Law prof gives update on criminal law cases

By Roberta Gubbins

Legal News

"There are a few cases I want to highlight," said Ron Bretz, Thomas M. Cooley Law Professor beginning his discussion of notable criminal law cases at the ICBA Criminal Law Section meeting on Feb. 7. The event was held at the Hall of Fame restaurant in East Lansing.

The first case, People v Lown, (488 Mich 242 (2011), addressed the 180 day rule. Bretz reminded the audience that the statute says "they (imprisoned defendants) have to be brought to trial in 180 days. The Supreme Court said that as long as they bring them back and arraign them, that's close enough."

The dissent (Justices Cavanagh and Kelly) argued that the court's decision abandoned textualism because the statute says must to be brought to trial.

Bretz expressed the concern that the "To Catch a Predator" producers are luring (suspected pedophile) defendants to Michigan because we have the toughest statutes. In People v Aspy, 292 Mich App 36 (2011) a case where "the defendant was in Illinois, the catch the predator people were in Ohio, pretending to be a 14 year old girl and asked the defendant to meet her in Michigan. So if all the action is outside of Michigan, how can this be a Michigan case?" he asked.

The Supreme Court held that if "any element of the crime is committed in Michigan, we have jurisdiction."

"The self defense case in (People v Richardson, 490 Mich 115 (2011)) is really tricky. Michigan doesn't have a duty to retreat rule. We are now a 'stand your ground state.'" In Richardson, the defendant was on his front porch but still gets "a duty to retreat instruction" from the judge to the jury. "He shot two of his neighbors."

The Supreme Court upheld the jury instruction.

"That means," Bretz, "that the ability to retreat is relevant but there is still no duty to retreat. Justice Markman disagreed saying that if we have guns we should be able to use them."

Continuing on, Bretz looked at the case of People v Kowalski, 489 Mich 488 (2011) where the trial court asked defense counsel four times during the trial if there were any objections to the jury instructions, defense counsel never objected thus review by the appellate courts was waived. The case, said Bretz, involved the accosting of a minor and the court failed to instruct on the actus reus (wrongful act) of the offense.

"The Supreme court in a 5-2 opinion," Bretz noted, "says so what," holding that because the evidence presented at trial was overwhelming and uncontested the defendant was properly convicted.

The cases involving Medical Marijuana (People v Danto and Nater, ___ Mich App ___ (Nos. 302986, 302991, 303064, 303525, decided 11/08/11) mean nothing in Bretz opinion "until we hear from the Supreme Court."

In People v Reid, (No 286784, decided 5/10/11) the defendant was arrested in 2005 for drunk driving but not charged until 2007. The blood sample was destroyed in 2008. He asked to have the blood sample independently tested after that date and "the court said, too late," said Bretz. "The defendant had plenty of time to get it and he failed to show 'bad faith in its destruction.'"

Homeless offenders must register according to People v Dowdy, 489 Mich 373 (2011), "they must go into the police station once a week and write their name and 123 Homeless" as the address.

The community caretaking exception to 4th Amendment protection against unreasonable search and seizure applies to reasonable entries by firefighters to stop a threat of fire. People v Slaughter, 489 Mich 302 (2011).

The court held: "Because the firefighters entered the defendant's home to abate what was believed to be a serious threat at the time of the entry, the community caretaking exception applies and the subsequent arrest and seizure were constitutionally valid."

Justices Kelly and Cavanagh dissented stating, according to Bretz that "they (the court) have extended the community caretaking exception beyond discernible limitations." Bretz believes this exception is the fastest growing exception right now.

Thomas M. Cooley Law School Professor Ronald Bretz is the chair of the Criminal Law and Procedure Department, and teaches Criminal Procedure, Criminal Law, and Moot Court (National Competition). He won the Stanley E. Beattie Teaching Award in 1998 and 1999.

Published: Thu, Feb 16, 2012

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