Big Changes in 2017 for Newaygo County and Oceana County’s 27th Circuit Court

Judge Anthony Monton Set to Retire

After serving as a Circuit Court Judge since 1988, Judge Anthony R. Monton is retiring, effective March 1, 2017.  According to the Judge, his last day on the bench is February 24, 2017.

27th Circuit Court Oceana County Circuit Court, Hart, MI,  and Newaygo County Circuit Court, White Cloud, MI
Judge Monton speaking at his retirement party before the Oceana and Newaygo County Bar Association.

A fixture in the legal community in Oceana and Newaygo for more than four decades, Judge Monton began his legal career in Michigan when he joined former-Judge Walter Urich in private practice in Hart, MI.  After eight years in private practice, Judge Monton ran for and was elected Prosecutor for Oceana County, a position he held until being elected to serve the 27th Circuit Court bench in 1988.

Michigan Governor Rick Snyder will appoint a successor in the near future.

Ryan Lochte Unlikely to be Extradited to Brazil to Face Charges

United States Olympic swimmer Ryan Lochte is facing accusations, in Brazil, that he lied to the police about being robbed a gunpoint.  (See http://www.nytimes.com/2016/08/19/sports/olympics/police-say-ryan-lochte-lied-about-gunpoint-assault.html). Having already returned to the United States from Brazil, this article discusses whether he could be extradited back to Brazil to face possible charges.  As the following argument demonstrates, it is unlikely Mr. Lochte would be extradited to Brazil because simply lying to the police is not an extraditable offense under the extradition treaty between the United States and Brazil.

In general, extradition requests are governed by treaty, federal law, and by executive branch/diplomatic considerations.  Under federal law, there are three requirements that must be met before a person can be extradited from the United States to a foreign country to face criminal charges:

(1)      There must be extradition treaty between the country seeking extradition and the United States;

(2)      The alleged offense must fall within the scope of the treaty;

(3)      A federal court must find that there is probable cause to believe that the individual committed acts alleged in the extradition request.

See 18 U.S.C. § 3184.

In Mr. Ryan Lochte’s case, the first requirement for extradition is easily satisfied because there is an extradition treaty in effect between the United States and Brazil.  See Treaty of Extradition between the United States of America and Brazil of January 13, 1961 (the “Treaty”).

However, whether the second requirement for extradition can be met is much less clear.  Article II of the Treaty lists 37 types of crimes that are extraditable.  The listed offenses include obvious crimes such as murder, rape, kidnapping, drug offenses, and certain financial crimes, inter alia.

In Mr. Lochte’s case, he is accused of giving false testimony about a crime when he allegedly reported that he had been robbed at gunpoint by people posing as police.

Although Article II, ¶ 22, of the Treaty makes perjury, and the subornation of perjury, extraditable offenses, it is not clear that Mr. Lochte’s alleged conduct constitutes perjury because it is unlikely that his statements to the police were made under oath.  Under the laws of the United States, perjury requires, generally speaking, that the person (1) makes a statement that he/she knows to be false (2) while under oath.  See e.g. 18 U.S.C. § 1621.  Similarly, subornation of perjury requires proof that a person procures another person to lie under oath.  See e.g., 18 U.S.C. § 1622.  While U.S. law does makes it a federal crime to lie to federal law enforcement officers, 18 U.S.C. § 1001, the Treaty does not identify this as an extraditable offense.

Thus, unless there is evidence that Mr. Lochte lied under oath, or convinced one of the other swimmers to do so, it is unlikely that the second or third elements of (probable cause to believe that an extraditable offense occurred) for extradition could be met.

Even if all the requirements of the extradition treaty are satisfied, the executive branch and the Secretary of State, in particular, can still decide whether to deny extradition on humanitarian grounds.  See Article VII; Gallina v. Fraser, 278 F.2d 77 (2d Cir. 1960).  Such relief is exceedingly rare, however.

 

 

 

 

electric forest festival lawyer

5 Tips for Traveling to the 2016 Electric Forest Festival

Electric Forest Festival 2016

The 2016 Electric Forest Festival is almost here and tens of thousands of concertgoers are getting ready to head out to the Forest. Law enforcement also knows this. If you don’t want to be the stopped by the police on your way to the Forest, review these 5 tips:

Electric Forest Festival Attorney

Tip #1      Don’t hang anything from your review mirror, i.e., an air freshener, beads, etc.

The police can stop you if you they have probable cause to believe you committed a civil infraction. It is a civil infraction in Michigan to “operate a motor vehicle with . . .[a]n object that obstructs the vision of the driver. . .” M.C.L. § 257.709(1)(c); People v. Fisher, 463 Mich. 881 (2000).

Did You Know?

This law does not apply to vehicles registered out of state or the country (Hello, Canada!). M.C.L. § 257.709(3)(d). While you may win a legal challenge to a traffic stop if you have an out of state license plate and are stopped for something hanging from your review mirror or obstructing your view, it is much less expensive to just remove any obstructions than to fund a legal challenge after-the-fact.

Tip #2 Observe all of the Posted Speed Limits

Because speeding is a civil infraction, it is one of the most common reasons for a traffic stop. So don’t speed to the Forest; otherwise, you may get an expensive ticket, points on your master driving record, an insurance hike, and an unwanted delay/encounter with the police.

Tip #3 Use Your Turn Signal to Change Lanes

Michigan law requires the operator of a motor vehicle to give a signal prior to “turning from a direct line . . .” M.C.L. § 257.648; People v. Hrlic, 277 Mich. App. 260 (2007) (MCL 257.648 requires drivers to use a turn signal when changing lanes on a highway).

Did You Know?

You can use your hands or arms to give the “signal,” even when you are in a car:

(a) For a left turn, the operator shall extend his or her left hand and arm horizontally.
(b)  For a right turn, the operator shall extend his or her left hand and arm upward.
(c)  To stop or decrease speed, the operator shall extend his or her left hand and arm downward.

M.C.L. § 257.648(3)(a)-(c).

Tip #4 Make Sure all the Equipment on your Car is Working Properly

The police can stop you if your car has “defective equipment.” There are a number of laws that require various equipment to be working properly and in good repair, including but not limited to:

(1) license plate lights (M.C.L. § 257.686(2));
(2) head lights (M.C.L. § 257.684)
(3) brake lights (M.C.L. § 257.697b); and,
(4) cracked windshields (M.C.L. § 257.709);

So, take a few minutes and make sure that all the equipment is working properly on your car. Most auto parts stores or oil change shops will help you fix these little problems, sometimes free of charge.

Did You Know?

Michigan law requires you to use your headlights “. . .a half hour after sunset to a half hour before sunrise and at any other time when there is not sufficient light to render clearly discernible persons and vehicles on the highway at a distance of 500 feet ahead. . .” M.C.L. § 257.684.

Tip #5 You Do Not Have to Answer any Incriminating Questions or Take any Field Sobriety Tests When You Are Stopped by the Police

The Fifth Amendment to the U.S. Constitution provides citizens the right to remain silent and the right against self incrimination. This protection extends to traffic stops and other encounters with the police.

If you are stopped by the police, you should be polite, be respectful, properly identify yourself, and even step out of the vehicle, upon request. But you should also know that you do not have to answer any other questions, particularly questions designed to elicit an incriminating response, e.g., “have you been drinking/smoking”, “do you have anything illegal in your car,” “do you have anything in your car I should know about?” Nor do you have take take any field sobriety tests, even if the officer makes it seem like there’s not much of a choice whether to do so or not. Remember, you may be providing him/her with incriminating evidence by doing so, and you have a constitutional right not to incriminate yourself and remain silent. The best way to respond to these type of questions/demands is to tell the officer “I do not want to answer any questions (or take any field sobriety tests) without my attorney.” While the police may have already gathered enough evidence to justify a warrantless arrest, at least you are not providing them with a confession or other evidence to support your arrest.

Hope these tips help you have a safe and uneventful trip to the Festival!
If you have questions along the way, Springstead Bartish & Borgula Law will be on-call 24/7 during the festival and we offer free consultations @ (616) 458-5500 or (231) 924-8700.

#electricforest #electricforestfestival #electricforestattorney

Federal Sentence Reduction Possible

U.S. Supreme Court Declares Armed Career Criminal Act Unconstitutional

Sixth Circuit Applies Decision Retroactively

In In re: Watkins, The Sixth Circuit Court of Appeals held that the Supreme Court’s ruling in Johnson v. United States, which struck down as unconstitutional the “residual clause” of the Armed Career Criminal Act (ACCA), is retroactive to cases on collateral review.

Federal Criminal Appeal Attorneys
Gerald R. Ford Federal Building (Home of the U.S. District Court, for the Western District of Michigan)

Continue reading Federal Sentence Reduction Possible

Are Robert Durst’s Recorded Statements Admissible in Court?

HBO recently aired a riveting mini series called “The Jinx:  the Life and Deaths of Robert Durst.”  At the end of the series (spoiler alert), Durst is interviewed and inadvertently makes what appear to be some highly incriminating statements.  After reading a New York Times article (found here), I wanted to take a closer look at the admissibility of his statements.  Are they admissible in a criminal trial? Continue reading Are Robert Durst’s Recorded Statements Admissible in Court?

Penalties for 1st Offense Drunk Driving in Muskegon Michigan

Hon. Raymond Kostzrewa
Hon. Raymond Kostzrewa

This past week, a client had a sentencing in Muskegon, MI, after pleading guilty to drunk driving (DUI / OWI) first offense.  It was a pretty routine DUI overall.  My client had never been in trouble before and his/her BAC was over the legal limit but well-below a high-BAC.  The only aggravating factor was that my client fell asleep and went off the road.   Continue reading Penalties for 1st Offense Drunk Driving in Muskegon Michigan

Grand Rapids DUI Attorney Pokes Holes in Deflate Gate

Grand Rapids DUI Attorneys
New England Patriots Quarterback, Tom Brady

The scandal du jour in the N.F.L. is “deflate gate,” the recent allegation that the New England Patriots may have under-inflated their footballs in the N.F.C. championship game in order to gain some type of tactical advantage, i.e., better grip on the ball in cold, wet weather.  After listening to the breathless chatter about deflate gate, it occurred to me that deflate gate really wasn’t that much different than your typical DUI case.  Applying the principals of metrology—the science of measurements—(the very same scientific principles used estimate the accused’s B.A.C. in DUI case) and a dose of common sense, it is evident that there are many holes in this story.  Here’s why: Continue reading Grand Rapids DUI Attorney Pokes Holes in Deflate Gate

Marijuana Drug Charges in Grand Rapids in a State of Flux

Grand Rapids Criminal Attorneys | DUI Lawyers
Grand Rapids Office of Springstead Bartish & Borgula Law, PLLC

In November 2012, voters in Grand Rapids approved a city charter amendment that essentially decriminalized the possession of use and marijuana within the city of limits of Grand Rapids…sort of.  The charter amendment makes the possession of small amounts of marijuana a civil infraction (the equivalent of a traffic ticket) instead of a misdemeanor. The civil infractions carry a penalty of $25 for a first offense, $50 for a second offense and $100 for a third offense. Continue reading Marijuana Drug Charges in Grand Rapids in a State of Flux

Sexual Assaults on Campus

This morning I stumbled upon a great piece on the unfair legal process being employed in sexual assault investigations and adjudications on college campuses, when I was reading one of my favorite op-ed writers, David Brooks of the New York Times.  Every year he gives out awards for the best online articles, called the “The Sidneys,” and this year he recommended one called “The College Rape Overcorrection,” by Emily Yoffee of Slate.com.  Here are my comments on the article and the problems with sexual assault claims that occur on campus: Continue reading Sexual Assaults on Campus

Muskegon County Jail Makes More Room at the “Inn”

Just a quick update from my visit to Muskegon yesterday.  The expansion of the Muskegon County Jail appears to be making progress.

Muskegon Criminal & DUI Defense Lawyers | Attorneys | Springstead Bartish & Borgula Law
Muskegon County Courthouse and New Construction of Muskegon County Jail

According to Mlive, the new jail is supposed to be completed in June of 2015 and cost over $37 million and is expected to house over 500 additional inmates.  This will undoubtedly make it more difficult for those convicted of felonies or misdemeanors to avoid jail due to overcrowding, as has been common in the past. Continue reading Muskegon County Jail Makes More Room at the “Inn”