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In The News

Monday, December 21, 2015

Tension Between Protection of the Public and Protection of the Constitution -

By Michael Nichols
Categories: Michael J. Nichols

Mike Nichols presented an argument for new views of bond conditions for anyone arrested on a charge that leads to conditional bond for pretrial release, Below is the entire article in this months "BRIEFS" for the Ingham County Bar Association

Jack is working in a field in Ohio when he gets a call from a familiar number. It is the number from which there may be good news. It may be that the nightmare Jack is living is about to end: the pall over him is about to disappear and he can try to resume a normal life.

Jack cannot take the call -- he is in the midst of grinding machines; the humming and thumping that is the ambient sound of work for Jack - the same sound that provides meals; provides heat; provides security also makes it impossible to have a conversation without yelling. "I have not gone to take a leak yet today," Jack thinks to himself he throws up his hands at his co-workers and yells as loudly as he can "break." Jack nearly runs to call his lawyer back.

This call does not go the way Jack hopes. Jack in fact is stunned by what he hears. "Jack I just talked to Katie - she says the judge changed your bond so you cannot see Wes -- it's called a no contact order. I don't know why the judge did it without a hearing. I can only guess that someone presented him with some information but that is still improper. I'm on it. I'll do my best to fix it."

Jack is charged with domestic violence against his ex-girlfriend and her son. It is an awkward situation. Jack and Katie have a 3-year old child together. All of them live in a small town in Michigan. Katie is from down south. She met Jack about 5 years ago; the decided they were in love and she moves to his town where he has family. They live together in a house owned by Jack's dad.

Things fall apart though. Jack moves out because he can go live on the family farm that his brother is running by now. Jack keeps finding work from job to job in a fairly lucrative field helping to build pipelines. Katie wants to move back home. Things are complicated though. Michigan law prohibits her from moving more than 100 miles away without permission from the court. She represents herself in a change of domicile proceeding. A referee dismisses the Petition at a short hearing because she has not established good cause.

Within weeks of this court ruling - Katie needs Jack to come fix the furnace in his dad's house. It is a nice fall Saturday evening. Jack arrives; Katie offers him a drink. He replaces a part. They hug. Katie needs to go pick up her older son and asks Jack to stay with Wes. Jack needs to stay anyway as he is monitoring the progress of the furnace.

Hours later, Jack is in custody. What happened is for a jury to decide and Jack is assured by the lawyer he hired to represent him in the "custody deal over Wes" that he will have his day in court on this criminal charge. There is another complication though - at his arraignment the court imposed a condition of bond that Jack could have no contact with Katie or her son with another person because Jack is charged with assaulting both of them and it allegedly happened in front of Wes. Between the arraignment and that phone call between Katie and his lawyer - Katie was told that the condition was extended to included even Wes.

Jack and Katie literally have a separate lawsuit pending. Katie has not hired an attorney and so her change of domicile petition gives way to negotiations over custody, parenting time and child support. Jack has his lawyer spending a Friday afternoon communicating with the court where his criminal case is pending as well as his custody case. Finally, he gets an order allowing him to see Jack as long as he has an acceptable 3rd party handle the transfer. How long does this have to take place? Until Jack gets his day in court.

Or there’s Lucille: a 71-year old grandmother with no criminal record whatsoever. Lucille was driving home one night Lucille’s stomach was upset. Lucille struggles with something known as gastroesophogeal reflux disease (GERD). She had a drink and a half and then a glass of wine with dinner over the course of a 5 hour evening with her in-laws. She was stopped on the way home. Lucille ended up getting arrested and blowing .10 on a datamaster dmt. In Michigan, the state police ordered the graphic display function turned off so that the point at which her breath sample was actually captured and measured is unknown.

Now, Lucille is testing randomly for alcohol because she’s been ordered not to drink while on bond. She’s also – amazingly – ordered to test for the presence of drugs in her urine once a month. Of course she’s going to have drugs in her system: she’s 71! She takes at least 4 medications.

The state constitution entitles a person to pretrial release unless the person is charged with murder, treason or another “disqualifying” offense and the evidence against the person is strong or the presumption of guilt is great, (see MI Const Art. 1, sec 15; MCR 6.106(C)). The Benchbook on Criminal Procedure for Judges is not very clear on some of these points. I made sure to consult the Benchbook because I know that this is a handy and helpful resource for many jurists.

The court has 3 options when setting bond

personal recognizance bond;
a cash or surety bond and/or in conjunction with a;
conditional release bond. There are 15 specific conditions that the court can impose but first the court must make a finding that a personal recognizance bond will not be sufficient to ensure the 2 purposes of setting bond a) ensure the return of the accused and b) ensure the protection of the public.
What often is overlooked by Courts is that IF the arraigning Court believes that the accused should be held on conditions that will ensure her return or maintain public safety and ensure the return of the accused then there is a principle to follow. The American Bar Association (ABA) developed Pretrial Release General Principles in its Criminal Justice Section Standards. Principle 10-1-2 states:

"In deciding pretrial release, the judicial officer should assign the least restrictive condition(s) of release that will reasonably ensure a defendant’s attendance at court proceedings and protect the community, victims, witnesses or any other person."

There are courts that impose in certain types of cases specific bond conditions regardless of any of the evidence, without looking at any of the evidence. These conditions can range from the no contact orders or testing requirements such as those indicated above but other invasive conditions such as substance abuse evaluations, no driving, no patronage at a business that sells alcohol, a batterer's intervention course in exchange for lifting a no contact order, or even a breath alcohol tether called a "soberlink" or an ignition interlock device.

These practices at least appear to me to be pre-established bond conditions - pre-established. In other words, depending on the nature of the charge, whether you are my friend Jack, with a competing custody litigation matter ongoing or Maria, who is 71 years old and has no history and is frankly as "safe a bet" as a judge could make at the bond-setting phase -- you are going to have to wear that shackle while you await your day in court. There is no individual consideration. There only exists a pre-conceived notion that assumes a little bit of guilt even if the person is ultimately acquitted or the charges are dismissed.

Herein lay the rub for me. The lack of a speedy trial. I have no problem urging a client to "live with" a little bit of sacrifice or education if it is simply a short term shall we say - "intervention." However, examine this at the District Court level and how it plays out among the various courts around the state. If you are in some parts of the state where the dashboard suggests to the governor that you do not need a judge, you are lucky to get a judge 2 days a week. In other parts of the state, you have district courts that decide it is more efficient to pick multiple juries in one afternoon - sometimes it is 4-5 -- then come back and have your actual trial in another month ... or so.

In some of those District Court venues where it is "pick and come back" for trial - the judge takes it upon himself to do all the voir dire. So, my accused citizen Jack is waiting for his day in court; has to use a 3rd party for the transfer of his child, cannot go to his own house because that is where the complainant lives, gets to come back in 2 months for a jury selection where his lawyer cannot even see which potential jurors will fold their arms when he stands up to ask them even "does anyone disagree that the prosecutor is the only one with the burden of proof in this trial?"

Then, he gets to come back in ANOTHER month to hope he has a fair day in court and can somehow buy Wes a Christmas gift because he spent all of his money on lawyers, bond, supervisors for parenting time, testing (if ordered) and perhaps fines, costs, Cunningham costs - a/k/a someone's guesstimate as to how much each of us costs the court by setting foot in the court in response to the government's invitation, counseling fees, probation oversight fees and the night he spent in jail. Oh leave us not forget the cost to fingerprint, shoot his mug and make sure he is "who we think he is" by booking him in.

Let us look at the drunk driving charge. Yes - I researched the law before writing this and there is still no drunk driving presumption shifting embodied in a constitutional amendment or rule of evidence. There are all sorts of silly evidentiary assumptions and tricks thanks to the world's greatest lobbying group known as Mothers Against Drunk Driving (MADD) but nothing yet that says the motorist accused is presumed guilty if the charge is drunk driving.

So we have the timeline of 77 days in the statute- with no penalty. We have the "guidelines" imposed by the State Court Administrative Office (SCAO) for disposing of the case. We have the accused testing while on bond. I even had a client who was ordered to drive only with a breath alcohol ignition interlock device (BAIID) but then he had to randomly go drop for the presence of alcohol. So, he literally had to give a breath sample to show he was negative for alcohol to go give a urine sample to show he was negative for alcohol.

Then why would I not love this based on the theme of this epistle? Let us get to trial and get a jury of 6 or 12 to decide! Right? Wrong. The Michigan State Police Forensic Science Division has hundreds of pages of data about what occurred during the relevant times of the subject's blood alcohol analysis and gee, under MCR 6.201 and People v Greenfield, the prosecutor has no duty to turn over any discovery in a misdemeanor case. So - I have no data upon which to support any claim that there is "reasonable doubt" that the value reported by the Michigan State Police is a false positive of a falsely elevated result. Oh - I know; trust them. They are infallible. OK - so why even have a justice system. Why not fire all the judges and prosecutors and let the police officers decide who is convicted?

The Freedom of Information Act? (FOIA) The MSP lab has 5 days to respond to a request for all of the relevant data. You say it is just a breath alcohol analysis so it should be easy? You say there are just a few pages of documents? The non-accredited breath test program has shut off all of the really good data - like at what point the person's breath was analyzed and what the flow pattern was during the breath flow. Want basic logs that show what the inspector did when he performed a 120 inspection as required under the administrative rule? Want a manufacturer's certificate stating the expiration date and variance for the thermometer that has the critical function of keeping the temperature in that "simulated drunk" solution at a proper level? Guess what - that is another FOIA to MSP. Who is on first?

Here are the top three ideas to make the trial process a little more fair:

1. make it mandatory that district courts have at least a trial day at least once a week; Yes I know - we all get worried about the citizenry complaining about jury duty. Show me one "survey response" that came back to the SCAO where a person wrote the following comment: "I am paying for the courts so please jam justice down my throat however you think it is most efficient so I can feel like tax dollars are spent well."

2. have a standing discovery order in various cases such as drunk driving - make the lab produce the data for every case that allows the accused through his lawyer and/or consultant to try to understand what if any anomalies there were in the testing.

3. have a mandatory review of the bond conditions - if any - at the first pretrial. Let the government bear the burden of showing why 71-year old Maria should have to go urinate in front of a stranger so that they can make sure she is taking only the medications she is supposed to take and is not using illicitly any alcohol, marijuana or anything else.

We live in an age in which it seems like courts are filled with a pall of anxiety over justifying the expense of the judicial system to the citizenry. Efficiency! Time is money! We cannot keep the voters waiting! It seems to me like the criminal justice system that is part of the best imperfect democratic experiment yet -- needs worry about one and only one dashboard metric: making sure that regardless of the result - each person who was summoned to court believed that the process was fair to everyone and everyone was treated with respect based on their individual circumstances and performance. It is worth a try.

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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.