McMorrow makes criminal law decisions, rules entertaining

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Kent  County Prosecutor’s Office Senior Attorney Timothy McMorrow, right, poses after his annual update with audience member Judge Mark Trusock of the 17th Circuit Court.

LEGAL NEWS PHOTOS BY CYNTHIA PRICE

by Cynthia Price
Legal News

Every year Timothy K. McMorrow of the Kent County Prosecutor’s Office stands up in front of a roomful of tough lawyers and makes them laugh.

He also makes them think. In fact, he pretty much insists that they think.

In his annual review of important court opinions, legislation and rule changes, he tells the large group in attendance that it is of paramount importance that they read the opinions as well as the statutes behind them. He cautions that they should not take his word for anything, since the summary sheets he distributes at the annual review and his verbal discussion are just his own interpretation, and there is no substitute for intimate knowledge of the applicable laws.

The lawyers are for the most part members of the Grand Rapids Bar Association Criminal Defense Section, and they care deeply about their clients. So, despite amusement at the humorous take McMorrow has on some of the court decisions, the attorneys seem open to his main message: you have to know the context.

Says McMorrow, “This is my thirtieth anniversary with the Prosecutor’s Office, and if I’ve learned one thing in my time, it’s that context is everything.”

As an illustration, he pointed to the Michigan Court of Appeals (COA) decision in People v. Cohen. The defendant, who was arrested for “co-possession of cocaine residue and paraphernalia in a car,” was later found to have a rock of crack cocaine. The District Court denied bindover on the cocaine residue, but the COA found that there was no violation of the standards for probable cause to arrest (thereby making the discovery of the cocaine after that arrest valid). “[P]probable cause for bindover is greater and imposes a different standard of proof.” McMorrow pointed out that even the probable cause standard for getting a warrant, which in this case they did not, is “only fair probability” and not very strict.

McMorrow cautioned, however, that in order to make use of the conclusions in this published decision, an attorney must carefully consider the facts of his or her case.

A lot of the humor in McMorrow’s presentation comes from his amazement at people’s actions. Such was the case in People v. Steele, where the defendant purchased Sudafed, a possible methamphetamine ingredient, at the same time as propane fuel, which can also be used in the meth-making process. The case concerned whether the word of the store’s loss prevention officer was sufficient for an investigatory vehicle or “Terry” stop (Terry v. Ohio); the COA ruled the stop was justified. McMorrow commented that, if one was intent on buying those two products to manufacture meth, it was probably worth two separate trips to the store.

The COA drew a similar conclusion in People v. Barbarich, where an officer made a “Terry” stop, eventually resulting in a drunk driving charge, based on another motorist’s mouthing “Almost hit me” while pointing at the defendant’s car. Even though the informant was unidentified, the court ruled that the comment was credible and reliable in the context in which it was made.
McMorrow said, however, that he thought this decision “really pushes the envelope.”

He went quickly through the  changes to existing legislation passed over the last twelve months, observing that he feels very comforted by the legislature’s diligence in passage of 2011 PA 151, which amends the Motor Vehicle Code to exempt a log slasher saw table from the requirement to have brakes. “Shows you what the legislature has really been up to,” he commented.

More telling were the revisions of the Sex Offender Registry Act (SORA) in PA 17-19 of 2010. He again urged the attorneys present to read the new acts from beginning to end. He noted that the provision to include  a “Romeo and Juliet” rule, exempting teens who have consensual sex from having to register, got most of the publicity, but in practice the act requires a great deal more of those who do have to register.

Moving to the court rules, McMorrow said he was initially really worried about the new jury instructions, in particular because he feared that prosecutors would have to come up with pages and pages of documents for jurors. But, he said, in practice it has not been onerous.

He asked 17th Circuit Court Judge Mark Trusock, who attended the update, what he had encountered. Judge Trusock said that he had been impressed by the quality of juror questions. There have been a few that he had to disallow, such as asking about the defendant’s prior record, but the rest “were actually good questions, at least in my courtroom.”

McMorrow spent most of his time, however, on the COA cases and those in the United States Supreme Court.

Referring to the case as “brilliantly prosecuted,” McMorrow discussed the Kent County case People v. Hartuniewicz. The COA ruled that MCL 333.7227(1)’s exemption of a substance that is “in a proportion or concentration to vitiate the potential for abuse” puts the burden of proof on the defense. The court also noted that the provision is intended to apply to a medically approved heterogeneous substance that might contain some minimal level of a controlled substance, not a controlled substance’s concentration in combination with a cutting agent.

McMorrow also argued the case in People v. Zajaczkowski, which he said a COA judge deemed “most interesting.” The defendant in that case was accused of having sex with his sister, his father’s daughter, but he had demonstrated through DNA testing that he was not “the natural child” of his father so the two were not genetically related. However, the COA ruled that the defendant’s parents’ divorce proceeding had called him “a product of the marriage,” and he had no standing to challenge that official document’s conclusion.

Noting his concern that “the rate of glaucoma among 20-year-olds in Michigan has increased substantially since the Medical Marihuana Act passed,” McMorrow declined to discuss the numerous opinions concerning that act, but covered them in his handouts. “We can all agree that it’s a terribly written law,” he said, while cautioning that so much is still in flux it is hard to draw conclusions based on current court opinion.

The United States Supreme Court decisions involving the Confrontation Clause were of great interest, particularly because one is a Michigan case, which reversed the Michigan Supreme Court’s decision. Returning to the “context” theme, the court ruled in Michigan v. Bryant that courts must take into account a number of factors, such as where and for what purpose a victim makes an identification of a shooter, in determining whether such statements are testimonial.

The conclusions in Bullcoming v. New Mexico, in which SCOTUS ruled that in order for blood alcohol tests to be admissible, the analyst who performed the test must testify, have far-reaching consequences for criminal law. In that instance, another lab analyst who reviewed the report testified, but the high court did not find that sufficient and said it violates the Confrontation Clause.
A related case in Michigan came to similar conclusions about expert testimony. People v. Fackelman concerned an insanity claim where the prosecution expert witness differed from the defense expert, but both had relied on a third expert’s report made right after the incident. The failure to have the third expert appear in court, the COA opined, violated the defendant’s right to confront witnesses.

Another case concerning evidence originated in Kent County. The COA ruled in People v. Buie that, even though the defendant’s counsel agreed to the use of a two-way interactive video with a witness, the defendant’s objection should have been taken into account, and his witness confrontation rights were violated. The case is on further appeal.

McMorrow speeds through a great deal of material in these annual updates, but the significant turnout each year is testament to just how helpful they are.