Recent Cases

Marijuana Defense Attorney

Dana Nessel turns a felony into a suppressed misdemeanor. 

Today, at the Hamtramck District Court, Dana Nessel helped another client of Nessel and Kessel Law keep a clean criminal record.  The client was originally charged with Possession with Intent to Deliver Marijuana, a 4 year felony.  Normally cases that start out as felonies are handled at the circuit court level, the court with jurisdiction over all felonies.  However, Dana Nessel, a top marijuana defense attorney, was able to persuade the prosecutor to allow our client not only to plead to a misdemeanor, but also to be sentenced under MCL 333.7411.

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Detroit Defense Attorney Shines at Preliminary Exam

Felony Firearm Charges Dismissed

Thanks to arguments made by Chris Kessel after a preliminary exam, the weapons charges against a client of Nessel and Kessel Law were dismissed by a judge at the 36th District CourtOur client was charges with Carrying a Concealed Weapon (CCW), Felon In Possession of a Firearm (FIP) and Felony Firearm (FF).  These charges often accompany each other because they can all be charged by the commission of one simple act; possessing a gun.  The charges stemmed from an encounter our client had with 3 Detroit Police Officers.

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Detroit Defense Attorney Gets Home Invasion Dismissed

Home Invasion Attorney Gets 20 Year Felony Dismissed

This week, in the Wayne County Circuit Court, Detroit defense attorney Chris Kessel of Nessel & Kessel Law achieved another significant legal victory.  Our client was charged with Home Invasion – First Degree, Unlawfully Driving Away an Automobile (UDAA), and misdemeanor Domestic Violence.  The Home Invasion charge carries a maximum 20 year prison sentence, while the Unlawfully Driving Away an Automobile carries a maximum sentence of 5 years in prison.  Generally, when a defendant is sentenced on two or more crimes at the same time, the sentences will run “concurrent”; meaning that both sentences will be run at the same time.  However, because of the state of the law in Michigan, if a defendant is convicted of Home Invasion and another crime, the sentences will run consecutive; meaning a defendant will have to serve their sentence on the Home Invasion THEN serve their sentence on the other crime.

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Probation Violation Attorney

Probation Violation Dismissed

Sometimes a skilled probation violation attorney is the only thing that keeps you out of jail.  Recently Nessel and Kessel had the pleasure of representing a young man who was alleged to have violated his probation in the Wayne County Circuit Court.  The client originally plead guilty to possession of less than 25 grams of heroin and was sentenced to non-reporting probation.  Unfortunately, during his probation, the client was forced to change probation officers.  As is sometimes the case, the new officer was not familiar with all of the details of the client’s case, and when he didn’t show up didn’t report during the first 2 months of the new probation officer’s term the probation officer issued a warrant for the client’s arrest.  The client, who was unaware that a warrant was issued for his arrest, was later arrested and charged with violating his probation by absconding.

Before holding the probation violation hearing, Chris Kessel was able to obtain a copy of the original court file where it clearly showed that the client was sentenced to non-reporting probation.  Chris was able to explain to the court that the client was under no obligation to report regularly to his probation officer and that it was the fault of the new probation officer, not the client, that the warrant was issued.  When the court saw the original order of probation along with the accompanying documents, the violation was immediately dismissed and the client was continued on his probation, with the court’s apologies. Continue reading “Probation Violation Attorney” »

Gay Mom Turned Down By Supreme Court

Renee Harmon seeks custody of three children she raised with former partner
By Tara Cavanaugh

Originally printed (Issue 1929 – Between The Lines News)

After being turned away from the Michigan Supreme Court, Renee Harmon, a mother who has not seen her three children in two years, will now pursue her case through federal court.

Harmon is seeking custody rights for the children she raised with her former partner, Tammy Davis. Harmon appealed to the Supreme Court for the right to be able to present evidence showing she acted as a parent. The Supreme Court denied her request in a 3-4 decision on July 22.

Under Michigan law, Harmon was never a legally-recognized parent to the children she raised for ten years. Davis and Harmon planned the children together, and Davis bore the children through artificial insemination. Michigan adoption law does not explicitly say that same-sex couples cannot adopt, but many adoption judges have interpreted the law to say so.

Harmon is represented by two lawyers, Nicole Childers and Dana Nessel. Nessel is not surprised that the case was turned away by the state Supreme Court.

“Something we can’t help but notice is that this decision comes on the heels of the new laws that allow marriage in the state of New York,” Nessel said. “While thousands of New York families can now celebrate their newfound rights, Renee’s been mourning the loss of her three children. We see a stark contrast between what other states are doing in moving forward and what Michigan is doing, which is moving backwards at every step.

“We think that’s shameful and we think better of our state than that.”

The three Democratic judges on the state Supreme Court, Justice Michael F. Cavanagh, Justice Diane M. Hathaway and Justice Marilyn J. Kelly, dissented. Justice Kelly authored a scathing dissent of the decision, writing: “Plaintiff’s application raises significant constitutional questions that this Court has not yet considered. Courts across the country are grappling with similar issues… Yet the majority today declines to consider plaintiff’s arguments… This case cries out for a ruling from the state’s highest courts.”

After the ruling, Harmon said she felt “Devastated. Discouraged. But I guess in the back of my mind I knew … there was a very good possibility that (the judges) would follow party lines, and that’s exactly what they did. So I was prepared. But I held out some hope. But I’m also determined to keep going forward.”

Nessel said that LGBT foundations and community centers have been unwilling to support Harmon’s quest for rights to her children. “Any time we have tried to do anything either with Renee’s case, or with other cases that involve same-sex second parent adoption issues, it’s unfortunately our experience and it’s been Renee’s experience that the LGBT groups don’t seem interested in supporting legal causes,” she said.

“Even though it’s our opinion that it’s the best way to change the law in Michigan when you have a legislature that is clearly unsupportive of that.

Harmon plans for a fundraiser to help pay legal fees this fall. To contribute, search for “Harmie’s Army” on Facebook.

A Landmark Gay Custody Battle

by David Ashenfelter
Posted April 17, 2010

In a ruling that could have broad and precedent-setting legal consequences, a Downriver woman cleared the first hurdle Friday in her bid to get joint custody of three children she says she raised with the biological mother.
If the decision stands up on appeal, it would be the first time gays, lesbians and unmarried heterosexuals in Michigan would have legal standing to obtain joint custody.

“This is a historic moment, “ Renee Harmon’s lawyer, Dana Nessel, said Friday as her client’s supporters hugged and cheered Harmon outside Wayne County Circuit Judge Kathleen McCarthy’s court.
“Judge McCarthy’s ruling really ushers us into the 21st Century,” Nessel said.

McCarthy ruled Harmon’s request for parenting time with the children she and her ex-partner of 19 years, Tammy Davis, raised can proceed to a hearing July 21 to determine whether they had an agreement to share custody.”
If an agreement existed, which Harmon’s lawyers said they can easily prove, McCarthy likely will grant joint custody, the lawyers predicted.

Harmon, 48 of Trenton and Davis, 39 of Grosse Ile broke up in 2008. During the relationship, Davis had three children through artificial insemination. Harmon said she helped raise them and, in all respects, was a parent.
After the couple split, Harmon said, she had joint custody for 13 months until last September, when Davis’ new live-in partner told her she could no longer see the children.

Harmon forced her way into her former home, prompting Davis to obtain a personal protection order preventing Harmon from having any contact with Davis or the children.
Davis counters that Harmon was not a parent, the children don’t regard her as such, and that Harmon was abusive and has no legal right to joint custody because she is not their biological mother.
Currently, the only people who can petition for custody are biological parents, or the husband of the biological parents, or the husband of the biological mother if the child was born during their marriage.

Underage Girl Found Stripping at Another Club

Christine MacDonald, Tom Greenwood and Micki Steele
July 14, 2010 (The Detroit News)

Detroit – First, police say she danced as Fantasy. Then, she performed as Sparkle.
Now, the 15-year-old girl is in a juvenile lockup and renewing debate about whether Detroit is doing enough to regulate its topless clubs.

Acting on a tip about an underage performer, police raided Club Onyx on Monday and found that the girl dancing in a yellow bikini is the same one arrested in April for performing at the All Star Lounge.
They were doubly surprised since that club on Eight Mile near Greenfield was padlocked just hours earlier after a judge declared it a nuisance in part because of the April incident, said John Roach, a police spokesman.
Police may be shocked, but opponents and defenders of the clubs aren’t.

The Rev. Marvin Winans of Perfecting Church, who helped persuade the City Council in February to ban lap dances and require licenses for most employees at the clubs, said: “She is not the only one doing this.
“This has become a li! festyle for our young people because they are exposed to it.”
Attorneys for the club are suspicious, accusing the police – or others – of setting the girl up. They say the girl entered the club 15-30 minutes before police arrived and showed the staff a state ID showing she was of age. By law, dancers must be at least 18.
“I just find it hard to believe the same girl who was found dancing at All Star came to another club at Joy and Greenfield and the police are called again,” said Elias Muawad, an attorney for Club Onyx.

“I think she is working with someone … local law enforcement or someone else.”
Roach said the girl, who turned 15 in May, “is not working for us.”

She was taken to the Wayne County Juvenile Detention Facility and could face charges of indecent exposure, child sexually abusive activity or other charges. Charges for the managers are also possible, and prosecutors could move to ask a judge to declare Club Onyx a nuisance and padl! ock it.
Two employees at Club Onyx were arrested during ! the raid , said Dana Nessel, another attorney for the club. But she said prosecutors told her late Tuesday they were not charged and would be released pending an investigation.
Maria Miller, a spokeswoman for Prosecutor Kym Worthy, declined comment.

Acquaintances who know the girl – who lives near All Star Lounge – said her 39-year-old mother tries but can’t control her. Police credited the mother with tracking the girl down at the strip club in April and bringing about the raid.
“She is fast and disrespectful of her mother,” said Tay Giles, 39, who has known the family for about three years. “She would pull a garbage can up to the window and jump out of the house.
“From what I could see, her mother was doing what she was supposed to do … but if you sat down … had a conversation with her, you would know she’s underage because she’s not capable of having a grown-up conversation.”
Court records show prosecutors filed a truancy violation against the gir! l in April, claiming she missed more than 90 days of school.
The girl testified this month she worked at two other strip clubs before All Star hired her – without ever asking for ID – and a girl she went to Northwestern High School with also worked at the club. She claimed she worked at All Star several days a week, and police say she made about $350 a night.

Attorneys for the club say she is lying and used a fake ID. They plan to appeal the padlocking.
Club Onyx is about five miles from the All Star Club.
Marcellus Travers, 33, who regularly visits a relative near the girl’s former house on Avon, said he would often see her walking down the street with a grocery bag in the early morning. She wore skimpy tops and short shirts and appeared to have been dropped off at the corner, he said.

“She’s a very attractive young lady. She’s too fast for 15,” Travers said.

This latest raid came on the eve of a preliminary hearing for Andre Hutson, the! former All Star manager who was ordered Tuesday to stand tria! l on a c harge of child sexually abusive activity for allegedly hiring the girl.
The girl testified against Hutson on Tuesday during the hearing at 36th District Court. He faces up to 20 years if convicted.
Roach said the girl was at Club Onyx “in the capacity of a dancer,” but wouldn’t comment on what she was wearing or whether she was ever topless.

“We categorically deny she was dancing for anybody,” Muawad, the club attorney, said. “There were no customers. It was all the workers. It was a dead night.”

Police said they recently spoke with Club Onyx staff about underage dancers and were working on an agreement with the club on several unrelated violations. Roach said the club has been the scene of one fatal and several nonfatal shootings.
“We were working on an agreement in which they would commit to certain actions, such as making sure it was a 21-years-of-age-and-older only club, that they maintained video surveillance on the premises, and that they ! would provide us access to those kinds of controls,” Roach said.

Nessel said the bar has cooperated with police. She said some isolated problems had occurred in the parking lot, but the club was working closely with law enforcement to solve the problem.
“We requested members of the police department to come in and give lectures (to club staff),” Nessel said. “It’s a legitimate business, and they are trying to work within the balance of the law. They don’t want to cause havoc in the community.”
Tuesday’s incident comes several months after the City Council adopted new restrictions on strip clubs, including bans on VIP rooms. Council members considered, but rejected, requests by Winans and other religious leaders to ban alcohol at the clubs.
Winans said the incident was made possible by “an inept council” and a “very silent mayor and a police force that coddles this type of behavior.”

Custody Battle Heads to Top Mich. Court

By Michelle Garcia
Posted on Advocate.com December 23, 2010

The Michigan supreme court will decide next month whether it will hear a case from a lesbian who is requesting joint custody of her nonbiological children that she and her former partner raised together until September 2009.

Renee Harmon has not seen the three children — 8-year-old twin boys and an 11-year-old girl — she and Tammy Davis raised in 16 months.

“You have not only me, but my mother, grandmother, and brother who haven’t seen the children in 14 months,” Harmon told The Advocate in November. “You have children experiencing a huge loss, like a death. I just worry about them. And hopefully we can change things in Michigan.”

A lower court ruling gave Harmon and her attorneys, Dana Nessel and Nicole Childers, some hope for the future of their case. Nessel said that trial court judge Kathleen McCarthy provided an exhaustive list of examples of state and federal cases where the role of a parent was not always fulfilled by an adoptive guardian or biological mother or father. However, after Davis filed an emergency appeal with the Michigan court of appeals, the court reversed McCarthy’s decision, ordering Harmon’s petition for custody be dismissed.

“I wasn’t surprised that she appealed,” Harmon said. “We expected it. In fact, when the whole process started, we knew we would go to the supreme court level. It’s just discouraging that, as a parent, she’s not thinking of the children.”

“DNA alone does not make a parent,” Nessel said in a statement Thursday. According to the Nessel and Childers, Michigan is one of the few states where the laws are interpreted to prohibit the children of gay and lesbian parents from ever having two parents. Many other states either explicitly sanction adoption for same-sex couples or consider nonbiological parents “de facto” guardians.

In April, Davis’s attorney, David Viar, told The Advocate that his client’s case is not a gay rights case, but simply about a mother protecting her children. Nessel vastly disagrees.

“I think that’s literally the most ridiculous thing,” she said. “As Renee pointed out, if she was a man, she would have been allowed to marry Tammy, she would have been able to legally adopt those children, we would have gone to a regular parental custody trial, and this would have been resolved over a year ago — in fact a couple of years ago. In the state of Michigan, as the law has been interpreted at this point, there’s no law protecting gay and lesbian families. Instead, as interpreted, gay parents and their children have been relegated to status of second class people.”

They are my children, too

by Jessica Carreras
Originally printed 2/25/2010 (Issue 1808 – Between The Lines News)

Trenton mother battles ex-partner for visitation rights to mutually raised children

Renee Harmon of Trenton has one wish this year: to be with her three children again.

As more and more same-sex couples are willing and able to have and adopt children, custody battles have sprung up all over the United States due to a lack of clear legislation on matters of marriage, adoption and what it means to be a “parent.”

In Harmon’s case, it meant being there for each of the births of the children carried by her ex-partner, Tammy Davis. It meant she was an integral part in decisions about their names, schooling, religion and upbringing. She changed diapers, attended parent-teacher conferences and had the kids spend time with their grandmother – all the things a biological parent would do.

But now, Harmon faces the possibility of a life without her kids. Davis refuses to allow her to see them, and in a state with no second-parent adoption, no rights of marriage and no legal standing for non-biological same-sex parents, Harmon’s battle could mean a lot more than just visitation rights. It could, in fact, change the future for Michigan’s LGBT parents.

Harmon’s case is one of many like it garnering attention lately. In Kentucky, a state with no equal rights for same-sex couples, a woman was given visitation rights to children she has no biological connection to – but had raised up until the time of her split from her partner. In Vermont, a mother who has denounced lesbianism and disappeared with her child faces arrest pending failure to show up in court for a case with her ex-partner.

Harmon’s attorneys, Dana Nessel and Nicole Childers, believe the recent rash of court decisions in favor of non-biological parents receiving at least visitation rights could work in their favor.

They’re also hoping to apply the Equitable Parent Doctrine to Harmon’s case, which has four specific conditions used to determine rights for a non-biological parents in opposite-sex couples. “My argument at this point is that our client meets every single one of those conditions,” Childers explained, “if that specific doctrine were equitably construed, meaning take out the gender-specific language and allow any person who can meet those four conditions to be an equitable parent.”

Indeed, Harmon does meet the qualifications as a third-party “de facto parent” – an entity protected by the U.S. Constitution.

“It cannot be disputed that the Plaintiff, Ms. Harmon, meets the definition of a de facto parent to the minor children of the parties,” the case brief states as an argument for her recognition. “She has both publicly and privately held herself out to be just as much as a natural parent to the minor children as the Defendant has.”

In fact, prior to Davis’ refusal to allow Harmon visitation rights, the two had what is known as a “de facto custodial agreement,” meaning that they had reached an understanding that Harmon would spend every other weekend and Wednesday nights with the children, as well as her birthday and several holidays. Davis helped Harmon purchase, paint and move into a condominium and the two remained amicable. “We tried to involve the kids and get them acclimated to the new environment and to show that we were working together, it wasn’t their fault, etc.,” Harmon recalled. “Everything seemed to be going pretty well.”

But in the spring of last year, things began to change. Davis began allowing Harmon less and less visitation time with the children they had raised together. She used time with the kids as leverage to get Harmon to sign off on the deed of the home they had owned together in Grosse Ile, and to put the condo solely in Harmon’s name. Davis continually promised a document guaranteeing Harmon’s visitation rights, but never actually followed through.

Harmon knew something was brewing, and sought legal counsel, only to be told her options were few.

“(The attorney) basically said there wasn’t anything I could do, that I pretty much had to abide by whatever (Davis) suggested because the law wasn’t on my side,” Harmon explained. “So at that point, I knew I didn’t have many options. I tried to maintain as much of a relationship as I could with the kids, because I knew she could take them at any moment.

“And obviously, that’s what happened.”

Harmon has not seen her three children since Sept. 7, 2009, when she was met at the door of her old home by Davis’ new partner, who told Harmon that the children were not hers and that she had no right to see them.

As Davis took the kids out to the school bus for their first day of school, Harmon said what she knew could possibly be her goodbyes. “They walked by me, I came up and said I loved them, they said they loved me and that was the last time I’ve seen them,” Harmon said.

Childers and Nessel aim to change things – not just for Harmon, but for future gay and lesbian Michiganders in the same situation. They realize the hurdles they’ll run into, but have a plan to avoid the argument that parenting rights are reserved only for those who are married.

“There’s going to have to be very specific facts, very specific conditions that must be met for this person to qualify to raise that claim under that equitable parent doctrine,” Childers said, adding that lumping same-sex parents in with other non-biological parents allows them to avoid the “marriage” question. “Based upon what other states have done that do not formally recognize same-sex unions, they have put in place very specific tests and guidelines for a party to have to meet before they can even bring the claim.”

Nessel is confident that given the facts of the case, it will be near impossible to deny that Harmon is a viable parent and deserves to see her kids. “I don’t think there’s anyone who could possibly look at what happened here – I don’t care what your opinion is on gay marriage, or on homosexuality or anything – could ever possibly look at this situation and see Renee Harmon as anything else but a parent to those children,” Nessel said.

Harmon hopes that the judge agrees. The next hearing is March 22 at the Wayne County Circuit Court, and Harmon vows to do everything in her power to be able to see her kids again. “I’m devastated and heartbroken that I haven’t seen my kids,” she said. “It’s hard, but I’m going to do everything I can to get them back. … They’re my children just as much as they are hers.”