Thursday, February 27, 2014


Story First Appeared in the Detroit Free Press.

Is some unhappily married (but politically well-connected) Michigander trying to avoid a costly property settlement by rewriting the state's divorce laws?

That's what judges and family lawyers throughout the state are asking after discovering that some of Lansing's most influential political fixers are greasing the skids for two bills that would dramatically alter the rules for dividing assets in high-stakes divorces.

Under current Michigan law, any appreciation in the value of one spouse's business is treated as marital property if it occurs during the marriage, and each partner is entitled to half if the marriage breaks up. If a spouse's $1-million business grows into a $50-million business over the course of a 25-year marriage, for example, the divorcing partner would be entitled to half the $49-million increase.  If you need an expert Livonia divorce lawyer contact the Chasnick and Terrasi law firm.

But two bills introduced last month by state Rep. John Walsh, R-Livonia, would tip the scales in favor of the working spouse, making it harder for the stay-at-home partner to claim a share in the family business and limiting a judge's discretion to award business assets to her or him.

Diana Raimi, a veteran divorce lawyer and property law expert assigned to analyze the legislation for the American Academy of Matrimonial Lawyers, said she was amazed when lobbyists described the initiative as an effort to codify and clarify Michigan's marital property laws.

"It reads like a special-interest, targeted remedy for one person trying to head off a particular set of difficulties in court," Raimi said Wednesday afternoon. Together, she added, the bills proposed by Walsh "amount to the most anti-family piece of legislation I've seen in my 33 years of practice."

Wexford County Probate Judge Kenneth Tacoma, who heads the Michigan Probate Judges Association, said judges who preside over divorce cases were blindsided by Walsh's bills. Tacoma said his organization, along with the association that represents Michigan's circuit court judges, will formally oppose it.

"We think it represents a pretty radical change in the law," Tacoma said.  If you need an expert divorce lawyer in Shiawassee County contact the Kronzek & Cronkright law firm.

Who gains?
Exactly who's behind the proposed rewrite of Michigan's marital property laws remains a mystery. But the campaign already involves some of the state's most expensive and influential players.

Richard McLellan, a veteran elections law lawyer best known for work on behalf of the Michigan Chamber of Commerce and his political ties to former Gov. John Engler, said Wednesday that he encouraged Walsh to introduce the bills earlier this year after being approached by "a group of lawyers and others" whom he declined to identify.

"I represent nobody who is getting a divorce," McLellan said. But he hedged when I asked him whether the legislation he's lobbying for was designed to enhance the legal position of a specific party or parties.

"Obviously, either the lawyer or their clients have an interest in getting the law changed," McLellan said.

"But I think it's good public policy," he added. He said that most of the opposition to the bill had come from what he called "missionaries for the family who don't want any change."

Walsh didn't return my calls to his office. But he told my Free Press colleague Chris Christoff on the House floor Wednesday that he had been thinking about the marital property legislation for a couple of years before he introduced it last month, and pooh-poohed the suggestion that it was designed to help a specific divorce litigant.

"That's not me." Walsh said. "I have not drafted any bill to address any single individual since I got here." He added that he expects to hear from "a lot of people" when the bill comes up for a hearing this morning before the House Judiciary Committee he chairs.
Derailed on the fast track

But the bills' many critics almost missed their chance. Judges and Michigan Bar officials say neither Walsh nor McLellan sought their feedback to the proposed changes.

Lawyers and judges learned that the bills were on what Clinton County Probate Judge Lisa Sullivan calls "the fast track" only on June 16, when a lobbyist for the probate judges association noticed that Walsh had scheduled hearings for the following day.

"We took a vote (to oppose the bills), but we didn't have the ability to get someone down there quickly enough for the hearing," Sullivan said Wednesday. When the probate judges' lobbyist walked into the hearing room, the only people scheduled to testify were McLellan and Jay Cunningham, a Birmingham divorce lawyer McLellan had hired as an expert witness. McLellan also brought along Bill Wortz, partner in the multi-client lobbying firm widely perceived as having the closest ties to the Snyder administration.

But Walsh gaveled the hearing to a close before either man could testify, and said he'd take the bills up again at a committee meeting this morning.

Wednesday, I asked McLellan whether it wasn't customary to consult the divorce lawyers and family court judges before proposing substantive changes in Michigan divorce law.

"That's the normal course," he conceded.

"But the bar can be a graveyard for good ideas," McLellan added. "I took a route that is a more direct route."

Walsh promises that all the interested parties will get a chance to be heard -- and most of those I spoke to Wednesday said they expected the legislation to wither under closer scrutiny.

"This may benefit some wealthy litigants, and somebody has paid a lot of people a lot of money to get it done," said Denise Alexander, the immediate past president of the American Academy of Matrimonial Lawyers Michigan chapter. "But it's a lot of money spent on something that would negatively impact families in every legislator's district.

"It's amazing," she added, "that some people think they can buy legislation and get away with it."

Monday, February 24, 2014

One-Hit Deaths Spur Booze Outcry as Sydney Calls Last Drinks

This story first appeared in Bloomberg News.

A single, unprovoked punch to the head from a stranger was enough to kill teenager Thomas Kelly as he walked through Sydney’s most famous nightspot with his girlfriend. Almost two years on, authorities are fighting back.

His death sparked a public outcry against alcohol-fueled violence that intensified after another 18-year-old died last month from an attack in the same Kings Cross district. More than 90 people have now been killed in Australia since 2000 in one-punch assaults that researchers say are mostly tied to alcohol.

“The viciousness is increasing,” said Gordian Fulde, head of emergency medicine at Sydney’s St Vincent’s Hospital, which treated both teenage victims and a 23-year-old man with severe head injuries after a December beating near Bondi Beach. “All of it because of excess drinking. It’s totally unnecessary.”

Under a crackdown on binge drinking starting today, people will be banned from entering many bars and nightclubs in central Sydney after 1:30 a.m., while stores across New South Wales state won’t be allowed to sell takeaway beer, wine and liquor after 10 p.m. Average alcohol consumption in Australia, where liquor was once an unofficial currency, is 21 percent higher than in the U.S. and more than five times the figure in Singapore, according to the World Health Organization. Harbor Hall is Michigan's leading alcohol treatment centers and can help with alcohol abuse.

“It’s about restricting availability at high-risk times,” said Anthony Shakeshaft, professor at the National Drug & Alcohol Research Centre at the University of New South Wales. “If you want to change that binge-drinking culture, tightening up on legislation is probably the way to do it.”  The lawyers with Giordano & Stern are carefully watching how this is progressing in Sydney.

Drunken Killers

While research shows most of the lethal punches were thrown at bars or hotels, the random nature of the fatal assault on Kelly fueled concern Sydney’s streets were no longer safe. Not everyone approves of New South Wales Premier Barry O’Farrell’s clampdown, which includes a law introduced last month to increase jail terms for drunken killers.

The 1:30 a.m. lockout, followed by 3 a.m. last orders for customers already inside, penalizes businesses that in some cases were allowed to serve alcohol 24 hours a day, according to the Australian Hotels Association New South Wales. It represents 1,800 bars and other venues across the state.

The restrictions also risk flooding an area of the city stretching from Sydney Harbour Bridge to Kings Cross with thousands of drinkers at the same time, said John Green, a director at the Sydney-based lobby group.

“Rather than people filtering away as the night finishes, there are now two clearly defined conflict points,” said Green, a police officer for 25 years who once led the New South Wales force’s fight against alcohol-related crime. “We are very skeptical.”
The state government says night-time assaults dropped by more than a third after similar restrictions were introduced in 2008 in the city of Newcastle, a two-hour drive north of Sydney.

Penal Colony

Australia’s drinking culture was forged when it became a British penal colony in 1788, said Milton Lewis, author of the 1992 book, “A Rum State: Alcohol and State Policy in Australia, 1788-1988.” Troops overseeing the early settlement became known as the Rum Corps because they stockpiled liquor imports and exchanged the alcohol for goods and labor.

Many convicts and lonely settlers turned to liquor for solace, while laborers in the outback would spend weeks of pay on a binge that could last days, he said.

“You came into town and the first grog shanty you hit, you drank it all away in a week or two, drinking to get drunk and stay drunk,” Lewis said. “It was a frontier society.”

Hawke Revered

Even now, former Prime Minister Bob Hawke is revered by some for his beer-drinking ability after setting a record for the fastest consumption of a yard -- more than a liter -- while studying at the University of Oxford. Last month, the 84-year-old downed a beer without pause in front of cheering fans at an international cricket match in Sydney.

Average alcohol consumption in Australia peaked in 1977, when drinkers got through the equivalent of 13.5 liters of pure alcohol a year, according to the World Health Organization. The average consumption was 10.4 liters in 2010, compared with 8.6 for the U.S., 2 for Singapore and 12.9 for Lithuania -- the most for any country according to data available for that year.

Most adults in Australia say their country has an alcohol problem, according to a 2013 poll by Canberra-based charity Foundation for Alcohol Research and Education. About 4.5 million Australians -- almost 20 percent of the population -- drink to get drunk and most drinkers aged between 18 and 34 have the same aim, according to the poll.

Lost Generation

It’s too late to save the younger generation, said Ralph Kelly, whose family set up the Thomas Kelly Youth Foundation to cut alcohol-related violence after his son’s death. His petition for tougher prison terms, after Thomas’s killer was jailed for a maximum of six years for manslaughter, drew more than 144,000 signatures. The prosecution appealed the sentence, calling it “manifestly inadequate.”

Under laws introduced last month, drink-related killings in New South Wales carry a minimum prison sentence of eight years and terms can stretch to 25 years.

“If the legal system isn’t in sync with what’s happening in the community, then we’ll never get that cultural change,” said Kelly. “It is a generational change to the attitude in drinking and the harms of drinking.”

Less than a kilometer from Kings Cross, Fulde, who has led the emergency team at St Vincent’s Hospital for 30 years, sees the worst of the fallout. The most serious injuries often occur when a person hits the ground after a head punch, he said.

‘Brain Damage’

“Sometimes we don’t know whether they’re going to die or have permanent brain damage or be in a vegetative state,” he said. “There’s every chance that for months they’ll have headaches, concentration failure, and relationship failure because they’ve just changed. It’s horrible.”

Ninety people, including four women, died in Australia between 2000 and 2012 after a single blow to the head, either because of the strike or the impact as they fell, according to a study of coronial data by the journal Drug and Alcohol Dependence.

Kelly says anger and the memory of his son drive him to prevent more deaths.

“It’s grief,” he said. “You just live it every day. You lose a child and it’s something you never want to experience.”


This story first appeared in Bloomberg Businessweek.

A few weeks ago, Democratic Senator Diane Feinstein of California and Republican Senator Tom Coburn of Oklahoma introduced legislation to free the fuel industry from requirements to blend their gasoline with ethanol made from corn. Usually the only proposals to attract bipartisan support in Congress are naming post offices or rushed approvals of poorly designed palliatives in the aftermath of a crisis. In this case, the rarely matched senators are tackling a seriously flawed policy which wastes money, harms the environment, and raises food prices worldwide.

Only a few months ago, their parliamentary peers in the European Union voted to rein in similar biofuel legislation across the Atlantic—only to see those efforts stymied by the agriculture lobby. That makes it all the more important that Feinstein and Coburn succeed.

U.S. legislation in 2007 mandated that a growing quantity of “renewable” biofuels be mixed with gasoline—9 billion gallons in 2008, climbing to 36 billion gallons by 2022. Last year the U.S. Environmental Protection Agency, responsible for implementing the law, demanded fuel companies mix in 14 billion gallons of corn-based ethanol and 2.75 billion gallons of so-called advanced biofuels, which are usually manufactured using scrap wood or corn husks. In the EU, the target legislated in 2009 calls for transportation fuel to be 10 percent biofuels by 2020.

Although ethanol is more expensive to produce than regular gasoline, the biggest problems with the mandates aren’t higher prices at the pump. The biofuels regulations result in higher food prices, and their impact on the environment is at best slightly positive and could be negative. Almost completely because of the EU and U.S. mandates, global ethanol consumption quintupled in the first decade of the 21st century. About 40 percent of the U.S. corn crop goes into ethanol, while in Europe biodiesel consumes two-thirds of oilseed production. Those are crops and cropland that could be used to produce food for human consumption.

The part played by ethanol mandates in the global food price spikes of the last few years is debated. But it’s worth noting that as the U.S. corn ethanol mandate climbed from 4 billion gallons in 2006 to more than 12 billion by 2011, corn prices more than doubled. And rising food prices have a particularly large effect on poor people, who spend a much larger percentage of the small incomes they do have on food. Ethanol mandates have acted as an efficient way to funnel cash from the world’s disadvantaged to its agro industry conglomerates.

In addition to their impact on poverty, the mandates have proven an awful way to help the planet. To produce ethanol you have to farm corn using fertilizers and tractors, then transport the crop and process it into fuel. That all takes energy. And in some cases the land used for farming had been forest that was burned down to cultivate biofuel crops.

Estimates compiled by Kimberly Elliott of the Center for Global Development suggest that the average production method might result in corn ethanol reducing overall emissions by 21 percent compared with gasoline. But in some cases the ethanol takes more energy to produce than it delivers in the engine, raising overall emissions. In Europe, the net savings in carbon emissions from the biofuels mandate vary from 6 percent to negative 12 percent.

As demand for biofuels expands, an increasing proportion—about one-fifth—of European consumption relies on palm oil, much of it grown in Indonesia. Rain forests are being clear-cut there to increase palm oil production. That’s not what backers of this supposedly green fuel had in mind.

Brazil has managed to produce ethanol far more effectively using sugar cane, and the county has achieved a 20 percent mix with gasoline. The environmental impact of advanced biofuels using agricultural waste products in the U.S. and Europe is considerably better. But the problem is that the supply of advanced biofuels has not come close to meeting demand—so much so that fuel producers in the U.S. are paying fines for not using mandated levels of advanced biofuels, amounts the market simply can’t deliver. Funneling the resources being squandered on corn ethanol toward development of advanced biofuels would be a far more effective strategy for the environment and for food security.

In response to these problems, the European Parliament voted in September to cut the 2020 biofuels requirement from 10 percent to 6 percent. The leaders of the EU countries had to agree on how that would be done for the law to come into force last year, and they failed to do so. The legislation will be delayed until 2015. In the U.S., meanwhile, the EPA slightly reduced the 2014 biofuel requirement using emergency powers under existing legislation.

Senators Feinstein and Coburn want to go considerably further and completely abandon the corn ethanol mandate. Especially given the failure of European reform, that not only would be good for American consumers, but good for the global environment and poor people worldwide.

Friday, February 21, 2014


This story first appeared in USA Today.

NEW YORK – A day and a half of prosecution questioning appeared to make few major dents in claims by Bernard Madoff's former operations director that he didn't know about the financier's massive Ponzi scheme and wasn't involved in the crime.

Under cross-examination by Assistant U.S. Attorney Randall Jackson Thursday, Daniel Bonventre acknowledged he had some oversight responsibility for the JPMorgan Chase account that held the flow of millions of dollars clients invested with Madoff.

Bonventre also conceded that he gave another Madoff employee instructions about investing extra cash in the account. And he admitted using a company-paid American Express card to charge tens of thousands of dollars in family vacation trips to the Caribbean and elsewhere, along with non-business restaurant expenses.

But, responding calmly and quietly to the rising incredulity clear in Jackson's voice, Bonventre testified he spotted no signs during his 40-year career with Madoff that his boss was running a scam "right under your nose."

"You never saw anything that raised any red flags?" asked Jackson.

"That's correct," said Bonventre.

The 67-year-old Manhattan resident and four former co-workers are standing trial on charges they knowingly participated in and profited from the fraud Madoff used to steal as much as $20 billion from thousands of average investors, charities, celebrities, financial funds and other victims.
Bonventre's surprise decision to testify in his own defense exposed him to cross-examination, a legal risk because the prosecution questioning could spotlight evidence that raises questions about his innocence claim. But Bonventre so far has not been shaken from his contention that Madoff always had plausible answers for any questions about his investment business.

Bonventre testified he only learned the truth on Dec. 11, 2008, the day Madoff was arrested. The trial is the first criminal proceeding being heard by a jury because Madoff pleaded guilty in 2009 without standing trial. He's now serving a 150-year prison term.

Bonventre's cross-examination is expected to conclude Monday. U.S. District Judge Laura Taylor Swain said closing prosecution and defense arguments in the trial, which began in October, could start around March 3.

Monday, February 17, 2014


This story first appeared in The Florida Times-Union.

Since Wednesday’s closing arguments in the Dunn trial, I have had a number of people remark to me that, compared to others, this trial seemed to go by in a flash. Was six days enough time to spend on the Dunn case? Not in my opinion.
The state presented a very lean case, perhaps too lean. Their primary presentation seemed designed to prove there was a homicide, and to prove Dunn did it. They showed us trajectory rods, we heard graphic details from the medical examiner, we heard audio of the shots fired, they showed us the gun and presented evidence that the shots that killed Jordan Davis came from Dunn’s weapon. None of these details, however, were contested.

What was contested was the notion the Dunn fired his weapon in self-defense. While the state did an admirable job showing the inconsistencies in Dunn’s story (including the devastating testimony from his fiancee, Rhonda Rouer), they never really managed to disprove Dunn’s account beyond a reasonable doubt. It’s fair to say the state poked enough holes in Dunn’s testimony to question whether he’s telling the whole truth. It might even be fair to say that they showed that parts of Dunn’s story are probably lies — especially some of the key details. But that isn’t the threshold they need to meet. Their burden is to show beyond a reasonable doubt that Dunn’s story was absolutely a lie, that he just intended to kill, but did they do that?

Luckily for the state, they may get a guilty verdict without meeting that burden. In making their case, they presented a scenario where Dunn is guilty, and they challenged the defense to disprove it. [Cory] Strolla took the bait. This tactic is called burden shifting. It’s inappropriate, improper, and goes against the spirit of our “innocent until proven guilty” justice system, but can go almost unnoticed unless the defense exposes it and remedies it.

In John Guy’s closing argument he urged the jury several times to use their “common sense,” essentially suggesting that if Dunn seems guilty, they should convict. Rather, for a first degree murder prosecution, they have to convince the jury beyond a reasonable doubt that he decided to become a mass murderer. They didn’t. They didn’t even present evidence that Dunn was angry, frustrated or so incensed that he cared not about the results of his actions. That, when all is said and done, would be second degree murder.

In the defense closing, Strolla should have just as forcefully and repetitively asked the jury whether the State had disproved Dunn’s claims beyond a reasonable doubt. He should have reminded the jury, not just in passing, but in no uncertain terms that the State carried the burden of proof, and he should have shown the jury point by point where the State failed to do their job. As this jury enters their third day of deliberations, I’m not confident they clearly understand the standards they should be applying, and I think it will show in their soon-to-come verdict.

If unraveling a burden shift isn’t complicated enough for the 12 members of the jury, consider this: The state is asking them to return a guilty verdict for first-degree murder. They want the jurors to conclude that, in the few moments before he opened fire, Dunn — who had never shot his weapon in anger for the more than 20 years he’d owned it — decided affirmatively to commit murder. That’s a huge stretch. They’ve overcharged, and while it may be a known tactic in business negotiations to ask for more than you expect to get, it’s a dangerous practice in the justice system, especially when a man’s life is on the line. If Dunn overreacted to a wise-mouthed teenager, without fear for his life, then he’s guilty of second-degree murder, not first, and the confusion this causes may be part of what the jury is wrestling with.

I also think the defense should have presented a better explanation for what Dunn said happened that night, consistent with most of the known facts. Did Jordan Davis raise that tripod as a fake threat to the old guy complaining about the music, not knowing his would be met with a real gun? At the very least, that is what Dunn would say happened. Perhaps reinforcing that explanation may have given the jury the commonsense answer they are searching for.

If the Dunn trial seemed short for a murder trial, and it was, it’s because the state didn’t do all the work they needed to do to meet their full burden, and Strolla let them get away with it. And if the jury deliberations seem to be taking longer than they should, and we’re not quite there yet, it may be because they’re applying difficult standards to confusing charges.

As we await the verdict, we should keep in mind what is inscribed on the Department of Justice Building in Washington, D.C.: “The United States wins its case whenever justice is done one of its citizens in the courts.” Prosecutors are to seek justice, not just convictions.


This story first appeared in USA Today.

JACKSONVILLE — Jurors reviewing the fate of a Florida man charged with killing a teen in a dispute over rap music have recessed for the night.

At 6:50 p.m. Friday, after nearly 22 hours of deliberations, jurors told Circuit Judge Russell Healey that they had "reached a wall" in deliberating over the fate of Michael David Dunn, charged in the Nov. 2012 shooting death of Jordan Davis, 17.

Jurors are expected to return at 9 a.m. Saturday or perhaps a little earlier.

A couple of hours earlier, Healey announced that the jury had a question: Is it possible to not reach a verdict on one count and reach a verdict on other counts?

"The answer to that is yes," Healey said.

Dunn faces charges of first-degree murder, three counts of first-degree attempted murder, and one count of shooting or throwing a deadly missile in the incident. Jurors also can consider lesser charges of second-degree murder, manslaughter, second-degree attempted murder and attempted manslaughter.

If jurors deadlock on a count, for example, Healey said jurors could publish verdicts on the other four counts. A mistrial would be declared on the deadlocked count. Prosecutors could later retry Dunn on that count, at their discretion.

Earlier, when jurors asked for a break and opted to order food in to the courfthouse, Healey said that if jurors got tired,they would be sent to their hotel to resume talks Saturday.

Based on his research, Healey said it appears that jury deliberations can continue on Sunday, if necessary.

"That might be subject to argument from the attorneys, but hopefully we're not going to get to that point. Sounds like they're close. And so, we'll just hope for the best and be in recess until we hear more from the jurors," he said.

Including meal breaks, the jury deliberated about three hours Wednesday and nearly nine hours Thursday and their running total including Friday's talks was 19.5 hours as of early Friday evening.

Shortly after 4:20 p.m. Friday, John Phillips, the lawyer representing the family of Jordan Davis, tweeted that jurors have chosen to eat at the courthouse rather than their hotel and have ordered in dinner.

"It won't be romantic or candle lit, but may be significant of a decision tonight. #JusticeForJordanDavis," Phillips tweeted.

The jury is composed of four white men, four white women, two black women, one Asian female and one Hispanic man.

Dunn, a 47-year-old software engineer, says he feared for his life and was acting in self-defense on Nov. 23, 2012, when he fatally shot Davis in a gas station parking lot.

Dunn testified that music coming from the Dodge Durango where Davis sat with three friends, all black, was "obnoxious," and said he fired 10 shots at the SUV. Davis was hit three times and died a short time later. Dunn faces charges of first-degree murder, three counts of attempted murder and shooting or throwing a deadly missile.

The case has been compared to the racially charged Trayvon Martin case, in which neighborhood watchman George Zimmerman said he killed the Florida teen in self-defense during a February 2012 altercation. Zimmerman was later acquitted of second-degree murder.

Dunn testified in court this week that he felt threatened as Davis hurled insults at him from the SUV. Dunn also testified that Jordan reached down, picked something up and slammed it against a rear passenger door of the Dodge Durango where he sat.

Assistant State Attorney General John Guy said that Davis never was a threat and that a weapon was not found in the Durango.

U.S. Rep. Corrine Brown, D-Jacksonville, accompanied Jordan Davis's mother, Lucy McBath, on Friday at the Duval County Courthouse awaiting the jury's verdict.

McBath is now the national spokeswoman for Moms Demand Action for Gun Sense in America. Last October, she lobbied against stand your ground legislation during a Senate Judiciary subcommittee hearing.

Brown's Washington, D.C., office released a statement calling to revoke Florida's "misused" Stand Your Ground law.

"I would like to wipe it out. But if nothing else, it needs to be narrowly tailored," Brown said during an interview in a courthouse conference room.

Brown said she supports "castle doctrine" legislation that allows homeowners to use firearms against intruders. But she cited the Dunn case, Zimmerman's acquittal, Marissa Alexander's 20-year sentence as evidence that the Sunshine State's law is flawed.

Alexander, who is awaiting a new trial in a stand your ground case, was sentenced for firing what she says was a warning shot to scare off her allegedly abusive husband during a dispute.

Friday afternoon, as deliberations passed the 18-hour mark in Dunn's trial, going past the length of deliberations during Central Florida's Casey Anthony and Zimmerman trials.

Journalists and spectators passed time on the fourth floor of the Duval County Courthouse by chatting, looking at their phones and taking brief walks to stretch their legs. Shortly after 2 p.m., a dozen couples got married on the staircase in the courthouse lobby. The Valentine's Day ceremony attracting dozens of onlookers.