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In The News: Priest-Penitent Case Headed for Appeal

 Reprinted From The Michigan Lawyer

A criminal case that could test 1,500 years of priest-penitent privilege could be headed toward the Michigan Court of Appeals.

Farmington Hills attorney Raymond Cassar said on May 25, 3rd Circuit Court Judge Cynthia Gray Hathaway made a good call when she said she wouldn’t mess with the age-old tradition, and law, that protects confidentiality between pastors and members of their flocks.

Cassar’s client, Samuel Bragg, now 18 years old, is accused of molesting a family member when he was 15 and the girl was 10 years old. In October 2009, the girl told the pastor at her church, where Bragg and his mother are also members, about the alleged molestation. Read Michigan Lawyers Weekly‘s story here. (Subscription required for full access.)

The pastor called Bragg and Bragg’s mother into his office to discuss what the girl had said. And according to Cassar, the pastor said that after lengthy questioning in the church office, Bragg confessed (though Bragg contends he never did). Later, the pastor, the Rev. John Vaprezsan, voluntarily gave police a one-page written statement to that effect.

At Bragg’s preliminary examination, 34th Wayne County District Court Judge Brian Oakley permitted Vaprezsan to testify, despite Cassar’s argument that MCL 600.2156 and MCL 767.5(a)2 clearly protects clergy-penitent communication as privileged and confidential.

Motions were due on May 18, and were argued Wednesday in front of Hathaway.

After Hathaway said she wouldn’t allow Vaprezsan to testify, Cassar said he was told by assistant prosecuting attorney Angela M. Povilaitis that it is her intent to to appeal at Michigan Court of Appeals. The Wayne County Prosecutor’s Office declined comment.

“Judge Hathaway said in court that it was obvious what my client was [in the pastor’s office] to do. He was there to seek counsel from his pastor,” Cassar said. “And she wasn’t about to interfere with that privilege.”

Reprinted from an article about our firm that appeared on The Michigan Lawyer Blog as reported in The Michigan Lawyers Weekly.

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Roethlisberger follow up….

Well, despite “Big Ben’s” (Roethlisberger’s nickname in NFL circles) getting lawyered up with a famous Atlanta attorney, Ed Garland who is known for representing Ray Lewis in the shooting in 2000 and the rapper TI, mistakes were already made prior.  Reports have come out that confirmed that Roethlisberger volunteered information to the police on the night of the alleged incident on March 5th.

The thought process for Roethlisberger must have been that he was being accused of something he did not do, forcible rape, and therefore he told police the truth as he saw it: no sexual intercourse happened.  HOWEVER, what Big Ben failed to understand is something that most people fail to understand: sexual assault does NOT always mean forcible rape.  In lay people’s terms, sexual assault seems to always be tought of as rape.  The harsh reality is that sexual assault allegations are MUCH MUCH broader than forcible sexual penetration.  “Simple” touching or contact can very well enable prosecutor’s offices to charge sexual assault, and few people out there may realize that.

In MI, Criminal Sexual Conduct in the 2nd degree is simply satisfied with a touching for sexual gratification.  Those are very broad terms, and one, whether a lawyer or not, can easily picture situations where the argument can be made the sexual contact/touching/brushing was done for “sexual gratification.”  Unfortunately, few people realize that concept, and it appears that Ben Roethlisberger may have made that mistake.  Depending on what statements he made to the police, he may have well incriminated himself despite proclaiming his innocence from forcible sexual intercourse.

Attorney Raymond Cassar is a Detroit Area Criminal Defense attorney who has twenty years of experience in State & Federal Court. His office is happy to give advice regarding criminal matters. You may learn more about Attorney Raymond Cassar and his team of attorneys by visiting his website at:  http://www.crimlawattorney.com .

CBS producer pleads guilty to a lesser offense in extortion case against Letterman

On March 9th, 2010, Robert “Joe” Halderman, a former CBS television producer, pleaded guilty to attempted grand larceny, acknowledging he attempted to fraudulently obtain $2 million from the late-night host David Letterman. He threatened to destroy Letterman’s reputation by airing his workplace transgressions – using information authorities have said he acquired from a former girlfriend’s diary.

The plea deal by Halderman spares him a potential 15 years in prison had he been convicted at a trial. The 52-year-old is due instead to get a six-month jail sentence and 1,000 hours of community service. Under this plea agreement, Halderman must turnover to the prosecutors all copies of any diary entries, photos, screenplay notes or other materials he has concerning Letterman and must agree to a full proof confidentiality agreement to never disclose such private information.

As part of the plea deal, Halderman had to apologize to Letterman.  Furthermore, while reading from his prepared statement to the court, the judge had to ask him to slow down for the court to be able to properly understand his statement. Halderman was struggling financially after a messy divorce, and that played a large part in his ploy against Letterman to gain some financial credibility.

Attorney Raymond Cassar is a well known Detroit Area Criminal Defense attorney who has over twenty years of experience in State & Federal Court.  His office is happy to give advice regarding criminal matters. You may learn more about Attorney Raymond Cassar by visiting his website at:  http://www.crimlawattorney.com .

Ben Roethlisberger’s sexual assault allegations and the smart way to handle.

Recently, another shocking new development ensued in the life of the $102 million QB of the Pittsburgh Steelers.  The proud franchise with its 7 Super Bowl wins and the tradition and pride that it has established throughout the Rooney family ownership is seeing its reputation affected through allegations faced by its Super Bowl MVP quarterback Ben Roethlisberger. This is the second such allegation against Roethlisberger in two years.  The first was not pursued by Lake Tahoe police, but it resulted in a civil suit against Roethlisberger. 

On March 7th, it is alleged that after a night of partying in a college bar in Georgia, Roethlisberger sexually assaulted a 20 year college woman.  This type of allegations are very serious, and generally speaking when something like this hits the press in relation to a professional public figure it usually alleges a crime of violence such as forcible intercourse or something just sort of that.  Of course, it is just as likely that nothing happened, and ulterior motives are inspiring the allegations.  However, once such allegations of sexual assault make it to the police, a serious and potentially life altering investigations begins, and the Roethlisberger matter is just that. Perhaps worse, due to the harsh “court of public opinion,” despite the Constitutional protections, Roethlisberger faces an uphill battle of clearing his name and defending his life and reputation.

At this point in time, Roethlisberger and his team of attorneys are handling such allegations the right way.  Whenever such allegations are put forth, the police will be investigating and they will focus their investigations in two aspects.  First, they will attempt to gather evidence of the complainant’s demeanor shortly after the alleged crime, whether there is any evidence, physical or verbal from other corroborating witnesses, that she/he was indeed sexually assaulted.  Second, the police always attempt to give the accused an “opportunity to explain himself/herself.”  This is nothing more than an attempt to obtain a confession.  Seldom if ever will an accused go to the police, make a statement without the consultation and presence of an attorney, and get himself/herself out of whatever allegations were thrown at him/her.  By hiring an attorney, the accused is assuring that the police attempted contact with him/her will always be screened by his/her attorney, and therefore the possibility of making incriminating statements is greatly diminished.

Roethlisberger is doing the right thing.  He has hired an attorney and is making no statements.  While the press is reporting that he is cooperating with the police, what is truly taking place is that the attorney is handling the investigation phase of this criminal matter.  The attorney is the one who is making contact with the police, he is attempting to extrapolate additional information regarding the allegations, and he is insulating his client from making potentially fatal statements to the police. 

When facing with such an accusation, the prudent and smart thing to do is to simply demand an attorney when the phone call from the police comes.  That phone call will always come, as it is the easiest way for the police and prosecution to obtain a conviction through a confession.  Hiring an attorney to handle such an investigation into a sexual assault is a well worth investment, as the penalties are very harsh, and convictions virtually always result in prison or jail time.

The attorneys at the Law Offices of Raymond Cassar, PLC have over 45 years of experience of handling nothing but criminal defense.  Handling criminal investigations and providing insulation and comfort for our clients from the police investigations is what we do, and we are here to help you. For more information on how the attorneys at the Law Offices of Raymond Cassar, PLC can help you in such circumstances please visit www.crimlawattorney.com or feel free to contact us at 248-855-0911.

“Veteran’s Court” in Novi District Court

Today marked the first sentencing in Novi District Court for the brand new program initiated by the Hon Brian MacKenzie.  Mr. Cassar had the privilege of being able to get a favorable sentencing for our client, a Vietnam War veteran, in the new Veteran’s Court program following a OUIL 2nd charge.  Additionally, this was the first such sentencing, as Mr. Cassar was  the first attorney to argue for and get this sentencing from Judge MacKenzie.  Veteran’s Court allows for veterans of the United States Armed Forces to receive a variety of programs and “perks” not otherwise available after sentencing in district court. 

For more information, please feel free to contact the Law Offices of Raymond Cassar at 248-855-0911 or via e-mail at horia@crimlawattorney.com

Restitution in Federal Child Porn Cases

On January 5th a story was reported in the Start Tribune, a Minneapolis-St Paul paper, that Judge Patrick Schiltz from the US District Court in St. Paul issued an order demanding to know why restitution was no requested by the US attorney’s office in a federal child porn case.

“Amy” was the victim featured in some of the films possessed by Brandon Anthony Buchanan.  She was raped and had pictures of the crime taken and posted on the internet to be come some of the most widely circulated series of child porn images in the US.  Whenever defendants are identified to have possessed her films, she seeks significant amounts of money, often in the millions,  in restitution to pay for counseling and other expenses resulting from the crime. 

In this case, despite a request for restitution appearing in the pre-sentence report, the US attorney’s office remained silent on the issue of restitution.  Judge Schiltz referred to 18 USC 2259 which is the statute that directs district courts to order restitution for the “full amount of the victim’s losses.” Judge Schiltz expressed that the “the court will no longer accepted silence” in his order filed on Monday, January 4th, and demanded a memorandum from the US Attorney’s office by January 29 regarding their decision.

This is a very interesting issue.  The language of the statue is very broad and can probably be interpreted to suggest that there is indeed a mandatory restitution for the victims of child pornography.  Often, the restitution amount sought out is in the millions.  Therefore, if Judge Schiltz view becomes the prevailing view, in addition to the extremely harsh guidelines associated with child porn, the restitution would be a big time additional jam faced by defendants in child porn cases.

Good Faith Exception in light of GANT

On December 17, the California 3rd District Court of Appeal held in People v. Branner (C059288) that despite the Supreme Court’s decision in Gant, the exclusionary rule did not prevent the use obtained by an officer relying on the recently overturned decision of Belton.  The majority strongly declared that “the guilty should not go free when the constable did precisely what the US Supreme Court told him he could do, but the Court later decides it was the one who blundered.”

Branner was arrested when the officers discovered that he had no complied with the drug offender registration requirements in 2004.   Once arrested, the officers pursuant to Belton searched the passenger compartment of the vehicle and discovered cocaine base and a gun.  Branner pled after motion to suppress was denied, and in April 2009 he appealed only to see the Court of Appeals uphold his conviction. The very next day, Gant was decided by the Supreme Court overturning Belton, and limiting the officer’s ability to search incident to arrest only the areas within the arrestees immediate control and areas within which the areestee might gain possession of a weapon.

The Court of Appeals in CA granted Branner’s petition for rehearing in light of Gant and its retroactive effect.  The majority however again upheld the conviction by holding that while Gant applies retroactively to cases pending or on appeal, the good faith exception to the exclusionary rule was applicable to uphold the search and subsequent conviction.  Court reasoned that the remedial purpose of the exclusionary rule of deterring invasive government searches would not be served by excluding the evidence in a case like Branner’s.  The Court relied on US v. Leon, IL v. Krull, AZ v. Evans and Herring v. US to basically state that despite Gant‘s new holding and overturning of Belton, its application would have little deterrent effect on officers who in good faith had relied upon Belton.

Dissenting judge Ronald Robie relied on a recent 9th Circuit decision which refused to apply the good faith exception to a search authorized by Belton but recently decided unconstitutional by Gant.  He reasoned that it was much more important to focus on the defendant in the case and afford him the same consitutional protections afforded to the defendant in Gant, rather than focus on advancing the deterrent purpose of the exclusionary rule.