McMorrow continues to share comprehensive criminal law updates despite new position



by Cynthia Price
Legal News

Tim McMorrow’s annual criminal law update for the Grand Rapids Bar Association (GRBA) included both a verbal and written disclaimer that his information “does not necessarily reflect the views, opinions, or position of the Michigan Supreme Court Commissioners’ Office or the Michigan Supreme Court.”

That is because the former Chief Appellate Attorney for Kent County moved on after his retirement to become a contract Commissioner for the MSC.

Nonetheless, GRBA President Joy Fossel referred to him as “our guru of criminal law” as she introduced him to the group of 25 or so attorneys present at Monday’s Criminal Law Section meeting.

Fossel also acknowledged the pain participants were feeling as a result of the Las Vegas massacre and said she felt members of the legal profession should “double down” on their belief in the rule of law.

She noted that, prior to joining her current firm, Varnum, she worked for McMorrow writing appellate briefs.

The other disclaimer McMorrow stated is that what he presents in these updates is just a short “blurb” about each decision and statute covered, and that it is absolutely critical to read the opinion or law in full.

“If I learned anything in my career it’s that context is everything. What’s acceptable in one context is not in another, so read the case entirely and see if it fits,” McMorrow said.

The criminal law update comes with a lengthy summary sheet divided into three areas: Michigan statues, which is less comprehensive and covers only “selected” statutes adopted in 2017; published Michigan decisions from Aug. 1, 2016 to Sept. 8, 2017; and United States Supreme Court opinions from the October Term 2016.

Though with his usual dry wit and quiet humor, McMorrow sped through  his comments on several of the items included in the summary in order to comply with time constraints.

McMorrow declined to say much about the Michigan laws. He noted only one in any kind of detail: 2017 Public Act 9, which limits incarceration for technical probation violations. The new law, as reflected in MCL 771.4b, sets a maximum 30-day incarceration period with a number of exceptions (for example, consumption of alcohol if on probation for drunking driving third offense), starting Jan. 1, 2019. McMorrow cautioned the attorneys that there is nothing in the law that prevents a court from revoking probation altogether for a technical violation.

He also commented, “I have not even begun to go through the Medical Marihuana Act. The big problem with that act is, people heard about it and thought it was like the ones in other states. But Michigan’s was far more restrictive. These new acts [passed into law recently] are going to try to make some sense of it, so if you’re involved in marijuana law, you’re going to want to look at those statutes.”

McMorrow noted that many of the U.S. Supreme Court opinions fell under the category of Habeas Corpus, but he was not going to go into those.

One he did cover is Packingham v. North Carolina, which ruled that a state law precluding registered sex offenders from accessing social networking sites which may allow minors to have personal pages “impermissibly restricts lawful speech in violation of the First Amendment,” according to the summary. The sex offender noted that he was not attempting to contact minors or have them contact him, and SCOTUS?agreed that the state law violated his first amendment rights.

In Pena-Rodriguez v. Colorado, the Supreme Court held that if a juror makes a clear statement that shows clear racial stereotyping or animus, the Sixth Amendment rule that a jury may not be impeached for its verdict gives way. “I was anticipating we’d have all sorts of claims under this ruling, but that didn’t happen. You have to have proof that it actually happened, not just allege it in a general way,” McMorrow said.

There were a substantial number of cases summarized from the criminal appellate decisions in Michigan (about 112 entries), but McMorrow had a particularly interesting angle on People v. Denson, which considered Rule 404(b) on submission of evidence to show character. He had been the appellate attorney on an earlier case, People v. Vandervliet (1993), which made introducing such evidence easier. “Should I duck now?” he asked the defense-attorney audience.

In Denson, according to McMorrow’s summary, the prosecution was allowed to introduce an earlier conviction for assault that bore no close similarities to the assault crime of which the defendant was accused and (as the prosecutor so much as admitted in the closing argument) was used to show proclivity, the exact thing Rule 404(b) prohibits. McMorrow’s summary of the opinion said it states, “...trial court must closely scrutinize the logical relevance of the other-acts evidence” or risk error.

Among many other fascinating cases and decisions, McMorrow talked about People v. Sharp, which held that it was not a violation of rape shield laws to ask a victim if she had had sex with anyone else when she hadn’t and the intention was to show that her pregnancy resulted from the sexual assault; People v. Horton, which overruled earlier  cases Vonins and Bordash in holding that it is permissible for a defendant “to attack the voluntary and intelligent character of the plea by arguing that... counsel provided ineffective assistance during plea negotiations;” and People v. Frederick, where the appeals court remanded to the lower court for determination if a law-enforcement “knock and talk” at 4:00 a.m. was allowable.