Monthly Archives: January 2013

Prosecutors: More than a dozen drug cases dismissed in Oakland County after learning a deputy lied under oath

A deputy with the Oakland County Sheriff’s Office has been fired after he was accused of lying on the witness stand during a preliminary hearing in a drug case.

Marc Ferguson, a 23-year police veteran with the Pontiac Police Department and the Sheriff’s Office, lied about opening a package containing marijuana at a Pontiac shipping company before obtaining a search warrant, officials said Tuesday.

The statement occurred in September. Shortly after Ferguson’s testimony, the assistant prosecutor working the case was interviewing witnesses.

“One of the witnesses said the officer ‘opened that package in my presence,’” Oakland County Chief Assistant Prosecutor Paul Walton said.

The assistant prosecutor who was working the case recalled Ferguson’s prior testimony. She was told by a second witness that Ferguson opened the package before obtaining the  warrant.

“Then she knew immediately that she had an officer that lied under oath,” Walton said.

The assistant prosecutor notified her supervisor, and the information quickly made its way to Walton and Oakland County Prosecutor Jessica Cooper.

“There was no hesitation on the prosecutor’s part,” Walton said. “She said ‘Dismiss the case.’”

Cooper said her office focuses on ethics every day.

“I have always told my prosecutors — I tell them every day, and I tell them in training — that ethics comes first, and that it’s our job to do justice,” she said.

The case was dismissed Sept. 24, Walton said.

The Prosecutor’s Office then began the process of reviewing about 100 then-active cases that Ferguson was listed as a witness for. In each case, prosecutors had to determine whether they had enough evidence to try the case after striking Ferguson from the witness list.

If the answer was yes, Ferguson’s name was struck from the witness list and the case proceeded; if the answer was no, and the case was dismissed. Including cases in which Ferguson was the sole affiant, 16 cases were dismissed.

Walton said the decision to strike Ferguson from witness lists and dismiss some cases was necessary on multiple fronts.

“One is ethics and fairness, which is what this office stands for, and the other thing is more of a legal argument,” he said.

“We can’t call a witness to a witness stand with the idea that they might have a Fifth Amendment claim. He might have a Fifth Amendment claim, and we’re not going to grant him immunity.”

Walton acknowledged that more cases may be eligible for review, but he said it would be impossible for officials to review every case Ferguson has testified in over his 23-year career. A longtime member of the Pontiac Police Department, he was one of many officers hired by the Sheriff’s Office when they took over policing duties for the city, which made the change due to ongoing financial problems.

“The issue is he lied in this event,” Walton said.

“We can’t equate that he lied 23 years ago. I know he lied at this point, and going forward, he’s going to affect our cases.”

Walton said his office immediately shared the information with the Sheriff’s Office.

“They understood we were going to end up having to dismiss a lot of cases,” he said.

“Obviously they were disappointed, but they understood and they took the necessary actions they needed to from an employment status and looking forward.

“(Oakland County Undersheriff Mike) McCabe repeatedly said ‘This will not be tolerated,’ and that sentiment is echoed by the prosecutor.”

Ferguson will not face any charges.

“As we keep saying, we are not the investigative agency,” Cooper said.

“We can work on what investigative agencies bring us for purposes of complaint forms.

“If we’re talking about perjury, it is a difficult proof in court.”

Cooper said the Sheriff’s Office is taking the “most reasonable road for them to guarantee” that Ferguson will never again be a deputy.

“We have great faith in whatever they do, in terms of doing the right thing. We have a very fine working relationship.”

Sheriff’s Office officials were not immediately available for comment Tuesday. Reports have indicated that charging Ferguson runs risks, because if he is acquitted or the case is dismissed, then he can get his job back.

Walton applauded the assistant prosecutor who reported Ferguson’s false testimony.

“We’re very proud of the courage the assistant prosecutor had to immediately address this issue,” Walton said.

“There was no hesitation on her part.”

via Oakland Press

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When Police Lie, How Should The Criminal Justice System React?

What happens when a police officer lies?  That question has caused a myriad of litigation, debate and discussion because when the police lie it is the equivalent of kicking sand in the eyes of the referee in a game.  The challenge?  How do we determine that the officer has lied? How do we discover that an officer lied in a particular case?  Sometimes it is possible through diligence and investigation.  For example, several times within the past year, Neil Rockind and Colin Daniels of Neil Rockind, P.C., have discovered and proven that a police officer lied, either in court or in an affidavit for a search warrant.  On one such occasion, Rockind proved that a narcotics detective lied twice: once in an affidavit for search warrant and again in court during a preliminary examination.  The detective testified in an affidavit that he got information from an unknown source that our client was growing marijuana. Based upon this allegation, the detective went to our client’s house and claimed that he could smell an odor of marijuana emanating from a vent.  Rockind and Daniels proved that there was no “unknown and confidential source” but rather that the detective found a medical marijuana patient certification form, with our client’s name affixed, in a warehouse and used it to investigate our client. The detective lied.  We also proved that there was no odor of marijuana coming from the condominium — another detective unwittingly admitted that there was no odor of marijuana from the vent as he stood right in front of it waiting to execute a search warrant.  The Detective lied there also.

In another case, a road patrol officer claimed that she arrested our client based on certain driving behavior (alleged weaving).  Through the use of videotape, a measuring program, and cross examination, we proved that the officer was lying.  She lied and the judge dismissed the case.

In yet another case, a well-known marijuana case in which Neil Rockind cross-examined a police detective and proved that: 1) he has “mad cross examination skills”, according to court watchers and observers, and 2) the detective  testified untruthfully in both district court during a preliminary examination and in an affidavit for a search warrant.  That case was dismissed as well.  The problem is not what happens when Rockind or other lawyers can prove that a police officer lied (it’s not a problem because the case gets dismissed); the problem is what happens when we cannot prove lies in our case, but the officer in our case has lied in other cases … What then? 

The law requires that this information be turned over to the defense.  Yes, you read that correctly.  The law requires that this information be turned over to the defense.  It cannot be hidden; it cannot be brushed under the proverbial rug.  This material and information is referred to as Giglio and Brady material and so known is this obligation that even police organizations such as The International Association of the Chiefs of Police acknowledge this duty.  Here is an article in which the International Association of the Chiefs of Police acknowledges this duty.

The police and prosecutors are tasked with policing themselves.  Does it happen?  Can they be trusted to do this difficult task?  Rare is the case when a prosecutor approaches the defense attorney and says, “here is a file on a police officer in our case who was disciplined for lying or we think lied previously.”  While that should happen every time, it doesn’t. We suggest that a prosecutor has a duty to disclose that information even absent an official disciplinary finding — they should disclose the information when in their experience and/or knowledge a police officer has lied or given false testimony.  The International Association of the Chiefs of Police (“IACP”) even acknowledges that any acts of untruthfulness of a police officer should be disclosed.  This means that when a prosecutor dismisses a case or even dismissed a single count due to a lie, the prosecutor should thereafter disclose that information to the defense in every case.  Period.  Voluntary disclosure of that information should come with the police reports, records and witness statements in the case — no different than turning over a witness statement or any other discovery.  It should be standard.  Sadly, it is not and the stories of the failure to disclose are legendary.  Sen. Ted Stevens’ prosecution comes to mind.

In US v Stevens, the federal government prosecuted Ted Stevens, the sitting Senator from Alaska.  The prosecution obtained a conviction.  The conviction was overturned and the prosecutors were investigated.  The prosecutors had withheld evidence favorable to the accused. National Public Radio summarized the Brady and Giglio violations.  In a highly publicized opinion, the trial judge, the Hon. Thomas Sullivan issued an opinion finding misconduct on the part of the prosecutors.

While Senator Stevens’ story is well-known and publicized, others are less so.  Prosecutors often fail to identify information as Brady or Giglio material and instead do the opposite — they proceed with new cases with the same detectives, never tying the previous misconduct to a continuing duty to disclose.  Others play “cute and clever” with the materials — they sit on it, stay mum, and wait for individual defendants to enter pleas of guilty or otherwise.

Is Stevens’ the only example?  No.  Does the prosecution disclose it willingly?  Experience reveals that too often they do not.  Justice deserves better.

If you or a loved one believe that a police officer has lied in a case that is important to you, please contact Neil Rockind, P.C. to see if we can be of assistance in your case.

4 Highland Park police officers accused of taking bribes, transporting fake cocaine, conspiring to murder

Beating and then taking a bribe from a man facing trial.

Scheming to protect and deliver what they thought was cocaine.

Even agreeing in principle to kill someone for $20,000.

The allegations unsealed Friday in a criminal complaint against four Highland Park police officers reads like a script for a movie about dirty cops. Although only one — Anthony Bynum — is accused of agreeing to perform a contract killing, all are alleged to have taken money to transport what they thought was cocaine.

During a news conference Friday, U.S. Attorney Barbara McQuade sought to assure the public that all those involved in the alleged scheme have been arrested.

“This misconduct in this case is limited to the four officers charged,” she said.

She also put other officers in the region on notice.

“Police officers who take bribes and participate in criminal activities will be discovered and prosecuted,” she said in a statement. Officials also indicated that the multi-agency Public Corruption Task Force involved in the arrests would be presenting more cases in the future.

McQuade credited Highland Park Police Chief Kevin Coney with initiating the federal investigation. Even before the current allegations, Coney was looking into the conduct of the officers, she said. The criminal complaint references three instances between May and July in which residents filed written statements saying they had been beaten or had items stolen from them by Officers Bynum and Price Montgomery together, or by Bynum alone.

The four officers — Bynum, 29, Montgomery, 38, Shawn Williams, 33, and Craig Clayton, 55 — face charges including bribery, conspiring to distribute 6 kilograms of cocaine and carrying firearms in furtherance of a drug-trafficking crime. Bynum, Montgomery and Clayton are all of Highland Park; Williams is from Detroit.

The federal investigation began after Bynum and Montgomery arrested a man on a firearms charge in August. The complaint says the officers beat the man, who was not named, and stole $1,700 in cash and a gold ring from him. The complaint says the man, who eventually began working with the FBI as an informant, agreed to pay the two officers $10,000 in exchange for failing to appear for his trial, which led to the dismissal of the case.

The complaint says that Bynum and Montgomery then offered to help the man in his drug dealing. It notes that they claimed to know of “a drug trafficker who uses women to transport drugs from California to Michigan.”

As the law enforcement sting developed, Bynum and Montgomery eventually persuaded Williams and Clayton — both auxiliary Highland Park officers — to participate in one of two deliveries involving the transport of what turned out to be “sham cocaine” from the Chili’s parking lot at Oakland Mall in Troy to a Meijer parking lot in Taylor in November and January, the complaint says.

Bynum’s mother asked for prayers for her son following his initial appearance in federal court in Detroit on Friday afternoon.

“My son is a good boy. He is a good officer,” said Annie Bynum, 65, of Detroit. “I can’t even believe this is happening.”

Bynum’s mother said her son has two sons of his own, a 10-year-old and a 7-month-old. Bynum also is an officer for Detroit Public Schools, and his mother said he has been a pastor at two churches in Detroit and Highland Park.

During the hearing, Magistrate Judge Laurie J. Michelson set bail for all four at $10,000 in unsecured bond. Michelson also ordered Bynum to wear a tether and be subject to a curfew because federal authorities said he is a flight risk and noted that he is accused of various violent incidents.

All four were ordered not to have contact with one another unless their attorneys are present, or with any witnesses, victims or members of Highland Park police, except to retrieve property. Their travel is restricted to eastern Michigan.

Preliminary examinations were set for Feb. 15.

The men sat side by side with their legs shackled as they waited to be called before Michelson, who appointed federal defense attorneys to represent them. Bynum wiped his eyes several times as he waited his turn. All four spoke in one- or two-word answers as Michelson addressed them.

via Freep

Court of Appeals sends medical marijuana case back for hearing

The criminal case against a Lake Orion woman who used to work at a Ferndale medical marijuana dispensary has been sent back to Oakland County Circuit Court for a continuation of an evidentiary hearing..

Barbara Agro was 70 years old when Clinical Relief — a dispensary where Agro was employed as a receptionist — was raided in August 2010. Investigators also searched the home that Agro shared with her husband, Sal Agro, who died of a heart attack about a week after the Aug. 25, 2010 raid.

Barbara Agro ultimately was convicted of one count of delivery/manufacture of marijuana and was sentenced to 90 days of probation, along with 20 hours of community service.

Agro appealed the conviction, arguing that she should have been allowed to disclose the fact that she was a medical marijuana patient to the jury.

“(Agro) claimed that she and her husband were qualifying patients and caregivers, the plants were kept in an enclosed, locked facility, and she did not have more than the allowable amount of plants,” the Court of Appeals decision reads.

The trial court, Oakland County Circuit Judge Wendy Potts, ruled during a pretrial hearing that Agro failed to prove that her home, where she and her husband had 17 marijuana plants growing in the basement, was a locked facility, as the law requires.

“Because (Agro) failed to show that she was in compliance with the (Michigan Medical Marihuana Act), the trial court concluded that … (Agro) could not assert an affirmative defense,” the opinion reads.

The prosecution has conceded that the trial court’s conclusion was valid at the time but is contrary to a subsequent Supreme Court ruling on the law, which was published last year. Agro was sentenced in July 2011.

Agro argued that a new trial was warranted, while the prosecution argued that the pretrial hearing should be continued, and the Court of Appeals sided with the prosecution.

There are three paths that the case could head down as a result of the decision, as outlined in the opinion.

 

“If there are no material questions of fact and (Agro) establishes the elements (of the affirmative defense), then the charges shall be dismissed,” the opinion reads.

“If … there are material questions of fact, then the defense must be submitted to the jury and, in that case, defendant is entitled to a new trial.

“If there are no material questions of fact and (Agro) fails to establish the elements … then she is not entitled to assert the defense at trial and there would be no basis to vacate the defendant’s conviction.”

Agro also argued that she was not allowed to present a defense — in this case that she mistakenly believed she was complying with the law. “Ignorance of the law or a mistake of law is no defense to a criminal prosecution,” the opinion reads, citing another case. The court ruled there was no error.

The court declined to address a due process question, due to the decision to send the case back to trial court. The court did rule that it was “improper” for the prosecutor to speak about whether the case was “legally sound” during closing arguments, but ruled that jury instructions should have been sufficient to “cure the prejudicial effect” of the statements, citing a prior case.

via Oakland Press

One Of The BEST Cross-Examinations Neil Rockind Has Ever Performed

In this case, our firm did a lot of research and concluded that the police officer had deceived a judge twice: Once to a district court judge in a submitted affidavit to a search warrant and once during a cross-examination at a preliminary examination. Once we got up to the circuit court we filed a Motion to Dismiss and as a part of the evidentiary hearing we challenged the officer’s credibility and ability to tell the truth in court. Needless to say, he did not appreciate Neil’s candor.

Check out the transcript here: Walker Hearing Transcript (Redacted)

Supreme Court signals blood tests protected by Fourth Amendment

Justices indicated Wednesday that the dangers of drunken driving don’t trump the Fourth Amendment, peppering lawyers for the state of Missouri with objections to their request that the Supreme Court allow law enforcement to order blood tests for DUI without suspects’ consent.

The case, Missouri v. McNeely, is seen as a landmark that could clear up almost 50 years of uncertainty over the constitutionality of blood tests that are conducted without a warrant. Legal scholars say it could rewrite drunken-driving laws in all 50 states.

The case hinges on how you interpret a 1966 opinion by then-Chief Justice William Brennan, whowrote (.pdf) that law enforcement should get a warrant before taking a blood draw without a suspect’s consent, except in a few very limited circumstances that rise to the level of an emergency.

Missouri wants the court to declare that the dissipation of alcohol in the bloodstream is, on its face, an emergency allowing officers to get a blood test immediately and without a warrant.

But justices indicated that they firmly believed that taking someone’s blood was an intrusion that in most cases constituted a government “seizure” subject to protection of the Fourth Amendment and requiring the subject’s permission or prior approval from a judge.

“How can it be reasonable to forgo the Fourth Amendment in a procedure as intrusive as a needle going into someone’s body?” Justice Sonia Sotomayor asked John Koester, a prosecutor in Jackson, Mo., who represented the state Wednesday.

Related: Full preliminary transcript of Wednesday’s arguments (.pdf)

Sotomayor said that if the court ruled Missouri’s way, it would be giving law enforcement free rein to “use the most intrusive way you can to prove your case,” which wouldn’t always be the most constitutionally sound way.

The officer who arrested Tyler McNeely acknowledged that he didn’t seek a warrant when he told a hospital lab technician to draw McNeely’s blood after a DUI stop in 2010 because he believed he didn’t need to, not because he didn’t think he couldn’t get one in time.

That troubled several justices, who wanted know how a suspect’s fundamental Fourth Amendment rights could be overshadowed for the convenience of law enforcement.

“Why should the Fourth Amendment permit the search to take place without the warrant when it could have been obtained?” Justice Samuel Alito asked Nicole Saharsky of the U.S. solicitor general’s office, who joined Koester in arguing Missouri’s side.

Justice Ruth Bader Ginsburg said, “It was and I think still is the main rule that if you can get a warrant, you must do that.”

Even Antonin Scalia, the court’s most law-and-order justice, questioned Missouri’s argument, telling Koester, “Once we say that you don’t need a warrant, you know, even if things improve, the game’s up, right?”

“Why don’t you force him (McNeely) to take the Breathalyzer test, instead of forcing him to have a needle shoved in his arm?” Scalia asked.

Justices’ questions during arguments don’t always signal how they will vote; the justices often pose hypotheticals designed to crystallize or clarify a contrary position.

But Lyle Denniston, a Supreme Court expert writing on Scotusblog, said it seemed clear that “the court is not going to let police across the nation order — on their own authority — the taking of blood samples from those suspected of drunk driving.”

“Two impressions were dominant throughout the argument: the Justices generally do regard the use of a needle to take a blood sample as quite an intrusive gesture by the government, and the Fourth Amendment warrant requirement should not be cast aside for all cases of drunk driving when officers decide to order a blood draw,” he wrote.

via NBC News