The Michigan Prosecutor Volume 49, No. 4 April, 2014 PAAM PRESIDENT KYM WORTHY ANNOUNCES RAPE KIT Inside This Edition Legislative News 2 $130 VR Assessment is OK 2 25 Years for Juvenile CSC 2 LEGISLATION On March 10, 2014 PAAM President Kym Worthy invited members of Congress, the Michigan Legislature, law enforcement, government officials, and other stakeholders from across the state and nation to a sponsored breakfast. She was joined at the breakfast by Mariska Hargitay (Actress, Law & Order: SVU), who is the Founder & President of the Joyful Heart Foundation, a non-profit charity whose vision is to educate and empower survivors of sexual assault, domestic violence and child abuse. The goal was to motivate our colleagues to join the battle against the rape kit backlog. Following the breakfast, Prosecutor Worthy announced legislation that will address the rape kit backlog. Our goal is to set up a system to track sexual assault kits for the benefit of victims, along with holding these cowardly rapists accountable. PAAM looks forward to working with Representative Walsh, Senator Johnson, and Senator Jones in crafting this crucial legislation. In 2009, the Wayne county prosecutor’s office found over 11,000 untested rape kits in an old police property storage facility. Some of these kits have been sitting in a box on a shelf for over 25 years. Since that day, it has been Prosecutor Worthy’s mission to raise awareness to the issue and ensure that justice is established for all victims of sexual assault by eliminating the backlog. Ms. Hargitay has partnered in this effort and both she and Prosecutor Worthy have testified in front of Congress to get these sexual assault kits tested. The initial results have been successful. Since that day in 2009, we have identified almost 500 sexual assault offenders and 127 serial rapists through CODIS hits from across the country. But, we are not finished. We will continue to pursue justice, test all viable kits, and get these egregious offenders prosecuted and off the streets. Offender is Constitutional Brady Obligations 3 Extortion 3 Help Wanted 4 DV Firearm Disqualification 4 Ms. Hargitay and Prosecutors Kym Worthy, Bill Forsyth, Mike Wendling, Vic Fitz, Doug Lloyd, Brian Mackie and Matt Wiese © April, 2014 - Prosecuting Attorneys Coordinating Council - All rights reserved. This product is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Any copying, publishing, posting or transfer without written approval from PACC is prohibited. Volume 49, No. 4 Page 2 LEGISLATIVE NEWS 2014 PA 21. Effective Febr uar y 25, 2014. Cor r ects a r efer ence in the day par ole act for jail inmates. 2014 PA 22 & 23. Effective Mar ch 4, 2014. Cr eates the pr ocedur es for sentencing a person under the age of 18 who commits an offense punishable by LWOP. 2014 PA 28-29. Effective Mar ch 6, 2014. Requir es ever y county to have an inter agency agreement for mental health treatment for individuals entering the criminal justice system. The agreement must be in place by October 1, 2014. 2014 PA 30. Effective appr oximately Mar ch 30, 2015. Removes a per son fr om the child abuse central registry after 10 years unless the case involved serious physical abuse or sexual abuse. 2014 PA 32. Effective Mar ch 11, 2014. Eliminates the r equir ement that the Sher iff locate and kill all unlicensed dogs. 2014 PA 63. Effective Mar ch 27, 2014. Excludes shor t bar r eled shotguns or short barreled rifles that are lawful under federal law from prosecution under MCL 750.224b. 2014 PA 64. Effective Mar ch 28, 2014. Replaces the ter m mental r etar dation with the term intellectual disability in the criminal sexual conduct definitions. 2014 PA 99. Effective J uly 1, 2014. Changes the laws r egulating the pur chase and sale of scrap metal. 2014 PA 111-112. Effective J uly 14, 2014. Makes technical changes to the ar son statutes. 2014 PA 113. Effective J uly 14, 2014. Allows secur ity officer s at a nuclear facility to use deadly force to prevent sabotage and crimes involving the infliction or threatened infliction of serious physical harm. The complete text of the Public Acts is available at www.legislature.mi.gov RETROACTIVE APPLICATION OF THE VICTIM RIGHTS ASSESSMENT DOES NOT VIOLATE THE EX POST FACTO CLAUSE. The felony victim rights assessment was $60 when the defendant committed the crime. It was $130 when he was sentenced. He claimed imposing the $130 assessment violated the ex post facto clauses of the US and Michigan Constitutions. A unanimous Michigan Supreme Court held that the assessment is a non-punitive civil remedy and could be applied to pending cases. People v Earl, MSC No. 145677, March 26, 2014. 25 YEAR MANDATORY MINIMUM SENTENCE FOR JUVENILE CSC DEFENDANT IS CONSTITUTIONAL. The 17-year-old defendant was convicted of 1st degree CSC for penetrating a 5 year old. The trial judge imposed a sentence of 30-50 years. The defendant claimed the mandatory 25 year minimum sentence required by MCL 750.520b(1)(a) was cruel and/or unusual punishment under Miller v A labama. Judges Donofrio, Cavanagh and Jansen held that because the 25 year sentence gives the juvenile an opportunity for parole, it was not unconstitutional under Miller. They remanded for resentencing, however, because the judge did not articulate substantial and compelling reasons for departing upward from the 25 year minimum sentence. People v Payne, CA No. 314816, April 8, 2014. Volume 49, No. 4 Page 3 THE DEFENSE HAS NO OBLIGATION TO DISCOVER BRADY MATERIAL. In People v Lester, 232 Mich App 262 (1998) the Court of Appeals established a four part test for determining a Brady violation: 1. That the state possessed evidence favorable to the defendant. 2. That the defense did not possess the evidence nor could have obtained it with reasonable diligence. 3. That the prosecution suppressed or failed to disclose the evidence. 4. That the evidence was material such that the failure to disclose it undermined confidence in the verdict. A unanimous Michigan Supreme Court held that Brady is a prosecution disclosure rule, and there is no requirement that the defense use due diligence to attempt to find Brady material. People v Chenault, MSC No.146523, April 4, 2014. THE SERIOUSNESS OF THE COMPELLED ACT IS IRRELEVANT TO EXTORTION. The defendant contracted with the victim to repair the defendant’s car. The victim was working on the car in the defendant’s driveway when it started to rain. The victim stopped working because of the rain. The defendant obtained a handgun and told the victim he would “silence” him if he didn’t get back to work in the rain or return part of the defendant’s repair money. The defendant was convicted of extortion for making a malicious threat to injure the victim unless the victim did either of the requested acts. Six Justices upheld the conviction. They noted that the extortion statute, MCL 750.213, prohibits malicious threats to injure a person or property with the intent to compel the victim to do any act against the victim’s will. Contrary to the decisions in People v Fobb, 145 Mich App 786 (1985) and People v Hubbard, 217 Mich App 459 (1996), there is no requirement that the compelled action be serious or significant. Justice Cavanagh concurred in the result only. People v Harris, MSC No. 146212, April 3, 2014. Volume 49, No. 4 Page 4 EMPLOYMENT OPPORTUNITIES Ingham County APA. Salary $ 45,824 – $ 54,441 DOE. Bar Membership required, prior prosecution experience preferred. All applicants must fill out an on-line application at www.ingham.org. Please direct any questions to Lisa McCormick, Chief Assistant Prosecutor, 517-483-6247. Remember to check our website for additional employment information: www.michiganprosecutor.org USSC DEFINES MISDEMEANOR CRIME OF DOMESTIC VIOLENCE FOR PURPOSES OF FEDERAL FIREARM DISQUALIFICATION. Federal law disqualifies a person convicted of a misdemeanor crime of domestic violence from possessing a firearm if the crime has as an element the use or attempted use of physical force. 18 U.S.C. 921(a)(33)(A). The United States Supreme Court held that the degree of force required for a conviction to qualify under this statute is that required for a common law battery, namely an offensive touching. United States v Castleman, No. 12-1371, March 26, 2014. PROSECUTING ATTORNEYS COORDINATING COUNCIL PROSECUTING ATTORNEYS ASSOCIATION OF MICHIGAN 116 W. Ottawa Street, Suite 200 Lansing, Michigan 48913 Phone: 517-334-6060 Fax: 517-334-6351 E-mail: [email protected] We’re on the web www.michiganprosecutor.org “The council shall keep the prosecuting attorneys and assistant prosecuting attorneys of the state informed of all changes in legislation, law and matters pertaining to their office… . . .To the end that a uniform system of conduct, duty and procedure is established in each county of the state.” MCL 49.109 Printed under the authority of 1973 PA 203