” which would be fair game if it’s true.

But another round of “sleeping judge” ads? Is this how we want to appeal to voters to select a Justice for our state’s highest court?

There is much discussion among members of our legal community about how campaigning and money can influence our judges. And it’s probably fair to say that it’s time to change the way we select our appellate court judges. But it seems somewhat unfair to talk up  (and let’s be honest – it’s generally Democrats who would most like to see the judicial selection process changed)  the unsavory process of judicial elections, while at the same time appealing to the lowest common denominator of the electorate.

The curious case of Hon. Benjamin H. Logan

A deal to resolve misconduct charges filed by the Judicial Tenure Commission against 61st District Court Judge Benjamin H. Logan may be on the rocks.

Last fall, the JTC’s formal complaint alleged that Logan’s intervention to grant bond to Kent County Commissioner James Vaughn gave the “appearance of impropriety.” See, The Michigan Lawyer: Special master appointed in Grand Rapids judicial misconduct case

Vaughn had been arrested for domestic violence.

The complaint alleged that Logan intervened after a telephone call with another commissioner, Paul Mayhue, who visited Vaughn in jail. Logan initially denied that any phone conversations took place. He eventually conceded in a JTC settlement agreement that he and Mayhue spoke for 15 minutes on the day Vaughn was arrested.

The JTC recommended a public censure for Logan and sent the file to the Michigan Supreme Court for approval.

Wait a minute, something doesn’t seem to be adding up, we’re curious, a little more “explication,” please, said Justices Elizabeth A. Weaver, Maura D. Corrigan, Robert P. Young, Jr., Stephen J. Markman and Diane M. Hathaway.

We DIRECT the Judicial Tenure Commission to file a supplemental report within 56 days of the date of this order, explaining:

(1) whether it has determined that the respondent did not lie to the Commission, despite the allegations in Count II of the complaint; and

(2) if the respondent did not lie to the JTC, then how does the respondent explain his admitted 15-minute phone call received from Mayhue in light of his multiple denials of having any conversations with Mayhue on the date in question? See page 4 of the settlement agreement (admitting that the 2:08 p.m. phone call from Mayhue to the respondent on 6/17/08 lasted approximately 15 minutes), pages 5-6 of the complaint (alleging that the respondent denied having any conversations with Mayhue on that date), and page 2 of the respondent’s answer (continuing to deny that he had any conversation with Mayhue on that date).

One possible reading of the tea leaves: if a judge lies to the JTC, something more than a public slap on the wrist is in order.

Chief Justice Marilyn Kelly and Justice Michael F. Cavanagh “would adopt the recommendation of the Judicial Tenure Commission.”