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Patrick Barone Becomes First Michigan Lawyer Certified as Trainer Educator and Practitioner of Psychodrama

Published on: January 25, 2022 | by Barone Defense Firm

The Barone Defense Firm is pleased to announce that founding member Patrick T. Barone has become the first Michigan lawyer to obtain certification as a Trainer, Educator and Practitioner (TEP) of Psychodrama. Barone sat for the written certification exam on October 23, 2021, and on January 17, 2022, he was advised by the American Board of Psychodrama Examiners (ABE) that he had passed the exam.

Having completed the long journey toward CP and TEP certification, Barone recounts the questions he is most frequently asked, which are first and foremost is “what is psychodrama” and a close second; “what does psychodrama have to do with the practice of law?” Barone asked himself the same questions when he first attended the Trial Lawyer’s College, the story of which is partially recounted in the 2016 Super Lawyer’s article entitled “Walking in Their Shoes, How Barone Defense Firm uses psychodrama to help clients cope with traumatic events.”

In answering these questions, Barone says “psychodrama is really something that must be experienced to be understood. Simply stated, psychodrama is a deep action method of psychotherapy.” Regarding what it has to do with the law, Barone indicates “as trial lawyers our chief skill is storytelling, and we must learn to tell our client’s stories ‘passionately and succinctly[i]’”. Among many other things, psychodrama offers lawyers powerful tools for learning this essential trial skill, something Trial Lawyer College graduates call ‘discovering the story’”.

What is the History of Jury Nullification?

Published on: December 15, 2021 | by Patrick Barone

In the United States, we obtained much of our initial original jurisprudence from England. This “precedence” is called the common law. Because the English common law had such an impact on the development of our law it makes perfect sense that the English common law tradition of jury nullification directly influenced early American criminal trials. In the colonies, both the right to a jury trial, and the jury’s associated nullification powers, were viewed as vital to ensuring liberty.

The Founders, all of whom had the personal experience of living under an oppressive and capricious government, also believed in the importance of the right to nullification, particularly when viewed through the lens of liberty and freedom from tyranny. As one historian observed, “The writings of Jefferson, John Adams, Alexander Hamilton, and other founders–Federalists and Anti-federalists alike–all support the belief in a jury responsible for deciding both fact and law.” Similarly, jury trials and nullification were respected throughout the early days of U.S. history.[i]

Nevertheless, as the common law developed the question remained about if and how nullification would be incorporated into our system of governance. While the right to a jury trial is mentioned repeatedly throughout our founding documents, the word “nullification” is absent from all of them. Consequently, the United States Supreme Court had to grapple with this issue, and attempt to resolve it. However, their precedent regarding nullification has never entirely resolved the role of the jury in a criminal case or even the propriety of nullification.

Research Shows that False Memories in Sex Crimes Cases Can Lead to Wrongful Convictions

Published on: May 28, 2021 | by Patrick Barone

Charges for criminal sexual conduct cases, more commonly called sex crimes or sexual assault, are often based only on the memories of the complaining witness. This is especially true for sexual assault that allegedly took place when the adult victim was a child. In these sex crimes cases there is no physical evidence, and the guilt of the accused rests entirely on the veracity of the witness’s statements and testimony. The problem is that the allegations of criminal sexual conduct can be based on totally false memories.

A new article written by an international team of researchers suggests that false memories can be reversed. According to the article, false memories cause many problems, not the least of which is false criminal allegations. The existence of false memories has been shown by many prior studies, and the contribution of this new study is that with the right kind of interviewing false memories can be supplanted by true memories.

To understand how this would all play out in a Michigan sex crimes case, the investigation of a sex crime usually begins with a report made to a police department. The initial report will inevitably be based on a recollection of past events, in this case some kind of sexual trauma or abuse. The case might then be assigned to a detective, who is likely to seek a second interview of the complaining witness, a/k/a victim. Depending on the age of the complaining witness, a forensic interview may follow.

How Common is Human Sex Trafficking in Oakland County Michigan?

Published on: February 11, 2021 | by Patrick Barone

While no statistics are readily available to answer this question, anecdotal evidence suggests that human trafficking is more common in Oakland County Michigan than most people realize or want to admit. This contention is informed by a recent press announcement by Oakland County Prosecuting Attorney Karen McDonald.

Ms. McDonald addressed the media when announcing a significant human trafficking bust in Madison Heights, a suburb of Detroit Michigan. During this press conference, Ms. McDonald indicated that her new administration had formed Oakland County’s first ever human trafficking unit. Furthermore, that under her administration, rather than assemble a special drug unit, her administration will focus on the identification, investigation, interdiction, and prosecution of those involved in human trafficking.

This public announcement comes days after Michigan’s Attorney General announced Michigan’s Human Trafficking Commission’s 2020 Annual Report. This 20-page report, available online, explains the framework under which Michigan’s Human Trafficking Commission operates, and a summary of the Commission’s work in 2020.

Michigan Prosecutor’s DUI Arrest Places Job at Risk

Published on: May 13, 2020 | by Michael Boyle

On May 11, 2020, a Southwest Michigan prosecutor arrested for DUI after crashing his car. He was later observed pouring liquid out of a container in an apparent attempt to conceal evidence. The container was later determined to have contained alcohol, and so the prosecutor was charged with open intoxicants as well as drunk driving.

If Convicted of DUI in Michigan He May End Up in Jail

The potential penalties for a first offense DUI, called OWI or Operating While Intoxicated in Michigan, include a maximum penalty of up to 93 days in jail. Additional sanctions include a fine of up to $500 fine, court costs and cost recovery, in addition to a crime victim rights fee and a judgement fee. On top of this, if convicted of DUI this prosecutor is likely to serve a term of probation, be ordered to complete up to 45 days of community service, be ordered to complete some form of counseling and could even lose his car through vehicle forfeiture.

New Title IX Rules Revise Procedure for Schools Handling Sexual Misconduct Cases

Published on: May 11, 2020 | by Ryan Ballard

On May 6^th, 2020, Secretary of Education and Michigan native, Betsy Devos, issued new rules under Title IX of the United State’s Federal Laws. Title IX is the section of the laws that prescribe more generally any form of discrimination on the basis of sex for any program receive federal funding. The rules and procedures set out under this section of Title IX also apply to domestic violence, sexual assault, stalking, and dating violence. The new rules govern when and under what circumstances colleges and universities may deal with alleged instances of sexual misconduct among students.

When is Sexual Activity Among Students Misconduct?

Devos’s new rules define sexual harassment as unwelcome conduct that is so severe, pervasive, and objectively offensive. This new definition is narrower than that under the Obama administration’s rules. The previous rule required conduct to be severe or pervasive as opposed to severe and pervasive. That one-word difference can be crucial. For example, one instance of sexual harassment may not be enough to trigger a school’s requirement to investigate the claim. Victim’s advocate groups are not happy with this change and believe that it effectively denies some victims access to the school’s programs.

Former RICO Prosecutor Offers Insider Tips for Avoiding Opioid and Prescription Fraud Investigations

Published on: March 15, 2019 | by Patrick Barone

Former RICO Prosecutor Offers Insider Tips for Avoiding Opioid and Prescription Fraud Investigations
The Barone Defense Firm is pleased to announce that Patrick Barone and Keith Corbett will be co-presenting to the Oakland County Bar Association’s Medical Legal Committee on April 4, 2019. Their presentation will offer attendees an insider view of the federal government’s tactics, objectives and methods of conducting an opioid fraud investigation. They will also offer tips for avoiding governmental scrutiny as well as what to do when contacted by the government.

Mr. Corbett will take the lead role in this presentation. He is an entertaining and informative speaker and will draw upon the wealth of knowledge and experience gained over the three decades he spent under the employ of the Department of Justice (DOJ), the institution charged with the investigating and prosecuting Medicare fraud. As Chief of the Organized Crime Strike Force for the United States Attorney’s Office, Mr. Corbett gained invaluable insight into what happens “behind the curtain” of the government’s opioid investigations. He will use this knowledge to provide seminar attendees with insider tips for avoiding the scrutiny of the Federal Government and offer advice for how to handle the threat of prosecution when such scrutiny becomes unavoidable.

This topic is currently of great concern to all health care professionals and the attorneys representing them due to the increasing federal pressure to investigate and hold responsible all health care professionals who engage in prescription fraud, with a special emphasis on cases involving opioids. For example, the Department of Health and Human Services announced late last year that they would spearhead a much more aggressive stance on prescription fraud, with a focus on stemming the opioid crisis in America. These increased efforts included the dispatch of 300 new prosecutors whose efforts will be supervised by an Opioid Coordinator in each Department office. The number of prosecutions and excluded providers is expected to increase in 2019.

When is a Doctor’s Referral Fee a Crime?

Published on: March 1, 2019 | by Barone Defense Firm

When is a Doctor’s Referral Fee a Crime?
It is unlawful for a doctor to receive any kind of payment or thing of value when the underlying services are payable by a Federal Health Care Program, including Medicare and Medicaid. Services may include medical services, drugs or supplies. The thing of value can include money, restaurant meals, event tickets, hotel rooms etc. Less obvious might be additional and/or excessive compensation for a particular job, such as a consultancy. In legal terms such compensation is called a “remuneration.”

Based on the Anti-Kickback Statute, found at 42 U.S.C. § 1320a-7b(b) it is a crime to either pay or receive such remuneration. The law indicates as follows:

(b) Illegal remunerations

Michigan Court Finds Search Producing Marijuana is Unlawful

Published on: October 13, 2016 | by Patrick Barone

If you are charged in Michigan with possession of Marijuana and/or Possession of Marijuana with Intent to Deliver, and the search producing the drugs is unlawful, your case can be dismissed. That’s effectively what happened in the case of People v. Mahdi, where Mr. Mahdi was convicted of two counts of possession with intent to deliver less than 50 grams of a controlled substance, MCL 333.7401(2)(a)(iv), and one count of possession with intent to deliver less than 5 kilograms of marijuana, MCL 333.7401(2)(d)(iii).

In investigating this crime, the police found out where Mr. Mahdi lived, then tricked his mother into giving them consent to search her house where he lived. The police did this because consent is an exception to the Fourth Amendment search warrant requirement. In searching the home, they did not find any drugs but did find keys, a cell phone and a wallet. This led the police to the apartment where they did find the drugs that became the basis of the felony drug charges. Also, while in possession of the phone, the police were able to retrieve calls from individuals ostensibly attempting to purchase drugs.

The court held that Mr. Mahdi’s mother had the authority or ability to consent, but because the police said they were going to search for drugs, but found keys, wallet and phone, the search exceeded the consent given. Her consent was for the limited purpose of uncovering drugs. Thus, the wallet, keys and phone were not lawfully seized by the police.

Court Questions High Costs in Michigan DUI Cases

Published on: September 2, 2016 | by Patrick Barone

In the recent Michigan Supreme Court case of People v. Cunningham, the court was called upon to decide if Michigan law[i] provides courts with the independent authority to impose costs upon criminal defendants. This question was presented because Cunningham was ordered to pay $1,000.00, but there was no indication in the court’s order as to the basis for these costs.

The Supreme Court ruled that this $1,000.00 in unspecified costs was not consistent with Michigan law which provides courts with the authority to impose only those costs that the Legislature has separately authorized by statute.

If you are convicted of DUI in Michigan, the in additions to any allowable fine, the court will also order you to pay court costs. As it relates to Michigan DUI cases, the most contentious issue about this court costs is often the charges for “costs of prosecution.” Michigan DUI law does allow the court to order you to pay costs of prosecution if you are convicted of DUI because these are allowed by statute.