Monthly Archives: January 2012

Judge Somers’ wages garnished to pay $1.2 million court judgment

This is the Judge that NEIL ROCKIND, p.c. got disqualified last week in a medical marijuana case in Dearborn…

DEARBORN — Last week saw a payless payday for 19th District judge Mark Somer after the two-tern judge found his bank account frozen as a result of the lawsuit against him by former deputy court administrator Julie Pucci.

Under court order, Dearborn Federal Savings Bank put a hold on $3,399.13 in Somers’ account on Thursday, the day his direct-deposit check was transmitted. The order for garnishment was signed off on in December by U.S. District Judge David Lawson in a move to help secure the nearly $1.2 million judgment Pucci won at a civil trial in June while the verdict is being appealed by Somers.

Somers said Monday he was surprised to find out his account was frozen, because there was a “gentleman’s agreement” between the two sides not to go forward with garnishment until the case went through settlement discussions in the Sixth Circuit U.S. Court of Appeals.

“There was a gentleman’s agreement that they would stay collections while the (appeal) motions were pending and that there would be prior notice,” Somers said. “I didn’t receive any prior notice.”

Somers protested the garnishment order when Lawson first made it, saying that the city of Dearborn — the court’s funding unit — would ultimately be responsible for the judgment, not him. Throughout the trial and since, the city’s Department of Law has maintained the city is not responsible because Somers was sued in his individual capacity as opposed to his official capacity.

In an email sent Jan. 11 by Pucci’s attorney, Joel Sklar, to Somers’ defense counsel with the Michigan Attorney General, Sklar wrote, “As a show of good faith on the part of Julie Pucci, I will refrain from garnishing your client’s wages, etc. I have already obtained signed writs of execution from the Court but will hold them in abeyance for a reasonable time while we attempt to resolve this matter.”

Sklar said Tuesday that the decision to garnish came after Somers’ attorney told him that the city wasn’t budging on its position that either Somers himself or the state of Michigan, which is the actual employer for state district court judges, are responsible.

“I hope he has $1.2 million to satisfy the judgment, but with the city still not acknowledging any liability I had no choice but to move forward and secure Ms. Pucci’s judgment,” Sklar said.

Somers on Monday filed a motion in Sixth Circuit U.S. Court of Appeals to stay the collection. The motion requests an expedited hearing before Feb. 2, the next time Somers gets paid.

He is paid twice a month. He earned an annual salary of $138,272 in 2011.

via Press and Guide

District Court Judge gets SLAMMED by Circuit Court

Judge Post held a young lawyer in contempt because the lawyer repeatedly asserted his client’s 5th Amendment privilege to remain silent (when Judge Post asked his client whether he would test positive for drugs.)

All the lawyer did was state that his client would not answer the question, because it would incriminate him. Judge Post did not like this and proceeded to hold the lawyer in contempt, had him arrested, and sent to jail!

The Circuit Court issued an opinion a couple of days ago, reversing the contempt charge.

Read the Circuit Court opinion here ——> Contempt Opinion

*Please note that the Circuit Court Judge is also Judge Post – but they are not related.

– Colin Daniels

BREAKING NEWS: Neil Rockind Succeeds in Disqualifying an Anti-Medical Marijuana Judge!

In early 2011, Judge Mark Somers, who at the time was the Chief Judge of the 19th District Court in Dearborn, Michigan, ruled that the Medical Marijuana Act was unconstitutional. To be clear, Just Somers did not selectively invalidate certain parts of the Act; he invalidated the ENTIRE Act. Such a ruling is clearly erroneous, given that several Circuit Courts, and the Michigan Court of Appeals have all upheld the validity of the Act (even though they have considerably limited the Act in scope.)

G.N., a medical marijuana patient, came to our office after having his misdemeanor Possession of Marijuana case assigned to Judge Somers. Unfortunately, we knew that G.N. would not get a fair shake in front of Somers, specifically because Somers would, without a doubt, refuse to give him the protections that he deserved under the Act.

For that reason, we filed a Motion to Disqualify Judge Somers on the grounds that his bias against medical marijuana would prevent him from giving a fair ruling in G.N.’s case.

Read the Motion and Brief here ——>Mtn to Disqualify (sans attachments) – Redacted

Not surprisingly, Judge Somers denied the motion.

Luckily, when a Judge denies a Motion to recuse  him or herself, an automatic appeal takes place. So, we appealed Judge Somers decision to the (new) Chief Judge Wygonic.

Following a hearing, Judge Wygonik agreed with us that G.N. could not have his case fairly heard before Judge Somers – specifically because Judge Somers’ view on the Medical Marijuana Act would prevent him from providing G.N. with a medical marijuana defense if he otherwise qualified!

We do not know what kind of effect this will have on other medical marijuana cases that come before Judge Somers, but we do know that G.N. should now be able to assert his medical marijuana defense and can expect it to be fairly received.

This may seem inconsequential, but to G.N., this could mean the difference between a criminal record and a clear record – which is all the difference in the world.

– Colin Daniels

BREAKING NEWS: Neil Rockind, P.C. gets ANOTHER COMPLETE DISMISSAL of ALL FELONY medical marijuana charges!

We are continually fighting for our clients. We are at work early, we work long hours, we work late, we work weekends, we work holidays, we talk about cases over lunch, we rarely leave the office before 7pm at night, we write long motions and briefs, we hold hearings – in short, we fight – day in and day out. And when we sleep (which is rarely), we dream about how we can obtain better results for our clients.

We are 150% committed to our clients.

And ALL of that pays off when we convince a prosecutor’s office (particularly the Oakland County Prosecutor’s Office) to dismiss felony charges.

More than one year ago, T.S.’s residence was illegally raided by the Oakland County Narcotics Enforcement Team. Officers had lied to obtain a search warrant to his home. Regardless, officers found a small amount of medical marijuana in a locked room in his basement. When officers questioned T.S., he voluntarily presented his medical marijuana paperwork, and answered all of their questions truthfully. A short while later, T.S. was arrested and charged with Delivery/Manufacturing Marijuana.

T.S. was referred to our office and told us that he had not done anything wrong; that he had followed the medical marijuana laws to the T. We told T.S. that we would do everything within our power to help him through this terrible ordeal.

Upon delving into the case, we realized that the officer in charge of the case had presented a search warrant affidavit to the court that contained intentionally false information. Armed with this information, we wrote a massive Brief requesting that the Judge suppress any any all evidence seized from his home and that the case be dismissed for lack of evidence.

The Brief can be found here —-> Mtn and Brief for Franks (Redacted) 01.26.12

Initially, the Prosecutor’s Office, due to the arguments presented in the brief, offered our client a plea to Misdemeanor Possession of Marijuana. However, T.S. could not bring himself to plead guilty to a crime that he did not commit. Upon informing the Prosecutor’s Office that we could not accept the offer, we received word that The Prosecutor’s Office had decided to dismiss all charges.

It is no secret that Neil Rockind, P.C. and the Oakland County Prosecutor’s Office do not always see eye to eye, but we at Neil Rockind, P.C. absolutely respect the righteous decision that they made in T.S.’s case.

The Order of Dismissal was entered onto the record on January 25th, 2012.

Below are the emails that we received yesterday and today from T.S. and his wife.

“Hey Neil,

Thank you, thank you and your comrades Colin and Jennifer.  What an amazing day!

I came to your office in May of 2011 facing 2 bogus felonies for manufacturing and distribution of marijuana. I was seeking your help because I believed your firm could help protect my rights as a Medical Marijuana Patient and let the truth be heard.  I knew in my heart that you were capable of getting all charges dismissed.
When I met with you initially I was somewhat aware of your background. 6 years ago you helped a beloved relative of mine. He sought you out in hopes of staying out of prison after his 3rd DUI with his 3rd not only a DUI but also on a suspended license. He was looking at a serious amount of jail time. Your victory kept him out of jail and you helped him continue supporting his family. At that point you had my respect and admiration.

You were quick, accurate, to the point and ready for whatever hurdles were thrown our way. Our victory exemplifies that an extraordinary attorney and team can do extraordinary things. I’m a firm believer in “you get what you pay for”.

I’m sure you can imagine how emotional I was when receiving the call from Jennifer telling me the case is being dismissed. I asked her at least 5 times back to back, “Are you serious”? as the weight and burden of these charges have slowly begun lift.  

I’ve spent the last 9 months not believing in the system . You’ve helped restore calm and confidence back into my life. From the bottom of my heart I want to  thank you for allowing me and my love to breathe again. I’m proud to call you my friends.

I’m also curious if someone recorded Colin’s victory dance?  I believe I was doing the same one.  If not I’d like to see it someday Colin. Thank you Jennifer for one of the best phone calls ever, and the happy tears. Neil, what is there to say that has not already been said.. Thank you for listening, believing, understanding and doing work I believe only few are blessed to do!!

 God Bless & Can’t Thank You Guys Enough!”

“Dear Neil,

There is no question that your team and their talents have scored another important victory.

Your crusade to defend the rights of Medical marijuana patients is admirable. Your team has taken the difficult task of taking politics and propaganda out of the court room and replaced it with undying compassion for patients that need a voice.

As a daughter of a parkinson’s patient, a sister of a social worker who works with ALS patients and most importantly a wife of a exceptional man that has Crohn’s Disease I understand the need for legal teams such as yourselves to defend the sick. In May I read letters of praise that clients had written to you after their victories. I’m honored that I now may do so.

You saved the freedom of my late and very dear cousin back in 2005.

I saw then what great work you do in the court room.

Neil you have been honored with many awards and accolades. You have heard a million times over “thank you”.

I would like to express my dearest thank you. You may have legally represented my husband but you saved my life.

You helped restore my trust in the justice system that was lost. You restored physical and emotional freedom into our lives. You’ve proved to me that in this life we will walk thru many battles but those battles although tough can be victorious.  Thank you for your compassion. Thank you for never giving up on the truth.

Thank you Neil,Colin, and Jennifer for doing what you do best and that’s winning! I imagine the three of you in the ring, Neil being the prized fighter, Colin the notorious and gifted trainer and Jennifer the sports agent working the deals and magic outside of the ring.

Thank you all”

Warrantless GPS Tracking? The Supreme Court Says “No Way”

Warrants Needed for GPS Monitoring, Supreme Court Rules

The Supreme Court ruled unanimously Monday the authorities need a probable-cause warrant from a judge to affix a GPS device to a vehicle and monitor its every move.

The decision (.pdf) in what is arguably the biggest Fourth Amendment case in the computer age, rejected the Obama administration’s position. The government had told the high court that it could affix GPS devices on the vehicles of all members of the Supreme Court, without a warrant.

“We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search,’” Justice Antonin Scalia wrote.

In  a footnote, Scalia added that, “Whatever new methods of investigation may be devised, our task, at a minimum, is to decide whether the action in question would have constituted a ‘search’ within the original meaning of the Fourth Amendment. Where, as here, the government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred.”

In all, five justices said physically attaching the GPS device to the underside of a car amounted to trespassing and was a search requiring a warrant. The majority said “the present case does not require us to answer” whether police may employ GPS monitoring of a vehicle via an already onboard navigation system “without an accompanying trespass.”

Four justices, however, said the prolonged GPS surveillance in this case — a month — amounted to a search requiring a warrant. But the minority opinion was silent on whether GPS monitoring for shorter periods would require a warrant.

All nine justices agreed to toss a District of Columbia drug dealer’s life sentence who was the subject of a warrantless, 28-day surveillance via GPS.

The justices agreed to hear the case to settle conflicting lower-court decisions — some of which ruled a warrant was necessary, while others found the government had unchecked GPS surveillance powers.

One of the Obama administration’s main arguments in support of warrantless GPS tracking was the high court’s 1983 decision in United States v. Knotts, in which the justices said it was OK for the government to use beepers known as “bird dogs” to track a suspect’s vehicle without a warrant. In that case, the police had the consent of that truck’s owner, which was not the case in the opinion decided Monday, Scalia wrote.

In the Supreme Court case decided Monday, the U.S. Court of Appeals for the District of Columbia Circuit had ruled that suspected District of Columbia drug dealer Antoine Jones had his Fourth Amendment rights violated with the warrantless use of GPS attached underneath his car for a month. The lower court had reversed Jones’ conviction, saying the FBI needed a warrant to track Jones.

Scalia’s majority opinion, which was joined by Chief Justice John Roberts, and Justices Anthony Kennedy, Clarence Thomas and Sonia Sotomayor, said the warrant was needed because placing the device on the suspect’s car amounted to a search, requiring the warrant.

In a separate opinion, written by Justice Samuel Alito, and joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, Alito wrote that Scalia’s opinion was “unwise” and said it should have examined “whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.”

“For these reasons, I conclude that the lengthy monitoring that occurred in this case constituted a search under the Fourth Amendment,” Alito wrote.

During oral arguments in the case in November, a number of justices invoked the specter of Big Brotherif the police could secretly attach GPS devices on Americans’ cars without getting a probable-cause warrant.

The last time the high court considered the Fourth Amendment, technology and privacy in a big-ticket case was a decade ago, when the justices ruled that the authorities must obtain search warrants to employ thermal-imaging devices to detect indoor marijuana-growing operations, saying the imaging devices carry the potential to “shrink the realm of guaranteed privacy.”

The Obama administration urged the court to reinstate the conviction and life sentence of Jones, a suspected cocaine dealer whose vehicle was tracked via GPS for a month without a court warrant.

The government told the justices during oral arguments that that GPS devices have become a common tool in crime fighting, saying it is employed “thousands” of times annually.

via Wired.com

Relief Case Relieved

Courageous judge dismisses case against Ferndale dispensary

By Curt Guyette

While News Hits is passing out praise for displays of judicial gumption, we’d like to give a nod to Oakland County Circuit Court Judge Daniel O’Brien, who dismissed all charges brought against the operators and employees of Clinical Relief, a medical marijuana dispensary in Ferndale that got busted in mid-2010.

When this rag took an in-depth look at where things stood as the three-year anniversary of the state’s medical marijuana law was marked last year (“High stakes,” Nov. 2, 2011), we focused in part on the plight of Barb Agro, a former police dispatcher in her 70s who was among those arrested when the business got raided.

Agro was an employee at the facility being run by two of her sons. As certified patients and caregivers, she and her husband, Sal, were also growing pot at their home in Lake Orion.

Sal never lived to have his day in court; the former GM worker and longtime youth sports coach died of a heart attack a week after narcotics officers wearing masks and wielding weapons conducted their raid.

Last year, Barb was found guilty of manufacturing and delivering marijuana, a felony. She received 90 days probation and 20 hours of community service. A key aspect of that case was that the Oakland County Prosecutor’s Office was successful in its attempt to keep jurors from hearing that Agro — who was accused of failing to follow the letter of the medical marijuana law — was a registered patient and caregiver.

But that wasn’t the end of her legal troubles. Along with sons Anthony and Nicholas, as well as five others associated with the clinic, she faced another round of felony charges.

Last week Judge O’Brien dismissed charges against all of the defendants. Although he didn’t issue a written opinion, O’Brien ruled from the bench that he was dismissing the charges because, at the times the arrests were made, aspects of the medical marijuana law regarding sales were ambiguous.

Because owners of the facility believed that they were in compliance with the law — going so far as to invite Ferndale police in for a tour of the operation — it is apparent that there could have been no criminal intent on the part of the defendants.

Oakland County Prosecutor Jessica Cooper doesn’t see things that way, however. She told News Hits last week that her office intends to appeal O’Brien’s ruling.

“We are concerned that the only people who believe this [law] is confusing are the people who are operating outside the law,” she explains. “There are many, many people who have debilitating diseases who have their card, who abide by all the conditions of the law. There’s no prosecution of them.”

Dispensaries, she contends, have been ruled illegal by the Michigan Court of Appeals, and as a result her office is determined to see that the law is enforced.

Not everyone agrees with her interpretation of the Court of Appeals ruling regarding the sale of medical marijuana.

But even if you do, argues Neil Rockind — one of the defense attorneys involved in the Clinical Relief case — that ruling wasn’t in place when the facility was raided and charges brought.

Even state Attorney General Bill Schuette, an ardent prohibitionist when it comes to any use of marijuana, argued before taking office that there’s “not a single paragraph, sentence or word” in the state’s medical marijuana law “that prohibits pot shops from opening in Michigan. …”

As Rockind notes, authorities in Oakland County didn’t have to use such a heavy hand to come down on the clinic and its employees. Instead of pursuing felony charges, they could have attempted to close the clinic by having the court declare it a public nuisance, making the issue a civil rather than a criminal matter.

Given that sort of go-for-the-jugular attitude on the part of prosecutors, O’Brien is to be commended for having the courage to “make the correct decision,” Rockind contends.

For her part, Barb Agro says she and her family are prepared to keep mounting a vigorous defense of their actions.

“I always told my kids, ‘Don’t go starting fights, but don’t back down from them either,'” she told News Hits in a phone interview from her home in Florida. “So we will continue to fight.”

She also thinks, however, that more must now be done to protect the rights of patients and caregivers. Which is why she says she’ll support the recently announced effort to get on the ballot a state constitutional amendment that would end marijuana prohibition in Michigan.

“I would never have supported that before,” she says. “But with all the confusion that there is, all the raids and all the money that’s being wasted, we might as well legalize it and start bringing in bucks [in the form of taxes on pot]. If we do that, then no one will have to go through what we’ve had to.”

via Metrotimes