What is a Federal Criminal “Complaint”?

I have been charged in Federal Court with a “Complaint”? What does that mean, and what will happen?

Whether you are a first time offender or a career criminal, these questions can cripple any federal defendant. Not knowing the answers to these questions can make it difficult for you to sleep or leave you unable to eat as you worry about what your future might be. All of these are natural responses when you have unanswered questions about pending federal criminal charges.

In this blog, I will address the legal differences between a “Complaint” and an “indictment”. By reading this blog, you will learn what to expect once a Complaint has been filed or dismissed. The answers you get from this blog will eliminate your fear of the unknown—and might help you to sleep better.

            • Complaint versus Indictment. There are two ways criminal charges can be started against a person in federal court: (1) through a grand jury indictment; and, (2) by the filing of a Complaint. A grand jury consists of 16-23 members, or citizens, who hear a presentation of the evidence by the federal prosecutor. If 12 members of the grand jury vote to indict, then criminal charges will start and go forward against the accused.

The second way to initiate federal criminal charges is through a Complaint, which is the focus of this article. A Complaint, according to the Federal Rules of Criminal Procedure, “…is a written statement of the essential facts constituting the offense charged. Except as provided in Rule 4.1, it must be made under oath before a magistrate judge or, if none is reasonably available, before a state or local judicial officer.”

A “Complaint” is a sworn document prepared by the federal prosecutor accusing an individual of a crime. A Complaint contains the factual basis for requesting a warrant or summons in a particular case. The Complaint is supported by an Affidavit executed by a member of law enforcement attesting to the facts necessary to prove each element of a crime. A Complaint streamlines the criminal process by eliminating the need for a grand jury indictment.

It is important to remember that a Complaint can be filed before or after an arrest is made. In some instances, law enforcement may investigate crimes before filing a Complaint. In others, when a crime is interrupted or committed in the presence of law enforcement, an arrest may occur before the filing of a Complaint. For example, consider an arrest of a bank robber in the middle of the robbery. In such a case, the Complaint could be filed after the arrest. Regardless of when the Complaint is filed, it is frequently the instrument for starting the criminal process in federal court.

Every federal criminal prosecution must be based upon a specific federal statute that prohibits the acts you are accused of. A Complaint listing the charges, signed by a Magistrate, is enough to get you into custody, but is not enough for the government to proceed to trial. Within a set period of time (14 days if you are in custody, and 21 days if you are not in custody – Federal Rule of Criminal Procedure 5.1), a Complaint must be supported by either the holding of a preliminary exam, or the government filing an indictment before a grand jury.

The preliminary exam is a hearing, in an open courtroom, with the defense participating. At that hearing, the government must present witnesses giving evidence of probable cause to support the complaint.

However, in the overwhelming majority of cases, after the Complaint is issued, or after the defendant’s first appearance in court, the government goes to a grand jury and gets an Indictment, which formally states the charges. At that point, the Complaint is dismissed. Grand jury proceedings are conducted without the defense present. In a small number of cases, usually because they are not ready to indict the defendant for some reason. the government proceeds with the preliminary examination. In federal court, the preliminary examination is rarely held even if scheduled.

            • What happens now that the Complaint has been filed? Once the prosecutor submits the Complaint, a magistrate judge will review it. The magistrate judge must determine if the Complaint has established probable cause to believe that an offense has been committed and that the defendant committed it. The magistrate judge can authorize or reject the Complaint based on the probable cause standard. If the magistrate judge finds probable cause of a crime, then he or she can issue a warrant for the defendant’s arrest or alternatively, if requested by the prosecution, can issue a summons. In either scenario, the issuance of a warrant or summons from the Complaint, begins the criminal charges against the defendant.

If the Complaint results in the issuance of a warrant, then law enforcement, typically a U.S. Marshall, will execute the warrant by arresting the defendant. If arrested, the defendant is required by law to be taken before a magistrate judge as soon as possible—usually within 24 hours of the arrest. Conversely, if the Complaint leads the magistrate judge to issue a Summons, then the defendant will receive a future time and date to report to the Court.

            • What does the Complaint mean for me? If a Complaint has been filed naming you as a defendant in a federal criminal case, then the most important thing to focus on is the continuation of your freedom. If you are facing a federal felony as a result of the Complaint, then your freedom—both pending trial and in the future—is likely in jeopardy.

 While there are other potential ancillary issues as a result of the criminal charges arising from the Complaint—such as marital and family problems, loss of career, and loss of freedom to travel amongst others—the single most important concern for you going forward is doing whatever is legally necessary to remain free of a lengthy prison sentence.

            • What should I do? If a Complaint has been filed against you, then you likely have been arrested or will be arrested soon. There are things you can do to help yourself even while facing criminal charges. First and more than anything else, you need to hire a competent and experienced federal defense attorney as soon as you become aware of a Complaint or criminal investigation. There is an abundance of attorneys in the world. However, few possess the knowledge, experience, and talent to handle federal criminal cases. If you hire the wrong attorney, then you will regret it—likely when you are setting in a prison cell.

Second and just as important to hiring the right attorney, you have a panel of Constitutional Rights that have been implicated by your arrest. In the early stages of your case following the filing of the Complaint—and before if you know of an investigation–you have a Fifth Amendment Right Against Self-Incrimination. The Right Against Self-Incrimination–or the right to not speak–is one you have and must exercise. Don’t say anything about the circumstances surrounding your case to anybody other than the attorney you hire. Don’t talk to your friends about the case! Don’t’ talk to your family about your case! Don’t talk about your case, Period!

            • Summary: The filing of the Complaint is the beginning of a federal criminal case. If you find yourself as the defendant of a Complaint, then you must take it seriously while recognizing the process is a marathon not a sprint. The challenges you face will test your patience and mental health because your freedom is at risk. Still, there are things I can do to mitigate your situation. If you are the subject of a federal criminal investigation, been arrested, or have been named in a federal Complaint, then don’t wait. Call Mark Satawa today!

Should a defendant’s past conduct be admissible at trial?

The case against actor and comedian Bill Cosby recently brought one of the most controversial issues in criminal law into the forefront of the public’s mind. That is, whether a jury should hear about someone’s past conduct at trial? The Pennsylvania Supreme Court will hear arguments on Tuesday in Cosby’s case, focusing on this very question. As highlighted by this article (Link: http://detroitnews.mi.newsmemory.com/?publink=0d36ccde8) this debate has been central to the high profile prosecutions of Cosby, Harvey Weinstein, and other public figures. Importantly, however, it frequently becomes an issue in the average, run of the mill criminal case.

“Prior acts” evidence, also known as “prior bad acts,” or “404B” evidence, is a central issue in a significant percentage of criminal prosecutions. It is particularly highlighted in allegations of sexual assault, child abuse, and child sex crimes. Prosecutors argue that the evidence is important to show a criminal signature, or a pattern; while defense lawyers counter by pointing out that the evidence is nothing more than character assassination designed to convict a defendant for being a bad person rather than having committed this particular offense.  

By 2017, dozens of women had come forward to say that Cosby had also sexually assaulted them in a manner similar to the initial complaining witness, a Temple University employee. At the first trial, the trial judge allowed just one of these several women to testify about the evidence of this prior act. It ended with a hung jury. At the second trial the following year, the trial judge allowed five other accusers to testify against Cosby that they had also been drugged and sexually assaulted in a manner similar to the initial complaining witness. Not surprisingly, at the second trial, Cosby was famously convicted of the original allegations.

The trend in most states and jurisdictions throughout the country has been to allow prosecutors to expanded the use of these prior bad acts evidence. While this has certainly led to more convictions in sexual assault, child abuse, and child molestation cases, critics argue that it has also caused a substantial increase in false allegations and wrongful convictions. The Pennsylvania Supreme Court will address this important issue. The question becomes will the Court continue to allow the trend towards the free admission of this evidence against defendants or tighten up the rule so that the added evidence must pass a more restrictive test as to the relevance and potential prejudice.

This remains and will continue to remain, one of the most critically important issues in criminal law. Stay tuned, as we watch whether future developments swing the pendulum back in favor of defendants, and thereby strengthen the due process guarantee to a fair trial.

Satawa Law. Defending your rights, and protecting your future.

Mark A. Satawa

SATAWA LAW PLLC

(248) 356-8320

mark@satawalaw.com

www.protectingyourfuture.info

Mark Satawa Represents Ty Garbin in Federal Court

News of six men accused of planning to kidnap Michigan Governor Gretchen Esther Whitmer has been circling news outlets for the past few days. They were allegedly plotting to kidnap Whitmer outside of her northern Michigan vacation home.

One of the accused is Ty Garbin and attorney Mark Satawa of Satawa Law PLLC has been hired by his family to represent him in federal court. Mr. Satawa will be part of the defense team, as they seek pretrial release for Mr. Garbin at his continued detention hearing on Friday, October 16, 2020, before Magistrate Judge Berens.

No Stranger to Conspiracy
Attorney Satawa gained a reputation a few years ago after he and 9 other lawyers were responsible for the defense of the Hutaree. Hutaree is a Michigan militia group who were falsely accused of seditious conspiracy and trying to overthrow the United States government in 2010.

About Satawa Law
Mark Satawa is an accomplished criminal defense attorney who has represented and defended clients who were charged with felony and misdemeanor, but specializes in sex crimes, child abuse, and federal offenses as well.

He was a former Assistant Prosecutor in Wayne County and a Michigan Assistant Attorney General.

Achievements and Recognitions
Attorney Satawa’s defense experience is truly remarkable as it consists of felony jury trials, including 100 capital trials and 50 murder trials. Quite simply, Mark Satawa wins cases.

He has successfully litigated a broad range of criminal cases, including weapons and narcotics offenses, racketeering, drunk driving, telecommunications fraud, tax fraud, robbery, domestic violence, and assaults.

Attorney Satawa is also part of the 2019’s top 10 Client Satisfaction awardees of the AIOCLA (American Institute of Criminal Law Attorneys). This is no small feat as AIOCLA’s rigorous selection process, which is based on client and/or peer nominations, thorough research, and AIOCLA’s independent evaluation.

Domestic Violence cases are all different

Domestic violence cases are different, and in many important ways.

A first time, simple domestic violence case is a misdemeanor punishable in Michigan by up to 93 days in jail and a fine, which is the same penalty of a misdemeanor retail fraud. But they are not retail frauds, and they are not reckless driving. DV cases contain very real and definable consequences that most similarly situated misdemeanors simply do not.

Domestic violence falls into the protected class of politically correct criminal offenses, such as drunk driving and sexual assault. These offenses turn traditional ideas considered critical to the criminal justice system on their head – principles such as being presumed innocent until being proven guilty beyond a reasonable doubt. These protections are thrown out and ignored when charged with a DV – where a defendant may find himself presumed guilty, and be forced to go to court to fight for his/her innocence.

Not all domestic violence cases are created equal. First, we should acknowledge that domestic violence is a real problem. There are true battered women and spouses out there, who are victims of the circle of violence – where they are in an abusive relationship, and they are being abused. Those cases are serious, they are tragic, they are prosecuted, and they are prosecuted for a reason.

On the other side of that coin there are cases that are an overreaction to a heated argument – two spouses yelling at each other and having a difficult evening.  Tempers flare, one (or both) let their temper and their frustration get the better of them, and one of them (or even frequently both of them) call the police and report domestic violence. Then the police arrive, and there is a real problem. Because in nearly every instance where the police are called for domestic violence, they are going to arrest someone.

Domestic Violence – the arrest.

Yes, that is the practical reality in Michigan. A phone call to the police with a complaint for domestic violence will nearly always result in the police arresting someone for DV.  While the police may not admit that, and you may not be able to file a Freedom of Information Act request to obtain an official written policy, for all intents and purposes a phone call to the police with a complaint of domestic violence is going to result in an arrest over 95% of the time. There might be scenarios and situations where there would not be an arrest made, but they are very rare. The police are going to arrest someone, and that is where your problems begin.

First, you are going to spend the night in jail – at least one night. One of the ways that domestic violence cases are different is that most of the time when you are arrested by the police for a misdemeanor, and taken to the police station, you might spend one night in jail. Maybe. The next morning, you will be given an appearance ticket that says you must appear in court within 10 or 14, with the address and phone for the court. Sometimes you will get the appearance ticket and be released immediately, without even spending the night in custody.

However, in domestic violence charges that is typically not the case. While there are no statistics for this, the police will frequently hold someone arrested for DV until they can be arraigned by a judge or magistrate in court.  They do this because they want to insure that a judge or magistrate issues a set of bond conditions, starting with a no contact order. So if you are arrested on a Friday night, you can sometimes be held until Monday morning if there is not a judge available to arraign you on the weekend.

Domestic Violence – Bond conditions

One of the primary ways domestic violence cases are different is the issue of bond conditions. The consequences of a DV arrest can be very difficult and troubling for many people, most importantly professionals and others that must be licensed. 

First and most importantly, nearly every DV base will include a no contact order as a condition of bond – as in over 99% of the time the defendant will be ordered by the judge to have no contact with the complaining witness.  A no contact provision prohibits more than just face to face contact – it means you are not allowed to have any contact with your spouse or significant other. No phone calls. No texting. No emails. No nothing. In fact, it will include the restriction that you cannot even return home. The judge may allow you to return with the police to quickly pack some personal essentials, but not always.  

But it does not stop with a no contact order. The other bond conditions frequently seen with domestic violence charges are more serious and more rigid than other misdemeanors. You will be prohibited from possessing or owning a gun.  If you own guns, the court will order that they must be removed from your house. While that is an issue if you are a hunter or sportsman, it is a real problem if you are a police officer, a security guard, or anyone else that has to carry a gun as part of your employment.

Most police officers, prosecutors, judges, and courts, believe that domestic violence cases typically occur in the context of drinking alcohol. This belief is prevalent enough that alcohol will nearly always be another condition of bond. So even if there is no allegation of drinking in the police report, and no evidence that you were drunk when the police showed up to arrest you, bond conditions will frequently include a provision that you cannot drink alcohol, must attend AA meetings twice a week (or more), and even require alcohol and drug testing such as random PBT’s.

Domestic Violence: misdemeanor vs. felony

Simple domestic violence in Michigan is a 93 day misdemeanor. Aggravated domestic violence in Michigan is a one year misdemeanor. Aggravated domestic violence is defined as the victim having suffered serious physical injury. The standard focuses on whether the person needed immediate medical attention, and not whether they actually got immediate medical attention.  

So simple domestic violence is 93 day misdemeanor, and aggravated domestic violence is a one year misdemeanor. The second simple domestic violence becomes a one year misdemeanor, with a one year potential jail sentence. The third domestic violence becomes a felony, with a maximum punishment of five years in prison.  The second aggravated domestic violence is a felony, also with a possible penalty of five years in prison.

It may start small, as just a misdemeanor and therefore not very serious in the minds of many. But it can quickly mushroom from there, and become far more serious.

Domestic Violence – can the case be dismissed?

Most everyone has heard that in domestic violence cases the prosecutor will go forward with the case, and refuse to dismiss it, even when the complaining witness wants the case dropped and dismissed. Unfortunately, this is one of those times where the rumors are more fact than fiction.

It is very common in DV cases for the complaining witness to ask the prosecutor to dismiss the case and drop the charges.  I have had many cases where the complainant has sat down with the prosecutor and said: “look, this was an argument that got out of control. Yes, I called the police, but I should have. That was a mistake. I do not want the case to go forward. I want my husband/boyfriend to be able to return home. I do not want a no contact order. I want to drop the charges.” More often than not, both judges and prosecutors will refuse to amend the bond conditions, or even discuss dismissing the case and dropping the charges.

So, what happens when the complaining witness tells the prosecutor “I want the case dismissed, I do not want the case to go forward”?  The answer begins with the understanding of the difference in civil cases vs. criminal cases. In a civil case both are parties to the lawsuit – it is the plaintiff (the alleged victim) vs. the defendant. But if the alleged victim calls the police and a criminal charged is issued by the prosecutor, the prosecutor is the party representing the plaintiff, who is the “people of the state of Michigan.” The alleged victim is not a party in a criminal case, so the case can go forward even over their objection. 

In fact, the alleged victim is just a witness for the party that brings the charges. So, the prosecutor will take a hard look at the case to determine if they can prove the case without that witness, without the alleged victim’s cooperation. It is fairly common for domestic violence cases to go to trial where the victim is not a witness for the prosecution; in fact, the victim will frequently be a witness for the defense.

But first the prosecutor is going to put the complaining witness in a very difficult position. The prosecutor will put a lot of pressure on the complainant to cooperate with the case and not drop it; most prosecutor’s offices have victim’s advocates to talk to the complainant about the circle of violence: “maybe you forgive them now, but they are going to be back tomorrow and assault you again. Do not let them do this to you.” If that does not work, the prosecutor will likely confront the complainant, by saying “did you make a false police report? If you get on the witness stand and say the defendant did not do anything then we might come after you.” The prosecutor will even threaten to charge the complaining witness with perjury, filing a false police report, or even obstruction of justice. Many times, it will become necessary to get a lawyer for the complainant to protect his or her rights.

Assuming all of threats and pressure does not work, and the complaining witness unwilling to cooperate, and still refuses to testify, how does the case go forward? The first place the prosecutor will look is the 911 tape. If the 911 tape simply says, “please come to my house, there’s been a domestic violence,” that is probably not helpful enough for the prosecutor to prove the case beyond a reasonable doubt. But if there is an extended 911 call, like “my husband is beating me right now, he just hit me in the mouth,” and when the police show up they see the complainant bleeding from the mouth, then the prosecution will go forward with that case.  Can the police make out the case through the observation of injuries? Was there an excited utterance, where the complainant screams to the police officers “he just punched in the eye,” which is a legal exception to the rule against hearsay? Were there any independent witnesses, like the couple’s 16-year-old son, or a neighbor?

The bottom line is if the prosecution and the police can construct a case against the defendant that does not require the complaining witness’s cooperation, then they are going to try and do that.

Domestic Violence convictions and the right to possess a gun.

A first-time domestic violence is a simple misdemeanor, and in the run of the mill misdemeanor case a conviction will not effect your 2nd Amendment right to possess a gun. But once again, domestic violence cases are different. They are special and unique, because unlike almost every other misdemeanor they restrict your ability to own and possess a firearm. Federal law legislates that a felony conviction makes you ineligible to own and possess a firearm. However, under both federal and Michigan law, a misdemeanor conviction for domestic violence carries the same restriction against possessing a firearm.

Domestic violence – the 769.4a plea offer.

Domestic violence is a crime that can be enhanced. So, while a first time domestic violence is a misdemeanor, a 3rd simple domestic violence (or a 2nd aggravated domestic violence) is a felony in Michigan. As a result, there are important issues to consider when facing your first DV charge.

In Michigan there is a statute that authorizes first time domestic violence defendants to be offered a deferment program, authorized by statute in MCL 769.4a.  Under this deferred sentencing program, a first time offender can be given a special form of probation for anywhere from 12 to 24 months, wherein if the defendant satisfies all of their terms and conditions, the case is dismissed and they do not have a criminal record.  Those terms and conditions frequently include completion of batterers counseling, anger management therapy, community service, pay a fine, and attend a victims’ impact panel

Some cases, and some defendants, are properly resolved under 769.4a.  If the defendant is a person who is not likely to re-offend, and will successfully complete probation, then it might be a good option. However, it is not a cure all. For example, while 769.4a may make you eligible under Michigan law to own and possess a firearm, it may not under federal law. There are multiple cases of the Feds denying a federal Brady background check for a person with a dismissal under 769.4a. It can be very hit or miss.

A bigger problem is a second or subsequent DV charge. Frequently, a first domestic violence charge could be one that is defendable. But the defendant thinks “I have this opportunity to plead guilty under this deferred sentencing program that allows me to just wash my hands with this and be done, and I will not even have a criminal record. Why wouldn’t I do that?”  The short answer is that this will still count as your first conviction.

No, it is not really gone. The police know about it, prosecutors know about it, and courts know about it. The next time that person is arrested, they are subject to being charged with a second offense, and the time after that they are likely facing a felony. So, taking a plea under 769.4a concedes a ton of power to your spouse/significant other, and to law enforcement, because you do not have the protection of 769.4a the next time you are arrested. 

Many times, the first domestic violence charge is a weak case. That is why the prosecution signs off on 769.4a, and the court grants it, to begin with. The complainant did not have any visible injuries, there was no excited utterance, there was not a helpful 911 call, and there were no independent witnesses. The complainant wants the case dismissed, so the prosecution offers 769.4a.  The problem becomes the next time you are arrested, what happens if it is a much more difficult case to defend and fight at trial. Now there is a 911 call, independent witnesses, and physical injuries. 769.4a was used on the first case, so now it is gone. The case you should have fought and defended was the first one, but now it is too late. But the defendant pled guilty because his public defender or retained lawyer told him to just take 769.4a. The defendant did not want to hire a lawyer, or hired a lawyer but did not want to spend a lot of money to go to trial.

The moral of the story is very simple:  acquittals, not guilties, and dismissals are always better that 769.4a.

Domestic Violence and PPO’s.

Restraining orders, commonly called personal protection orders, or PPO’s, in Michigan, are commonly tied together with domestic violence charges.

Frequently, victims of domestic violence are counseled by prosecutors and victim advocates to get a PPO against the defendant. They send the complainant to the circuit court, where there are simple forms to fill out to apply (or petition) for a PPO. All the complainant has to do is literally review the boxes, check which boxes apply to you, and then sign your name and then that Petition goes to the judge and the judge decides whether or not to enter an Ex Parte PPO. Ex Parte means one sided, so the PPO gets entered against the respondent without even a hearing.

Much like domestic violence prosecutions, a PPO (even an Ex Parte PPO) makes it illegal for the respondent to own or possess a firearm. A PPO can also prevent the respondent from having contact with the petitioner, from being able to go to certain places where the complainant lives, works, or frequents (such as health clubs or restaurants). 

PPO’s are yet another complicating factor in the respondent’s life, and it is sometimes difficult to understand the impact that they can have. They are not a criminal charge, but they are sometimes referred to as quasi criminal. It is important to understand that just because it is not criminal, does not mean that it is not important. PPO’s can really effect even ruin people’s lives, depending on the circumstances of the case.

Satawa Law. We remain committed to Defending your Rights, and Protecting your Future.

Mark A. Satawa

SATAWA LAW PLLC

248-356-8320

mark@satawalaw.com

www.protectingyourfuture.info

Satawa Law. Defending your rights, protecting your future.

Covid-19 and Federal Compassionate Release

With the COVID-19 pandemic spreading throughout the country, and certainly within our jails in prisons, one of the questions at the top of many minds is whether or not a federal inmate in the BOP can get relief on his sentence under the compassionate release statute and the First Step Act because of the coronavirus. The short answer is yes, maybe, but there are several specific and unique factors to consider in each individual case.

Traditionally and for years, a federal criminal sentence could only be amended in one of two ways. The first way was through Federal Rule of Criminal Procedure 35, which allowed the government to go back into court and make a motion to reduce a defendant’s sentence for things like substantial assistance in the cooperation and the prosecution of others.

The second way was for a compassionate release under 18 USC 3582(c).   Until recently, this avenue was largely closed off because the statute gave the Bureau of Prisons (BOP) sole and complete discretion to decide whether a prisoner should be granted compassionate release. That changed in 2018 with the passage of the First Step Act by Congress, which vested authority in federal judges to make this determination, but only under certain circumstances.

The main issue and barrier to a motion for compassionate release being heard in court on its merits and possibly granted is the requirement that the prisoner must exhaust administrative remedies. What some courts interpret that to mean is that the prisoner must ask the BOP to make the request for compassionate release to their sentencing judge on their behalf, and give the BOP a minimum of 30 days to respond to that request. It is only after that request is made, and the BOP fails to act on the prisoners behalf, is the prisoner entitled to file a motion before his sentencing judge for compassionate release.

The issue currently facing federal judges throughout the country is whether or not this 30 day time period is jurisdictional. In legal terms, a jurisdictional requirement means that a court cannot waive it under any circumstances. In other words, if the 30 day requirement is jurisdictional, then in every situation the prisoner must make the proper request to the BOP, and wait a minimum of 30 days, otherwise the court would not have jurisdiction to hear that prisoner’s motion for compassionate release. If the 30 days is not jurisdictional however, that means a court can waive it, and under certain circumstances the prisoner can file a motion for compassionate release immediately.

Courts have ruled both ways on this issue. Certainly, most courts have ruled that the 30 days is jurisdictional, and that courts may not review a motion for compassionate release before the administrative procedures in the BOP are followed. However, some courts in Michigan, New York, and elsewhere have ruled to the contrary, stating that the 30 days is not jurisdictional, and that motions for compassionate release can be heard immediately.

This issue is obviously of paramount importance in the middle of the COVID-19 pandemic. With COVID-19 spreading as quickly and aggressively as it is in our community, let alone inside of prisons, 30 days is an eternity. Most inmates that are diagnosed with COVID-19 and develop serious symptoms need medical attention within 72 hours, not in 30 days. Inmates with serious health problems that put them in the high risk category if they contract COVID-19 need immediate isolation and quarantine from the general prison population, not release in 30 days.

The Third Circuit United States Court of Appeals just ruled that the 30 days is jurisdictional, and that prisoners must apply to the BOP for compassionate release and wait at least 30 days before they can file a motion in court. The defendant in that case has filed a request for en banc review by the entire circuit, meaning all of the judges, so events are sure to be happening daily.

In the meantime, what would increase a prisoner’s chance of success on a compassionate release motion on the merits? The first issue is going to be the nature of the underlying conviction. Offenses that are non-violent, did not involve weapons, and were not assaultive will stand a much higher chance of success. Likewise a sentence with a shorter time period remaining to be served, particularly those where at least half of the sentence has been completed, will also increase a prisoner’s chances. Finally, the prisoners age (particularly if they are over 70), and serious health problems will be important factors, particularly in the current COVID-19 pandemic atmosphere.

As discussed previously, this is an ever changing and fast developing area of the law. Do not guess about the future of a loved one. Contact an experienced attorney before making any decisions or choosing any course of action.

Satawa Law. Defending your rights, protecting your future.

Mark A. Satawa

SATAWA LAW PLLC

248-356-8320

mark@satawalaw.com

www.protectingyourfuture.info

“An accused student’s rights must be guaranteed.” The latest on Title IX Hearings in Michigan

“An accused student’s rights must be guaranteed — not left open for interpretation. . . . Imposing a suspension, prior to a hearing and adjudication is unconstitutional.” John Doe v University of Michigan, et al, Case No. 18-11776, March 23, 2020.

That does not appear to be a sweeping or controversial statement – at least it shouldn’t be. But unfortunately in 2020, with the current environment on campuses everywhere, a federal judge must write an opinion that reminds college administrators of this basic premise – one central to the entire legal system throughout this country. Everywhere apparently except campus Title IX sexual misconduct cases.

Michigan is blessed with an abundance of excellent colleges and universities, starting with the University of Michigan and Michigan State. But U of M and MSU seem determined to set the tone for higher education in this state on yet one more field – who can trample more on the due process rights of students charged with sexual misconduct under Title IX.

In the latest development, a federal judge issued an opinion and order declaring a university’s Tile IX sexual assault policy unconstitutional. Again. This time it was U of M’s turn.

John Doe was a graduate student at U of M. He watched movies with a fellow student in his dorm room, and then they had sex. Shortly afterwards, he was accused of sexual misconduct. Doe denied sexually assaulting her, claiming the sex was consensual.  There were no witnesses other than the two parties. In other words, a classic Title IX sexual misconduct case.

U of M froze his undergraduate degree and academic transcript after the charge.  At that time, U of M’s policy dictated that a single investigator met with each student separately, did interviews, wrote a report and made recommendations. The students had a chance to review interviews and reports and make suggestions, but couldn’t ask direct questions of each other. The hearing process was halted by Doe’s lawsuit, filed in June 2018.

In September 2018, the Sixth Circuit Court of Appeals issued the landmark decision in Doe v. Baum, requiring a live hearing with the opportunity for questioning by the parties when a case involves issues of credibility.  In June 2019, U of M adopted an interim policy, requiring hearings “when warranted.”

Judge Tarnow was unconvinced that the changes were constitutionally sufficient, writing that “Defendants’ 2018 Policy is unconstitutional. The possibility of a pre-hearing suspension under Defendants’ 2019 Policy is also unconstitutional.” The key element is that the policy must guarantee a hearing with basic due process protections.

Judge Tarnow reasoned that the policy of when a hearing would be allowed, “when [it is] warranted,” was “vague” and required “further explanation.” The constitution requires that:

An accused student’s rights must be guaranteed — not left open for interpretation. Imposing a suspension, prior to a hearing and adjudication is unconstitutional … the Interim Policy allows the University to impose serious interim sanctions without a hearing. These sanctions can be imposed after a complaint is filed, but before any determination of responsibility has been made.

Judge Tarnow was particularly critical of U of M President Mark Schlissel and his public statements following the Baum decision that, “the Sixth Circuit got it wrong,” and that U of M’s “prior method of adjudicating sexual misconduct cases was the best way to determine the truth.” 

Wake up Mark, and all Michigan colleges and universities. We get it, students making accusations of sexual assault are entitled to be treated with dignity and respect. But what you clearly don’t get is that the accused is also entitled to the same treatment, and it does not give you carte blanch to trample on the due process of an accuse student.

This is an area of law that is constantly changing, sometimes by the week. If you have questions about Tile IX misconduct hearings, don’t guess, and don’t take chances. Call the experts at Satawa Law today. www.protectingyourfuture.info.

PRESS RELEASE

Mark A. Satawa Has Been Nominated and Accepted as a 2019 AIOCLA’s
10 Best in Michigan For Client Satisfaction

The American Institute of Criminal Law Attorneys has recognized the exceptional performance of Michigan’s Criminal Law Attorney Mark A. Satawa as 2019 10 Best Criminal Law Attorneys for Client Satisfaction.


The American Institute of Criminal Law Attorneys is a third-party attorney rating organization that publishes an annual list of the Top 10 Criminal Law attorneys in each state. Attorneys who are selected to the “10 Best” list must pass AIOCLA’s rigorous selection process, which is based on client and/or peer nominations, thorough research, and AIOCLA’s independent evaluation. AIOCLA’s annual list was created to be used as a resource for clients during the attorney selection process.


One of the most significant aspects of the selection process involves attorneys’ relationships and reputation among his or her clients. As clients should be an attorney’s top priority, AIOCLA places the utmost emphasis on selecting lawyers who have achieved significant success in the field of Criminal Law without sacrificing the service and support they provide. Selection criteria therefore focus on attorneys who demonstrate the highest standards of Client Satisfaction.


We congratulate Mark A. Satawa on this achievement and we are honored to have him as a 2019 AIOCLA Member.
You can contact Mark A. Satawa directly at 248-356-8320 or http://www.protectingyourfuture.info.

WHEN TITLE IX AND TITLE IX REFORM GOES AWRY

Link:    http://freep.mi.newsmemory.com/?publink=01db1d8aa

Everyone should be clear about what Title IX disciplinary hearings are about. The typical Title IX case is one student accusing a fellow student of a “date rape” type sexual assault, following a date, or a night of drinking at the bar. They are NOT about Larry Nassar.

Let’s make this clear – Nassar was a monster. I like Elisa Slotkin, and I am not a big fan of Education Secretary DeVoss. But the reforms DeVoss introduced to bring Title IX hearings back under control are a huge step in the right direction – a common sense effort to ensuring a fair hearing and respectful treatment to both sides, accuser and accused, before someone is kicked out of school or off campus.

Under the rules prior to these reforms, the accused was frequently denied basic due process at most colleges and universities. They could not be represented by counsel, confront the accuser, ask her questions, or even be in the same room. The Sixth Circuit Court of Appeals has ruled in multiple cases over the past several months that colleges must protect the due process of their students in these hearings, by allowing basic rights such as cross-examination.  These changes are long overdue, serve an important check against false accusations, and prevent innocent students from being suspended or expelled. Secretary DeVoss’ reforms mostly codify these rulings.

Rep. Slotkin proposed legislation last week that would prevent the Education Department from implementing the proposed rule changes to Title IX, claiming that these changes could impact victims of Nassar by shielding Michigan State from liability or allowing the university to ignore certain claims.

The Nassar case, and those like it at Ohio State and Penn State, make up a minute fraction of what Title IX does. MSU continues to face numerous law suits for its role in Nassar’s transgressions. However, Title IX is not shielding MSU, or Larry Nassar, from being held accountable to these victims Instead, Rep. Slotkin’s bills would hurt the 19 year old college sophomore, falsely accused of sexual assault, facing expulsion from school for allegedly sexually assaulting a girl he met at the bar one night.

Satawa Law: www.protectingyourfuture.info

Do people confess to crimes they don’t commit?

Do people confess to crimes they don’t commit? The age old question in criminal law. It seems so difficult to believe. Why would anyone admit to doing something they didn’t do? Particularly something as awful as sexual assault, child abuse, shaken baby, murder, or molesting a child. We all want to think – if I was ever charged with something like that, and I didn’t do it, I would SCREAM “I’m innocent!” I would never confess to it. But there is overwhelming and undeniable evidence to the contrary, in the form of case studies, statistics, data, and DNA exonerations by Innocence Projects throughout the country. Quite simply, people do confess to crimes they didn’t commit. And they have for centuries. For all kinds of reasons. Just remember, scores of Puritans in Massachusetts confessed to being a witch who spoke with Satan — were they really possessed by the anti-Christ? Or did they do it to avoid being hung from a tree? Read more

Satawa Law. Defending your rights, and protecting your future.

Michigan Supreme Court deals shaken baby syndrome yet another blow

There is good news out of the Michigan Supreme Court, as it ruled last month that it was error to deny a defendant expert assistance for her post-conviction motion arguing ineffective assistance of and for a Ginther hearing. People v Ulp, SCt Case No. 15980 (9/25/19), http://publicdocs.courts.mi.gov/SCT/PUBLIC/ORDERS/159080_116_01.pdf.  This was a medically complex SBS/AHT case, with a 14 month old child, with developmental delays and a drug addicted mother. The trial attorney did not get a number of important medical records and had no expert witnesses. Click on the attached to read the opinion and order.

The tide has really began to turn for these cases in Michigan. Finally. It has become very clear that our Supreme Court has very little tolerance for shaken baby syndrome/abusive head trauma cases, particularly those litigated by the defense without the assistance of experts.

Satawa Law. Defending your rights. www.protectingyourfuture.info.

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