Legal Blog

New Expungement Bill Signed

In a rare move by the Michigan Legislature and Governor Snyder, a bill was signed into law today that actually makes like a bit easier for those with a criminal record.  The new bill makes it possible for a person with 2 misdemeanors OR 1 NON-VIOLENT felony to have the convictions removed from their record.

Under the new law, once 5 years from the date of sentencing have passed (or 5 years after any release from incarceration, whichever is later) a person may begin the process for an expungement.  If your criminal record consists of 2 misdemeanors and 1 felony, you can now petition to have the felony expunged.  Further, if a person has 2 misdemeanors on their record, they may now petition to have 1 or both convictions set aside.  The new law also allows for an expungement even for an assaultive crime, which was not permitted before.  It requires that the prosecution notify the victim and that he/she be allowed to be present and speak at the expungement hearing.  There are, of course, certain exceptions for crimes that will not be expunged.  These include convictions involving Criminal Sexual Conduct (though not CSC 4, depending on the circumstances), major drug crimes, human trafficking, and any crimes where the punishment is up to life in prison. 

Everyone knows that having a clean criminal record is key to gaining employment, entering higher education, and even a basic sense of dignity.  If you, a family member, or friend believes they may be eligible for an expungement, contact the attorneys at Nessel and Kessel Law today.

 

Here is a link to a story in the Free Press as well as a link to the new bill.

Use of Force by Law Enforcement

Generally we at Nessel and Kessel Law will refrain from editorializing on our blog.  We find it’s more useful to cite new updates in the law, discuss our own cases, or discuss meaningful cases that are pending cases before the United States Supreme Court.  However, considering the recent developments in Missouri and New York, we feel it’s time to comment.

It should first be said that the majority of law enforcement officers correctly, legally, and properly do their duty.  However, as is always the case, a few spoiled apples will ruin the bunch. 

In the Michael Brown case, the prosecutor who was in charge of presenting the evidence explained to the nation that there was an abundance of conflicting testimony.  He also mentioned that the some of the testimony conflicted with the physical evidence.  He said that based on these two factors, as well as others, that there was no enough evidence to show probable cause that the officer committed a crime.  Now here’s where I (Chris Kessel) get lost…every day in Michigan courts hold preliminary exams.  These are hearings where the prosecutor presents testimony in the hopes that they are able to establish probable cause that a crime was committed and that the defendant committed that crime.  Day after day defense attorneys impeach the credibility of witnesses that are called by the prosecutor.  We (attorneys) are able to show that the testimony of witnesses conflicts with the physical evidence, sometimes in very obvious ways.  When it comes to argument, we will vigorously argue that the only evidence against our client is the “suspect” testimony presented by the state.  We are then told by judges, of all races and ages, “well counselor, the burden of the people is only ‘probable cause’ and the witnesses testified that the defendant did _____.  Even though you pointed out several inconsistencies, that’s a question of fact for the trier of fact…”  Let me be clear, as long as a witness testifies that the defendant did SOMETHING illegal, despite the fact that they have been impeached by the physical evidence as well as their own testimony, the case will be sent to trial because the witness testified to X. 

Now as much as it pains me, the judges are usually correct…but my concern is this: if there is a probable cause when conflicting evidence arises, creating a “question of fact for the trier of fact” Michigan, why does the same standard not apply in Missouri?  

We know less about the unfortunate case of Eric Garner, mostly because the story is so fresh.  But for those that don’t know, Mr. Garner died at the hands of several members of the NYPD.  The entire incident was captured on film.  Yes, the ENTIRE event was filmed.  There is no need for speculation regarding the events in New York, we can see them unfold.  And not just part of the story or a section of events.  We can see the police approach Mr. Garner, try and subdue him, then choke him.  I was not on the grand jury (obviously), but I cannot imagine how there was not probable cause to charge this officer. 

This is not – should not – be about taking out frustration about police misconduct on a few rogue officers.  It’s about justice.  In both of these cases, men died and their killers don’t even have to face a jury of their piers.  That’s not justice.  It’s institutional protection.  Which is a serious problem. 

 

Detroit Attorney Dana Nessel Wins 2014 State Bar of Michigan Champion of Justice Award

Detroit Attorney Dana NesselGaining great ground in the fight for marriage equality inside Michigan courtrooms is certainly amongst attorney Dana Nessel’s most proud professional achievements, and legal leaders across the state are starting to take serious notice.

Last month, Nessel received word from the State Bar of Michigan Board of Commissioners informing her that the legal team behind the landmark DeBoer v. Snyder case was to be honored as recipients of the 2014 Champion of Justice award. According to the organization’s website, only five of these prestigious awards are given each year to practicing attorneys and judges as nominated by the State Bar of Michigan.

The State Bar of Michigan takes into account the following criteria when considering award recipients:

  • Member in good standing of the State Bar of Michigan for at least ten years or more.
  • Strong adherence to the highest principles and traditions of the legal profession with unwavering integrity.
  • Superior professional expertise.
  • Making an outstanding professional achievement that provides benefits to the local, state, or national community in which the lawyer or judge lives.

Nessel along with the other four winners will be honored at a banquet set to be held in Grand Rapids in mid-September 2014. The entire team at Nessel and Kessel Law is very proud of Dana, who has achieved so much not only for our firm but for the greater good of the community as well!

Obtaining a Same-Sex Divorce in Michigan

As the Mark Slackmeyer character once quipped in the Doonesbury comic strip, the reason we need gay marriage is so we can have gay divorce. The unfortunate fact is that some same-sex relationships, even of long duration, do not last. So until recently, without the right to marry, the rights and protections of divorce did not extend to same-sex couples.

While many states have now legalized same-sex marriage and some others now recognize marriages performed in other states and countries, questions are naturally starting to emerge about how this changing patchwork of laws applies to Michigan couples. For instance, if a lesbian couple residing in Michigan wishes to end their marriage, they must go to a jurisdiction that recognizes their marriage in the first place. That still leaves Michigan out, making the process potentially far more difficult and expensive, even when the couple has agreed to all terms.

Making matters more complicated, some states that may be willing to grant a divorce to same-sex couples require the couple to first establish residency there, effectively barring most couples from taking advantage of the law. On top of that, the laws change state by state on seemingly a weekly basis, and the courts are facing a wave of new cases in the near future. A lot remains to be settled.

Nessel and Kessel Law successfully argued the DeBoer v Snyder case before the Michigan Supreme Court, cementing their role as the leader in LGBT rights cases. While the federal and state courts sort out the implications of this landmark case, Nessel and Kessel Law has been exploring options for Michigan residents who wish to end their same-sex marriages performed in other states or countries, without having to travel there or establish residency. If either you or your spouse lives in Michigan and wish to dissolve your marriage, rely on the leadership and experience of Nessel and Kessel Law for guidance in these turbulent times. For the best legal advice and representation, committed to protecting the rights of LGBT couples, contact our law firm today at 313-556-2300.

Same-Sex Couples in Oakland County MI File Adoption Applications

In the days since the landmark decision by U.S. District Judge Bernard Friedman that deemed Michigan’s ban on same-sex marriage unconstitutional, the air of change seems to be blowing in the Mitten state. Although a stay has been placed on the ruling, Governor Rick Snyder has said that the 320 same-sex marriages performed beforehand were legal. Even though this is a small number of LGBT couples in Michigan looking to tie the knot, the couple hundred that are deemed valid still represent major changes.

This is especially true where adoption is concerned, as it now becomes an option for same-sex couples never enjoyed before. While Governor Snyder also said that those marriages carry no rights because of the stay on Judge Friedman’s ruling, the Oakland County adoption office has decided to name caseworkers to LBGT couples who have filed applications to adopt. Just like they do for heterosexual couples, the caseworkers will perform background checks and home evaluations. According to Lauren Howard, chief of the Oakland County office, the fight over adoption will largely be left to the courts. “It’s the judicial branch that determines whether there can be an adoption — a judge determines that,” said Howard.

Reports from the county state that at least five or six other same-sex couples who were married on Saturday have filed adoption applications, but many more are also expected to do so in the upcoming days. Those that choose to submit an application will undoubtedly need legal counsel to act as a guide throughout the complex legal process, and it is always best to opt for a skilled Detroit adoption attorney with experience handling Michigan same-sex adoption cases. Nessel and Kessel Law was the legal team that stood behind April DeBoer and Jayne Rowse in their successful landmark case, and are now ready to help others interested in second-parent adoption. For the best legal advice and legal representation that is committed to protecting the rights of LGBT couples, contact our law firm today at 248-721-0296.

Obama & Fed Allowing Same Sex Marriage in Michigan, State Won’t

Despite a federal appeals court placing a stay on same-sex ceremonies in Michigan, the 300 homosexual couples who married beforehand will be permitted as valid unions. According to the U.S. Attorney General Eric Holder, these same-sex couples “will not be asked to wait for further resolutions by the courts.” Holder also added that Michigan Governor Rick Snyder “has made clear that the marriages that took place on Saturday were lawful and valid when entered into.”

For the time being, couples who married on Saturday in four major Michigan counties (Washtenaw, Oakland, Muskegon, and Ingham) will be allowed the exact same standing federal income and estate tax benefits that heterosexual couples enjoy. Still, a court could reject that standing at some point. While these marriages are legal under the eyes of federal law, state law as still yet to sort out its recognition. Statements from Governor Snyder imply that the state doesn’t intend on extending these rights and benefits to those couples until the legalities of same-sex unions are defined and recognized by state courts in Michigan.

The wave of same-sex couples seeking marriage came on Saturday following a the ruling from U.S. District Judge Bernard Friedman that deemed the state’s ban on these unions unconstitutional. Despite the fact that Michigan Attorney General Bill Schuette filed an appeal and a panel from the U.S. 6th Circuit Court of Appeals stayed the ruling, the state will recognize the 300 marriages performed beforehand.

The experienced Detroit attorney who successfully represented Jayne Rowse and April DeBoer in their challenge of the state’s same-sex marriage ban applauded the federal government’s involvement and pro-marriage stance. Dana Nessel of Nessel and Kessel Law called the support from the Obama Administration “magnificent,” explaining “We expect no less. The federal government has been great. I stand by my previous position that they are all legally married, just like any others.”

Nessel did express criticism for Governor Snyder and the state’s attorney for delaying and fighting against gay-marriage legalization in Michigan. She noted that the governor is particularly contradictory as he recognizes the 300 marriages performed before the stay, but refuses to validate them. “It’s so offensive on a number of levels, particularly on a legal level,” she explained.

After the stay was extended on Tuesday, it is now likely that the case could end up before the U.S. Supreme Court.

Those with questions regarding same-sex marriages in Michigan and second-parent adoptions should contact the knowledgeable legal team at Nessel and Kessel Law. As the law firm that spearheaded the case against the statewide ban, these skilled attorneys will not only best be able to answer any questions but also provide the best representation possible. Contact us today at 313-556-2300 to discuss your case today!

Carrying a Concealed Weapon in a Motor Vehicle

Why am I facing Carrying a Concealed Weapon charges?

Recently a client came to me with a serious question; why am I being charged with Carrying a Concealed Weapon when I was sitting in my car and my gun was on my hip, in its holster?

It’s a completely reasonable question.  The client was sitting in her car when she was approached by an officer.  The officer asked her to exit the vehicle, which she did.  When she got out of the car, the officer saw the holster and gun on her hip and immediately asked if she had a CPL.  The client did not and she was subsequently arrested and charged with CCW (carrying a concealed weapon).  Was the gun legally owned?  Yes.  Was it registered to my client?  Yes.  So why was she charged? 

The answer is equal parts obvious and frustrating.  According to the law, a weapon is “concealed” if it is “not discernible by the ordinary observation of persons casually observing the person carrying it.”  That’s a fancy way of saying that if you can’t easily see where the weapon is, you’re going to get charged.  That means that if a gun is on your hip, in a holster, and you’re sitting in a car, a person talking to you from outside the vehicle probably cannot see the gun…especially if its on the hip that is next to the center console.   The fact that when she exited the vehicle and the weapon was then not concealed didn’t prevent her from being charged for how the weapon “concealed” before she got out of the car, thus she was charged with carrying a concealed weapon.   

When a client retains Nessel and Kessel Law we immediately begin to develop a comprehensive strategy for success.  Sometimes success means convincing the prosecutor to dismiss the charges completely, or have them greatly reduced.  Other times it means a motion to suppress evidence to have the case dismissed by a judge, or fully preparing for trial and securing a not guilty verdict.  Each case and set of facts are different.  Contact Nessel and Kessel Law today and see what success can mean for you.

Michigan Makes Changes to the Adoption Tax Credit

It goes without saying that parenting is a really tough job, regardless of whether one is handling it solo, in a heterosexual relationship, or part of a same sex couple. Not only is the care and protection of children a big enough task, there are plenty of financial questions that come into play as well. This is especially true for parents exploring adoption.

Some Americans are aware that the maximum tax credit for adoptions was raised to $13,190 in 2014, but most aren’t clear on the guidelines that come along with it. In order to qualify for the adoption tax credit, one must have adopted a child and paid the total costs of the adoption. These tax credits vary on an individual basis and are based upon the amount of money one spends on the adoption process. Unfortunately, the adoption tax credit is not available for stepparent adoptions or adult adoptions. On the other hand, those who adopt special needs children are typically eligible to receive the full tax credit.

One’s annual income also plays a role in determining the tax credits available for adoption. If one’s adjusted gross income is equal or less than $197,880, they are eligible for the full tax credit. Those who make more than that amount annually can receive a reduced adoption credit, maxing out at incomes of $237,880. Therefore, those who earn over that amount each year are not eligible for the adoption tax credit.

If you are unsure of whether your family is eligible to receive the tax credit for adoption in Michigan, it is important to explore all of your legal rights. Contacting the experienced and knowledgeable Detroit adoption attorneys at Nessel and Kessel Law will not only give a confusing situation clarity, it will also ensure that all of a client’s rights are protected in front of the law. Don’t wait to explore all of our options, contact our skilled legal team at 313-556-2300 today!

 

Changes to Second Parent Adoptions in Michigan Could Be Coming

The last year has brought great changes to marriage law both in Michigan and across the United States. As the LGBT community inches closer to equal marriage rights, plenty of related questions are also raised; what do same-sex couples do when it comes to adopting children? Can both persons in a homosexual relationship adopt children so that they are both listed as parents? Not yet in the Great Lakes State, but changes could be coming according to the leading Detroit adoption attorneys at Nessel and Kessel Law.

Although Michigan’s Adoption Code does not currently allow same-sex couples to jointly adopt, this law could soon become a thing of the past. Judge Bernard Friedman is set to hear arguments on the future of second-parent adoptions in Michigan, as well as same-sex marriage in federal court later this month in Detroit. The legal team representing the highly publicized DeBoer-Rowse family, Nessel and Kessel Law, have assembled a nationally recognized team of expert witnesses who will testify about issues related to same-sex marriage and LGBT parenting. Should the attorneys prove successful, Judge Friedman could strike down Michigan’s ban on same-sex parent adoptions for homosexual couples. If the ruling is not stayed, these couples could begin adopting children very shortly afterward.

As experienced Michigan adoption lawyers, Nessel and Kessel knows first-hand  that same-sex parents thrive in these households to the same extent they would if in a home headed by married heterosexual partners. The only differences exist thank to Michigan’s Adoption Code and their ban on second-parent adoption. Our legal team looks forward to receiving the rulings in the DeBoer v. Snyder case and to living in a state where every child has the same protections afforded to families with heterosexual couples.

If you or a loved one has been considering second-parent adoption in Michigan, it is essential to be well-informed of all your rights and protections. Contacting an experienced and knowledgeable Detroit adoption lawyer will help clarify the legal process and ensure that every one of the client’s rights are protected. Reach out to the Nessel and Kessel law offices for more information on how we can help you by phoning us at 313-556-2300 today!