Bar Briefs - Macomb County Bar Association

Bar Briefs
Official Publication of the Macomb County Bar Association
Volume 33
October 2014
Number 04
Dedicated to Elder Law Solutions.
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Macomb County Bar Association
2014-2015
Board of Directors
In This Issue: October 2014
President
John B. DeMoss
(586) 469-9090
President Elect
Donald P. DeNault Jr.
(586) 726-1000
Secretary
Stephen Becker
(586) 615-5617
Treasurer
Karen Trickey Pappas
(586) 465-8227
Immediate Past President
Julie Gatti
(586) 469-1111
Directors / Term Ending
Joseph Golden [2015]
(248) 398-9800
R. Timothy Kohler [2015]
(586) 263-1600
Dawn Prokopec [2015]
(586) 778-7778
Jon C. Biernat [2016]
(586) 493-5377
James Maceroni [2016]
(586) 465-4900
Peter W. Peacock [2016]
(586) 466-7605
Donald Gillain [2017]
(586) 481-4297
Ryan Machasic [2017]
(586) 914-6140
Lori Smith [2017]
(586) 420-3707
Young Lawyers Section Chair
Francesco Briguglio [2015]
(248) 593-9090
Women Lawyers Association of
Michigan - Macomb Region
Maryanne J. Deneweth [2015]
(586) 412-4900
MCBA Staff
Executive Director
Rick R. Troy
RTroy@macombbar.org
Associate Executive & Communications Director
Dawn M. Fraylick
DFraylick@macombbar.org
Membership and Events Director
Lauren Koslosky
LKoslosky@macombbar.org
4 From The President
Thomas C. Rombach, Macomb’s New State Bar President
By John B. DeMoss, President of the Macomb County Bar Association
7
From the E.D.
50 Years
By Rick R. Troy, Executive Director,
Macomb County Bar Association and Foundation
8
Circuit Court Corner
By Jennifer M. Phillips, 16th Judicial Circuit Court Administrator
October 2014
1 2 3 4
5
12
19
26
6 7
13 14
20 21
27 28
8 9
15 16
22 23
29 30
10 11
17 18
24 25 31
November 2014
1
2
9
16
23
30
3 4 5
10 11 12
17 18 19
24 25 26
6 7 8
13 14 15
20 21 22
27 28 29
10 Some Evidence
By Hon. Carl J. Marlinga, Macomb County Probate Court
16 Guest Article
John Lascoe: Celebrating 50 Years of Practice
By Gail Pamukov-Miller, Esq.
19 Feature Article
Chief Judge Pro Tempore James Biernat, Jr.
By Colleen Orr, Attorney at Law
22 Classifieds
Oct 8
12:00pm
Oct 13
Court Closed
Oct 14
12:00pm
Oct 15
8:00am
Oct 16
5:00pm
Oct 20
11:30am
Criminal Law Committee Meeting
Columbus Day
Juvenile Law Committee Meeting
MCBF Board Meeting
MCBA Board Meeting
Juvenile CLE - “Diversion and Case Law Update”
Nov 4
Court Closed
Nov 11 Court Closed
Nov. 12
12:00pm
Nov. 13
7:00pm
Nov. 19
8:00am
Nov. 20
5:00pm
Nov. 24
11:30am
Election Day
Veteran’s Day
Criminal Law Committee Meeting
Wine Down for Fall - “A Wine
Tasting Event”
MCBF Board Meeting
MCBA Board Meeting
Juvenile & Criminal CLE“ICWA”
Macomb County Bar Association
Macomb County Circuit Court Building, 40 North Main St., Suite 435
Mount Clemens, MI 48043-1037
Phone: (586) 468-2940 • Fax: (586) 468-6926 • MacombBar.org
“Advocating and promoting excellence in the legal profession by delivering quality service
to our members and the public.”
Editors Note: The expressions of opinion published in Bar Briefs do not necessarily reflect the official position of the MCBA, nor does this publication constitute an endorsement of the views expressed. Bar Briefs (ISSN0886-506X) is published monthly by the Macomb County Bar Association. Copyright 2014 by the Macomb County Bar Association. Call (586) 468-2940 for advertising information. Subscription price of
$45 is included in the annual membership dues. Periodical class postage paid at Mt. Clemens, MI 48043. POSTMASTER: Send
address correction to MCBA Bar Briefs, 40 North Main St., Suite 435, Mt. Clemens, MI 48043-1037.
From the PResident
Thomas C. Rombach,
Macomb’s New State Bar President
By John B. DeMoss,
Macomb County Bar Association President
Your new State Bar President is
smooth, friendly, and always willing to talk. He is everywhere,
and is the closest thing to an energizer bunny you will ever find
in our profession. Thomas C. Rombach was the first MCBA
president under 40. He is the third
State Bar President from Macomb
County.
Being president of the State
Bar is really a full-time job. Most
presidents receive a great deal of
support from their firms. There is
a reason why Tom is only the third
President with a solo practice. He
has to somehow figure out how to
eat and support himself and Bonnie,
while bouncing around the state for
an entire year. Tom tries to leave his
mornings free for court appearances.
Afternoons and evenings usually
belong to his Bar responsibilities.
Tom has offices in New
Baltimore and Clinton Township.
His practice involves criminal and
civil litigation, municipal law, and
whatever tends to interest him at the moment. He has provided
legal counsel for a number of political campaigns.
I have noticed that Tom listens very carefully to everything
that is being said. He then gives a very well-reasoned, calm
reply. His strength lies in his ability to lead while moving a
discussion or debate in a direction of consensus. You will find
that he is always steering the discussion in a direction that
benefits everyone. There is not much more you can ask of a
leader.
I am convinced that Tom
MacombBar.org
4
has the soul of a mediator. People always walk away with
the opinion that their ideas were carefully listened to and
incorporated into a final resolution. Although he has quite a bit
of mediating experience, he will have little time for that pursuit
during his presidential year.
Tom was originally a
newspaper reporter. He entered
a national oratory competition
and qualified for the finals at the
Michigan Supreme Court. His
presentation of why cameras
should be allowed in the courtroom
won the top prize, which happened
to be a scholarship to Cooley Law
School.
He became a Macomb
attorney right out of law school.
He has fond memories of being
embraced by the legal community,
and tries to repay in kind with
mentoring and his many Bar
activities. He speaks fondly of his
MCBA experiences:
“Traditionally, the MCBA
conducts one of the best bench-bar conferences. I always
look forward to hearing the judges’ perspectives on the issues
of the day and their dialogue with any attorney who chooses
to attend. Many solutions to everyday problems have been
implemented thanks to this exchange of ideas. A better
understanding between our Bench and Bar is gained. This
understanding makes our Bar’s relationship with our bench,
and vice versa, the envy of all the other practitioners in the
state. I always
Bar Briefs • October 2014
From the PResident
learn
something by
attending.”
“I am very proud to
represent the talented and
hardworking attorneys in
Macomb County on a statewide basis. My activities in
the bar have been a method for
me to repay the many attorneys
who helped me along the way since I first became a lawyer.
To this day, most of them still know far more that I do, so
reciprocating in kind is impossible.”
Tom has been actively volunteering for the State
Bar’s Professionalism in Action Program for incoming
law students. The program emphasizes the importance
of a lawyer’s reputation in the community for ethics and
integrity. He pointed out that the ranks of the Macomb Bar
deserve high praise in these areas.
Tom has always held a Bar Association elective office,
either for the MCBA or Michigan Bar, since his first
semester at Cooley. He represented his law school class for
the State Bar.
Tom laughed when I asked why he wanted to be State
Bar President. Apparently, there are limits to the number
of directions that he can be pulled in at once. I personally
am in awe of his ability to tirelessly represent his clients,
while participating in the vast array of Bar Association and
charitable activities. Bonnie indicates that she hears people
say that Tom is the best attorney you have never heard of.
Despite his overwhelming public service, he never seeks
recognition or publicity for his amazing contributions.
“Do or do not. There is no try.” Yoda
Bonnie adds, “Tom’s dedication to his clients and
to positively impacting the justice system and the legal
profession through his Bar activities is what makes him tick.
He is passionate about the law and helping people, especially
those most in need, such as the under-represented or the
mentally ill.”
Tom met Bonnie in 1989 at a Virginia Slims tennis
match at The Palace. She happened to be the boss of one
of his college roommates. Unfortunately, she accepted a
job in San Francisco shortly after they met. With his usual
determined style, Tom did not give up.
MacombBar.org
5
He almost
bankrupted himself with
long-distance phone calls and trips to
San Francisco. His persistence paid off, and
he ultimately wooed Bonnie back to the Detroit
area. They married in 1992.
Bonnie is the person who manages and
organizes Tom’s business practice and Bar
activities. Tom operates more in the trenches as
a leader and persuader. It makes for a dynamic
ADR
Retired Macomb County Circuit Judge
Available for Mediation, Facilitation or
Arbitration
134 Market St.
Mt. Clemens, MI 48043
Hon. James M.
Biernat
P: (586) 770-4713
F: (568) 461-5377
JamesMBiernat@gmail.com
From the PResident
marriage
that works very well for
them. (I contrast this with the vow Lisa
and I took in law school to never practice in the
same county. We are convinced this vow saved our
marriage.)
“Shoot for the moon. Even if you miss, you’ll land
among the stars.” Les Brown.
Tom indicates that an overwhelming number of the State
Bar members have expressed support for the same three
goals for the State Bar that he holds dear as President:
1. Remaining a mandatory Bar;
2. Maintaining the Bar’s public policy advocacy; and
3. Preserving the State Bar’s governance structure.
Tom’s emphasis this year will be on addressing the
needs of 21st century lawyers and their clients. He believes
there is a paradox of more lawyers than ever, together with
the highest ever unfulfilled demand for legal services. Tom
is the perfect man for that sort of challenge.
What about the guy when he is not playing Superman?
Tom is a former semi-professional soccer player. He
enjoys trips to exotic locales. He developed his love of
travel from his mother. Since 2007, Tom has travelled to
Panama and the Middle East with family members. He
loves the exposure to other cultures. He is also interested
in how the justice system operates in different parts of the
world. He traveled to Cuba in 2012 with fellow members
of the State Bar’s Criminal Law Section to learn about their
justice system, and to educate them about ours. Have Tom
explain to you the
Cuban method of prosecuting
a case.
“One’s destination is never a place, but a new
way of seeing things.” Henry Miller.
What Tom Does In His
Spare Time
Thomas C. Rombach has represented criminal and
civil litigants throughout Michigan for 27 years. He is President of the State Bar of Michigan and represents Macomb and
St. Clair Counties on the State Bar’s Board of Commissioners.
He is also an elected member of the National Conference of
Bar Presidents and the American Bar Association’s House of
Delegates.
Tom helped lead the efforts to design the new County
Executive office as a Macomb County Charter Commissioner.
He previously served as Vice Chairperson of the Justice and
Public Safety Committee on the Macomb County Board of
Commissioners and as City/Prosecuting Attorney for Hazel
Park. In 2002-2003, he presided as Chairperson of the Representative Assembly, the State Bar’s final policy-making body.
He has testified in hearings before the Michigan House
as well as the Michigan Supreme Court. Tom has been elected
to the Boards of Directors of 15 civic and charitable organizations. He was honored with the Macomb County Outstanding Volunteer Award in 2004, the Macomb County Pro Bono
Services for Senior Citizens Award in 2007, and the Macomb
County Bar Association’s First Distinguished Public Service
Award in 2011. Tom also earned the Thomas M. Cooley Law
School Alumni Distinguished Service Award in 2012, and The
Resolution Center’s Conflict Resolution Advocacy Award in
2014.
Whew! It’s enough to give we mere mortals an infe-
riority complex. You should know that I left a number of items
off this list to save space.
From the E.D.
50 Years
By Rick R. Troy, Executive Director, Macomb County Bar Association and
Macomb County Bar Foundation
As the year 1964 approached, the United States was reeling
from the November 22, 1963 assassination of President John
F. Kennedy. President Lyndon B. Johnson established the
President’s Commission on the Assassination on November 29,
1963. The world was about to change, again.
50 years ago the world was introduced to the Beatles. Jack
Parr played their song “She Loves You” in January and they
appeared on The Ed Sullivan Show in February. In between
President Lyndon B. Johnson made the first mention of a “War
on Poverty” in his State of the Union Speech. GI Joe became a
popular toy, the Surgeon General announced that smoking was
linked to lung cancer, and Martin Luther King was awarded the
Noble Peace Prize. 1964 was also the year that the Catholic
Church replaced Latin with English, the Governor of Indiana
tried to ban the song “ Louie, Louie” and comedian Lenny
Bruce is arrested for obscenity. Khrushchev was deposed,
Nelson Mandela was sentenced to life imprisonment in South
Africa, China detonates its first atomic bomb, Congress
approved the Gulf of Tonkin Resolution and North Korea is
bombed. The race to space was in full flight, Walt Disney
was awarded the Medal of Freedom at the White House, and
Peggy Fleming skated into the hearts of the world. “The Pink
Panther”, “The Munster” and “Star Trek” were introduced
on television. Three civil rights workers were murdered in
Mississippi during the month of June, and in July the Civil
Rights Act was passed. The Red Wings lost in the Stanly Cup
finals to Toronto and the Cardinals beat the Yankees in the
World Series. The Rolling Stones, Bob Dylan, The Beach
Boys, and Barbara Streisand took strongholds in the music
industry where Motown was dominant, while Rod Stewart
recorded his first single. AND…, Macomb County Bar
Association members Theodore Andris, Anthony Bellanca,
Vito Cusenza, Robert Hadar, Perry Lewis, Thomas Jakuc, John
Lascoe and Charles Moceri took the Oath of Admission to the
bar and began their careers as lawyers. Congratulations to
these, our State Bar of Michigan 50 year honorees.
The legal community lost a great one earlier this spring.
State Bar of Michigan 50 year Honoree, Robert Hadar was an
active member of the MCBA his entire career. MCBA boat
outings always started out with a fishing competition and, if
Mr. Hadar wasn’t winning the competition, he was judging the
catch of the day. To learn more about Mr. Hadar and our other
50 Year Honorees I invite you to visit MacombBar.org.
Hosted by the Juvenile Law Committee of the Macomb County Bar Association
Diversion & Case Law Update
October 20, 2014
11:30 Lunch • 12:00pm-2:00pm Seminar
16th Circuit Court Jury Room
featuring
Christine Piakowski, Esq. - Diversion
Thomas Tomko, Esq. - Case Law Update
Members $35 • Non-Members $45 Late Registrations and Walkins will be charged an extra $10. Please Register by calling
(586) 468-2940 ext. 101 or at MacombBar.org by October 16, 2014. No Show Registrants = $10 Service Fee
CIRCUIT COURT
CORNER
Circuit Court Corner
By Jennifer M. Phillips,
16th Judicial Circuit Court Administrator
Welcome
Adoptions Supervisor
Mark Pellecchia
to find permanent, loving families. National Adoption day is
celebrated on the Saturday before Thanksgiving, which this
year is November 22, 2014. However, courts across the nation
- including the Macomb County Circuit Court - will celebrate
We are pleased to announce the hir- National Adoption Day on Tuesday, November 25, 2014.
Many well-known people have been adopted or have ading of Mark Pellecchia as Adoptions Supervisor for Macomb
County Circuit Court. Mark graduated
opted a child. The following individuals were
from Oakland University with a BA in
adopted as children: Dave Thomas, founder
Political Science and a Minor in Com-
of Wendy’s and Wendy’s Wonderful Kids;
munications, and he received a JD from
Mother Teresa, humanitarian; William Clin-
the University of Detroit Mercy School of
ton, former U.S. President; Nelson Mandela,
Law. Prior to joining the County, Mark
civil rights activist; John Lennon, singer; Faith
worked for more than 14 years in a suc-
Hill, singer; Eric Dickerson, former profes-
cessful private practice. During this time,
sional football player; Jesse Jackson, minister;
Mark gained extensive experience in juve-
Ray Liotta, actor; Greg Louganis, Olympic
nile neglect and abuse cases, and in adop-
gold medal diver; Alonzo Mourning, former
tion matters. We are excited to welcome
professional basketball player; Jim Palmer,
Mark to the Circuit Court! The following
former professional baseball player; and Sarah
is an article written by Mark regarding
McLachlan, singer.
National Adoption Day. Specific informa-
The following individuals have adopted a
tion regarding Macomb County Circuit
child: Walt Disney, founder of Disney; Ronald
Court’s Adoption Day will be released in
Reagan, former U.S. president; John Roberts,
U.S. Supreme Court Justice; Babe Ruth, former professional
the coming weeks.
baseball player; George Burns, comedian; Sammy Davis Jr.,
National Adoption Day
entertainer; Willie Mays, former professional baseball player;
Dan Marino, former professional football player; Jerry Lewis,
entertainer; Brad Pitt, actor; Angelina Jolie, actress; Magic
According to the 2012 fiscal year statistics, 399,546 chil-
dren were served by the foster care system nationally, of which Johnson, former professional basketball player; and Tom
Cruise, actor.
52,039 were adopted and 101,749 were waiting for adoption.
(AFCARS data, U.S. Children’s Bureau, Administration for
Children, Youth and Families). Most of the children await-
tential adoptive parent(s). AdoptUSKids and Michigan Adop-
ing adoption are school-aged children. Many of the children
tion Resource Exchange, (hereinafter referred to as “MARE”)
have emotional, physical or learning disabilities. National
are widely utilized information and referral services assisting
in matching foster children with adoptive parent(s). Adop-
Adoption Day is a collective national effort to raise aware-
tUSKids is a nationwide database while MARE is
ness of children in foster care waiting
MacombBar.org
An ongoing challenge is to match foster children with po-
8
Bar Briefs • October 2014
CIRCUIT COURT
CORNER
a statewide database. The
5. Exchange informa-
databases contain pictures and informa-
tion with child’s adoption agency. Upon
tion about foster children waiting to be adopted.
locating a child to potentially adopt, your adoption
MARE conducts match parties that provide prospective caseworker and the child’s adoption caseworker will
adoptive parent(s) the chance to interact face-to-face with
exchange information.
many of the children waiting to be adopted.
6. Selected to adopt a child and more information shar-
“Adoption is not about finding children for families, it’s
about finding families for children.” – Dr. Joyce Maguire
Pavao
ing. The child’s adoption caseworker selects the adop tive
parent(s) that best fit the needs of the child. Upon being
selected, more confidential medical and social history of the
child and the child’s parent(s) is shared.
The following is a guide for those people interested in adopting a foster child.
7. Meeting and visiting with the child. The first meeting with a child is followed by several visits over weeks or
1. Learn about adoption. The National Adoption Center,
months to explore the chemistry and develop a relationship.
nac@adopt.org, is an excellent learning and resource tool. A
social networking site for adoptive families and those inter-
8. Placement of the child in your home. Adoptive parent(s)
ested in adopting is located at www.adoptspeak.org.
will file a legal intent to adopt. The adoption agency has discretion to place the child in a prospective adoptive parent(s)
Wendy’s Wonderful Kids – Dave Thomas Foundation for
home. Any adoption assistance for the child in the form
Adoptions provides education and resources.
of a financial and/or medical subsidy would be applied for
and negotiated based upon the child’s needs. The adoption
2. Select a licensed adoption agency. Contact several
caseworker would request consent for the adoption from the
agencies and obtain details as to the type of children they
Michigan Children’s Institute, which acts as a guardian over
place, fee structure and their assessment of families. Obtain each orphaned child in Michigan. references and speak to other parent(s) who have used the
agency you are investigating. You can visit AdoptMatch for 9. Filing petition and finalizing the adoption. Upon
agencies in your area.
receiving consent from the Michigan Children’s Institute
and a subsidy determination, a petition for adoption is filed.
3. Complete a home-study. A home-study is a detailed
Michigan Law requires a 6 month supervision period prior
investigation of adopting parent(s) to ensure the adoption
to finalization. However, the supervision period may be
is in the best interests of the foster child. The home-study
waived if it is found by the court to be in the best interests of
includes, but is not limited to, criminal and child abuse back- the child to be adopted.
ground clearances, home inspection, medical clearances, etc.
10. Post-adoption services. Support services are available
4. Search for a child. The adoption agency will have
for your adopted child’s needs and provide possibilities to
children in its care, or your adoption caseworker will search
connect with other adoptive parent(s).
for a child via networking with other adoption agencies.
“Let us put our minds together and see what kind of future we can make for our children.” – Chief Sitting Bull
One can also view AdoptUSKids and MARE databases of
children.]
MacombBar.org
9
Bar Briefs • October 2014
Some Evidence
Some Evidence
By Hon. Carl J. Marlinga,
Macomb County Probate Court
Prior columns dealt with unsworn-notcross-examined-out-of-court statements
that were not hearsay because they
were not assertions of fact or because
they were offered for reasons other than the truth of the assertions. This column focuses on MRE 801(d) which deals with out
of court statements which are, indeed, assertions of fact and which
are offered specifically for the truth of the matter asserted -- but
which, nevertheless, are not hearsay, because the court rule says
so.
This rule is so critically important that it should be memorized
and recited daily by everyone who thinks of himself or herself as
a trial lawyer. (Well, maybe not everyday, and maybe not out loud,
but the rule is really important.)
According to MRE 801(d)(1) a statement is not hearsay if:
(a) The declarant is testifying at a trial or hearing and the declarant
previously testified under oath in a way that is inconsistent with
his or her current testimony. The prior statement in these circumstances is not hearsay and comes in as substantive evidence. Prior
to the 1991 amendments, such prior inconsistent statements were
not admissible as substantive evidence, but the change in the rule
now permits the fact finder to decide whether the prior statement
or the in-court testimony is true. See Weinstein, Evidence, section
801(d)(1)(A)[01]. Both statements are evidence.
(b) The declarant is testifying at a trial or hearing and the declarant previously testified under oath in a way that is consistent with
his or her current testimony. Such prior consistent statements
are admissible, however, only if there is an express or implied
suggestion that the declarant recently fabricated or changed his
or her testimony. It is required that the prior consistent statement
be from a time that preceded a motive to fabricate. See People
v. Brownridge, 225 Mich App 291, 302, 570 NW2d 672 (1997).
Once again, as with prior inconsistent statements, prior consistent statements are regarded as substantive evidence. Evidence or
testimony of a prior consistent statement may be introduced by a
third party who witnessed the prior consistent statement. People v.
Brownridge, supra.
(c) The declarant previously identified a perMacombBar.org
10
son. Typically this part of the rule is applied to allow a prosecutor
to get in evidence of identification of a defendant at a line-up. The
testifying declarant can be asked about such prior identification
without regard to whether the in-court testimony was consistent
or inconsistent. Since the prior identification is not hearsay, even
a witness other than the declarant can testify about it. People v.
Malone, 445 Mich 369, 518 NW2d 418 (1994).
Further, according to MRE 801(d)(2) a statement is not hearsay if:
(a) The statement is of a party opponent. Sometimes this rule
is mistakenly referred to as an “admission against a party’s
interest.” There is, indeed, a separate rule, MRE 804(b)
(3) which allows an unavailable declarant’s statement to be
admitted as an exception to the hearsay rule when the statement is against the declarant’s interest; but when the declarant
is a party, the out of court statement is admissible whether
or not it is against the party’s interest, and whether or not
the party is available as a witness. All statements by a party
opponent are admissible without regard to whether the out of
court statements were against the party’s interest when made.
Shields v. Reddo, 432 Mich 761, 443 NW2d 145 (1989).
(b) The party opponent has manifested an adoption or belief
in the truth of a statement. This is just a logical extension
of the above. Wayne Bank v. Dore, 119 Mich App 634, 326
NW2d 588 (1982). See also Barnett v. Hidalgo, 478 Mich
151, 732 NW2d 472 (2007) in which the Supreme Court held
that statements made in an expert witness’s affidavit, submitted by a party, were adoptive admissions by the party herself.
(c) A statement by a person authorized by a party to make a
statement on his or her behalf. (Beware what your press agent
says at a press conference.) This part of the rule has been held
to apply to statements of fact by a defendant’s attorney. In
People v. Everett, 156 Mich App 615, 402 NW2d 773 (1986)
the Court of Appeals allowed an attorney’s alibi notice to be
an adoptive admission by the defendant himself, allowing the
prosecutor to argue that the defendant falsely claimed to have
been out of town when the robbery occurred.
(d) A statement by a person’s agent or employee within the
scope of the agency or employment. This applies
Bar Briefs • October 2014
Some Evidence
to statements that were
not expressly authorized, but which
should, nevertheless, be charged to a party
opponent because the person making the statement
impliedly had the party’s authority to speak on his, her,
or its behalf. In Adama v. Doehler Jarvis, Division of NL
Industries, Inc., 419 Mich 905, 353 NW2d 438 (1984), a
plant manager said that the reason for a plant’s closing was
the company’s desire to avoid millions of dollars in retirement compensation to the employees. The circuit court
admitted the statement as an admission against the company. The Court of Appeals reversed. The Supreme Court
reversed the Court of Appeals, reinstating the judgment
of the circuit court and holding that since the statement
concerned a matter within the scope of the plant manager’s
agency, it was properly chargeable to the company.
(e) A statement by a coconspirator of a party during the
course and in furtherance of the conspiracy. I will avoid
detailed explication of, and annotations for, this part of the
rule, since this is a topic for a seminar in criminal practice
that exceeds the space limitations of a column such as this.
Just remember a few pointers:
The conspiracy need not be
charged, so this rule is applicable in most
co-defendant situations or where the defendant is
an aider and abettor.
The conspiracy needs to be proven by some evidence
other than the statement itself.
The burden of proof to prove the existence of the conspiracy for admission of the statement is “preponderance of
the evidence” although proof of the conspiracy for purposes of
conviction is still beyond a reasonable doubt.
Statements or confessions of a coconspirator after arrest are
not admissible under this rule since once an arrest is made the
statements can no longer be regarded as “in furtherance of the
conspiracy.”
The usual and best practice for determining the admissibility of a coconspirators statement is a hearing outside the
presence of the jury at which the judge can decide, under MRE
104(a), whether the predicate facts necessary for admission
have been satisfied.
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modifications. MCL 500.3107(1)(a).
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Achieving Consistent Excellent
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(586) 468-6345
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Wine Down For Fall
A Wine Tasting Social
November 13, 2014
7:00pm-9:00pm
Filipo Marc Winery
39085 Garfield Rd. Clinton Twp., Next to Luciano’s
Join us for a sampling of a variety of fifteen wines
while enjoying an array of hors d’oeuvres.
Only $20 Per Person
Please RSVP by November 7, 2014. Space is Limited.
Want to Settle Your case?
(586) 469-9090
Hosted by the Juvenile and Criminal Law Committee of the
Macomb County Bar Association
Indian Child Welfare Act (ICWA)
November 24, 2014
11:30 Lunch • 12:00pm-2:00pm Seminar
Thank You
Family FunFest
Sponsors
16th Circuit Court Jury Room
featuring
Kathryn Fort,
MSU Law Professor
Maribeth Preston,
State Court Administrators Office
Child Welfare Services
Members $35 • Non-Members $45
Late Registrations and Walkins will be charged
an extra $10. Please Register by calling
(586) 468-2940 ext. 101 or at MacombBar.org
by November 21, 2014.
No Show Registrants = $10 Service Fee
Law Offices of DeMoss & DeMoss PLC
The Rec Bowl
Disability Attorneys of Michigan
Trickey Law PLLC
Bellanca LaBarge PC
Warner Norcross & Judd LLP
Joseph Kosmala
James Spagnuolo
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Charles Trickey III
MCBA Past Presidents
Bringing a balanced career to
Facilitations and Arbitrations
Raymond Glime
Michael Osaer
John Potvin
Emil Cardamone
Plaintiff Personal Injury
1972-1987
Maceroni, Maceroni & Trickey, P.C.
Max McCullough
Gail Pamukov-Miller
Gene Bolanowski
Felice Iafrate
Insurance Defense
1988-2014
AAA House Counsel
trickeylawpllc@gmail.com
14 First St.,
Cell: 586-850-8336
Mt. Clemens, MI 48043 Office: 586-465-4900
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Peter W. Peacock
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Guest Article
John Lascoe
Celebrating 50 Years of Practice
By Gail Pamukov-Miller, Esq.
Past President of the Macomb County Bar Association
On September 19, 2014, John S. Lascoe, Esq. and other
After completing high school, John attended Marquette
attorneys from the class of 1964, will be honored by the State University and obtained his Bachelor of Arts Degree in 1961.
Bar of Michigan to celebrate their 50th year of admission to the He then attended the University of Detroit Law School, graduBar. Practicing law for 50 years, and being successful at it, is ating in 1964.
no small feat. All of us who know and worked with John over While in law school, John met his wife, Joanne. At the
the years, offer
time, they were
congratulations
both working at
for his many
the Indiana State
successful years
Park. Eventuof practice and
ally, a mutual
for being an
friend formally
example of how
introduced them
to lawyer, have
and after a three
fun and gather
week courtfriends while
ship, John asked
doing so.
Joanne to marry
John grew
him. Like most
up in Chesteryoung couples,
ton, Indiana.
they had little
According to
money. John,
John’s wife,
being the ever
while attendpractical man
ing Chesterton
that he is, told
High School,
Joanne that
he was class
after they saved
Hon.
Antonio
Viviano,
John
Lascoe,
David
Elias
and
Mark
Mileski.
president for
$2,000.00
four years, and
they could get
student council president for three. John’s big personality and married. The couple married in 1962 while John was in law
entrepreneurial spirit started to emerge at this time. As class
school.
president, somehow, John managed to secure his own office at After John finished law school, he began working at the
the high school. He also put together an award winning year- Macomb County Prosecutor’s Office. Subsequently (1968 book, the year he was responsible for publishing
1983), he joined and eventually became a managing
it.
Bar Briefs • October 2014
MacombBar.org
16
Guest Article
partner of then, Stewart
O’Reilly Lascoe Cornell and Rancilio,
PC. At the same time (1971 - 1983), John was
also Assistant Sterling Heights City Attorney. In 1983,
John opened his own practice in Sterling Heights. John has
a general practice with an emphasis on criminal and family
law matters.
John has been a member of the Macomb County Bar and
State Bar of Michigan since 1965. He has been AV rated
by Martindale Hubbell since 1970. John has innumerable
professional associations. However, most significantly, over
the last 5 years he has arbitrated or mediated over 200 cases
per year.
John’s reputation as a lawyer and person is extraordinary. The following are comments from friends and colleagues who have known John during his many years of
practice:
Macomb County Friend of the Court, Lynn Davidson, Esq.: When I think of John Lascoe, I think of a very
seasoned counselor of the law who provides good, sound
advice to his clients; a very generous human being; a person
you could go to for help, who would actually help you; and
an excellent mediator who provides real life solutions.
Michigan Court of Appeals, Honorable Pat Donofrio:
John’s favorite question is: “What’s the scoop?” He is like a
gossip columnist looking for inside information about anyone or everything, both inside and outside the Court. John
can be irreverent, and his approach to litigation and mediation range from charming to humorous to matter-of-fact. He
uses all of his skills, as well as his reality based approach to
life to effectively close cases at mediation.
Macomb County Friend of the Court, David Elias,
Esq.: John Lascoe has been and will always be a true friend
to people from all walks of life. His often gruff exterior
and politically incorrect positions, mask one of the kindest,
most generous human beings I have ever had the privilege
to know and work with. His mediation/arbitration style falls
into that realist theme. John has helped people through hard
times, sometimes with a smile and sometimes with harsh
reality.
Rhonda Esler, Secretary to Honorable Kathryn
Viviano: John has nicknames for everyone. He has the biggest heart of anyone I know. He is a kind and caring
MacombBar.org
17
person who would do anything for anyone.
Macomb County Circuit Court, Honorable John Foster: Since the current Macomb County
Courthouse opened in 1969, all who have worked here
are familiar with “The Voice”. That distinctive John Lascoe rasp with just a lilt in the greeting or a snarl when in
disagreement. John’s litigation style involves an array of
styles: straightforward when needed but cajoling and witty
when called for. John is the Macomb Insider without peer
and a friend whose advice (and straight talk) are continually
sought and considered by me and innumerable others.
Macomb County Friend of the Court, Zaira Maio,
Esq.: Shortly after getting divorced and becoming a single
mother of two children, I will never forget Christmas 1998,
when John Lascoe approached me and asked if there is
anything I needed because he wanted to make sure my girls
had a good Christmas. I knew I could take John’s offer to
the bank. Fortunately, I did not need to take John up on his
offer, but I was so touched that he was willing to extend
himself to help me. It is that very extension of himself as a
mediator and family law practitioner that makes John a topshelf, one of a kind family law practitioner.
Macomb County Deputy Sheriff, Mark Mileski: After
28 years with the Sheriff’s Department and thinking about
the countless characters that I have met, when you climb to
the top of Mt. Macomb, there sits the most colorful of them
all, John Lascoe. To those of us that know him well, John is
the most straight talking, straight forward, straight shooting,
no nonsense guy in the business. His integrity is unquestioned and loyalty to his friends is second to none.
Macomb County Deputy Sheriff, Richard Norton: I
met John when I was a young deputy. When I moved over
to Circuit Court I believe I met the true John Lascoe, strong,
hard-nosed and quite possibly the most giving man I have
ever met. Deep down under that tough exterior there is a
very soft and caring man.
Sue Reed, Legal Assistant to John Lascoe: He is the
best boss anyone could have. I think we make a great team
and after nearly 18 years of working for and with him, I
consider him a dear friend.
Macomb County Circuit Court, Honorable Mark
Switalski: I worked with John a lot in the Family Division.
Bar Briefs • October 2014
Guest Article
He is a very popular choice among attorneys as their mediator. He settles cases. He
always reads the mediation summaries. He not only
reads them, he understands each litigants position and
immediately tells them his assessment of the strengths and
weaknesses of their case. He hates not settling a case. Even
more, if David Elias settles the case later.
Macomb County Circuit Court, Ret. Honorable
Antonio Viviano: Two qualities stand out in John: Honesty
and Integrity. Anyone who knows John, knows he does not
put on airs, he tells you like it is. He is a talented lawyer and
for many years has helped many people. It is an honor to be
John’s friend. I love John. He is truly my brother.
Macomb County Circuit Court, Honorable Kathryn
Viviano: John has the courage to tell you what you need
to hear. You never have to guess at what he thinks. He
doesn’t mince words for which I am always grateful. John is
tough on the outside, but as we all know, kind, generous, and
soft on the inside. I am honored to be a colleague.
Macomb County
Circuit Court, Honorable Tracey
Yokich: John is truly an inspiration to lawyers,
young and old. His calm, professional and compassionate approach to helping families navigate divorce and
custody litigation reflects a gentle and understanding heart.
He is tremendously generous with his time and experience.
John is an extraordinary man who has touched so many
lives.
Besides the admiration of myriad friends and colleagues, John has enjoyed the love and support of his family
over his many years of law practice. John and Joanne have
been married for 52 years. They have four children, John
(an attorney); Jason (an insurance adjustor); Joan (a teacher);
and Jerome (an attorney). They enjoy their 10 grandchildren
and are soon to be great grandparents.
For all of us who have had the pleasure of knowing John
and working with him through his many years of practice,
we thank you for being our friend, colleague and mentor and
congratulate you on a career well lived.
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Guest Article
Chief Judge Pro Tempore
James Biernat, Jr.
By Colleen Orr, Attorney at Law
Chief Judge Pro Tem James M. Biernat, Jr. was born January 19, 1968 in St. John Hospital in Detroit. At the time of
his birth, his family resided in Detroit, but they later moved
to Clinton Township, which remained his home ever since
the age of four. Jim is the second
of six siblings, three boys and three
girls, and comes from a strong and
respected tradition of lawyers in the
Biernat family. Governor Engler appointed James M. Biernat, Sr. to the
16th Judicial Circuit Court in 2000,
and Judge Biernat, Sr. retired from
the bench in 2010. Brother Jonathan
Biernat is a general practitioner in
Mount Clemens.
Judge Biernat, Jr. attended De La
Salle Collegiate High School in Warren, Michigan, graduating in 1987.
At De La Salle he was very active in
sports, participating in football, baseball and track. His academic pursuits
then led him to Hillsdale College in
Hillsdale, Michigan, where he studied
political science, ran track, and studied for a semester at Oxford University in Oxford, England. Judge Biernat
graduated from Hillsdale College in 1991.
When asked why he became a lawyer and later a judge, he
responded that as a member of the Biernat family, he was immersed in the law from a very young age. Even as a youngster
he would spend time in his father’s law office and interact with
his father’s professional colleagues, and he was “surrounded
by the law.” As a teenager he helped his father by working in
his law office.
Jim’s legal aspirations led him to the University
MacombBar.org
of Detroit Mercy School of Law, and he balanced his duties
as a Macomb County Commissioner with law school before
graduating from U of D Mercy in May of 1997. Extremely
hard-working, he attended law school at night while serving
Macomb County as a commissioner.
Jim was elected to the Macomb
County Board of Commissioners in
the latter part of 1992, and took office
January of 1993 and served for three
terms until December 31, 1998.
Jim found out that he passed the
Michigan bar exam on Halloween
1997. After law school his professional pursuits led him to assist his
father in his law office. On January
19, 1999, his 31st birthday, he joined
the Macomb County Prosecutor’s
office. While serving as a Macomb
County Assistant Prosecuting Attorney, he was initially assigned as “second chair” to the Honorable Mary A.
Chrzanowski’s courtroom.
During his tenure as a Macomb
County Assistant Prosecuting Attorney, Jim served as a member of
the Prosecutor’s Drug Unit for five
years until his appointment to the 16th Judicial Circuit Court,
prosecuting major drug offenses in the cities of Warren and
Roseville. Governor Snyder appointed him to the 16th Judicial Circuit Court in April 2011 to fill the vacancy left by the
Honorable Donald G. Miller.
If you visit Judge Biernat’s chambers, you will likely meet
his secretary Karen Ventimiglia who has assisted Judge Biernat
since 2011. Ms. Ventimiglia has been with the Biernat family
for many years, she served as Judge John M. Biernat,
Bar Briefs • October 2014
Guest Article
Sr.’s secretary while he was on
the bench and also worked for the Honorable John B. Bruff. Judge Biernat’s court clerk is
Maureen Ferguson and his court deputy is John Wallace, who also served in his father’s courtroom. As Chief
Judge Pro Tem, Judge Biernat is responsible for assisting
Chief Judge Foster with administrative matters that arise
at the Court, including new judgeship initiatives and the
renovation of the Macomb County Court building and the old
county building.
Judge Biernat presides over both civil and criminal matters and he shared that in both the civil and criminal realm,
he is fair and impartial with all parties who appear in his
courtroom. Along with the Honorable Diane M. Druzinski,
Judge Biernat presides over the Adult Drug Court, which
aims to assist people addicted to drugs to rehabilitate themselves, reinvent their lives and to become model citizens.
Because the aim of the Drug Court is to help those addicted
to drugs to achieve sobriety, they are given serious probation
sentences rather than incarceration. This program then also
reduces the costs of incarcerating these offenders to the community.
When asked about the expectations he holds for attorneys and litigants that appear in his courtroom, Judge Biernat
shared that he makes great efforts to extend courtesy and professionalism to them, and that he expects the same in return.
Judge Biernat also states that he finds the most rewarding
aspect of being a judge to be presiding over the Adult Drug
Court, and being able to witness a person who has been addicted to drugs, unemployed or facing other challenges succeed in turning their life around. While such occurrences
are rare, Judge Biernat noted that they are not impossible,
and it is very worthwhile to be a part of that experience.
Judge Biernat shared that he finds one of the challenges of presiding over a civil and criminal docket to
be that on any given day, he is required to juggle a very
busy docket consisting of settlement conferences, trials,
criminal sentencings, and wearing the many hats that such
diverse legal matters require.
On a lighter note, Judge Biernat enjoys sports, and currently participates on the lawyer’s softball league. He also
describes himself as a new golfer and shared that he is in
need of some golf lessons. One of his most
MacombBar.org
20
enjoyable pastimes is coaching his sons’ sports teams. Judge Biernat,
of half Italian and half Polish ancestry, shared that
his favorite foods are homemade ravioli, homemade
pierogi, and Thai food. He is also a voracious reader, and is
currently reading “The Goldfinch,” a novel written by Donna
Tartt. He enjoys reading non-fiction, and such material
includes politics, biographies, and history. In terms of television viewing, he is a fan of Seinfeld reruns, and right now he
also watches The Walking Dead.
When faced with the “difficult” question of who he
roots for between the University of Michigan and Michigan
State University, Jim shared that his family holds a strong
allegiance to the University of Notre Dame, where his father
attended graduate school after attending Saint Joseph’s College in Indiana. He also has a brother that attended Michigan
State and a sister that attended the University of Michigan.
However, when choosing between the two, Jim will root for
Michigan State.
When asked how being a judge has changed him as a
person, he responded that after prosecuting for twelve years,
being on the bench gave him the important perspective that
there are always two sides to every story, making him an
open-minded and impartial jurist, fair to both sides in his
courtroom. When asked what he would like his legacy to be
to the Macomb County bench, Jim stated that he would like
to be remembered as impartial and respectful of all people
that appeared before him, and that he, in turn, was respected
by all that entered his courtroom.
FORENSIC POLYGRAPH EXAMINATIONS
J. P. Carey Consulting, Inc.
CRIMINAL SUSPECT TESTING • CIVIL STATEMENT VERIFICATION
FAMILY LAW & INSURANCE ISSUES RELATED TO DIVORCE, CUSTODY, ARBITRATION
J. Paul Carey
Certified Forensic Polygraph Examiner
Retired Detective/Polygraph Examiner, Sterling Heights Police Department
Member:
American Polygraph Association
Michigan Association of Polygraph Examiners
Sterritt Office Plaza, 45100 Sterritt, Suite 102, Utica, MI 48317
(Northwest of M-59 & M-53)
(586) 323-9620
Bar Briefs • October 2014
MEDICAL MALPRACTICE
CATASTROPHIC INJURIES
BIRTH TRAUMA • WRONGFUL DEATH
“Results Matter”
ALBERT J. DIB, ESQ.
DIB AND FAGAN, P.C.
www.dibandfagan.com
DIB AND FAGAN BLDG.
25892 Woodward Ave.
Royal Oak, MI 48067
adib@dibandfagan.com
(248) 542-6300
REFERRAL FEES HONORED
AVAILABLE TO LITIGATE PENDING CASES
Bar Briefs • August 2014
Personal Injury Specialists
Proven Results for your Client Referrals
Fraser & Souweidane, P.C.
www.fsattorneys.com
10 S. Main, St., Suite 302, Mt. Clemens, MI 48046
(586) 463-0100
Classifieds
Office Space
ST. CLAIR SHORES - Premier St.
Clair Shores Nautical Mile executive office space in larger professional
building. Opportunities for the small
firm or solo practitioner (some with
shared space and amenities, all in first
class space) to 6000+ sq. ft. renovation. Plenty of parking, competitive
rates. Robin (586) 498-8400.
Downtown Mount
Clemens - For Lease 1,900 sq.
ft. office suite. 4 large private, windowed offices, Conf. room, Kitchenette, Large secretarial/filing area, Well
appointed, professional décor. Walk
to Circuit and Dist. Courts. On site
parking. To arrange a viewing, call:
Gary Housey, Oakwood Properties,
Inc. at (248) 689-111 ext. 104
St. Clair Shores - St. Clair
Shores premium office space. Professionally decorated with all the
amenities necessary for an impressive
law practice. We are able to accommodate individual offices or a small
group practice. Also, 4,000 square
feet available adjacent to the existing
law office. Call Deb Berube at
(586) 779-7810.
Shelby Twp., - In Harvard Professional Building. Van Dyke between
21 & 22 Mile. One furnished private office. Reasonable rent includes
utilities, cleaning and use of conference room. Referral work available.
Please call (586) 254-1300
Clinton Township - Garton
& Vogt PC, have two large offices in
first class suite available. All amenities
available. Call Art Garton or Kathy
Vogt at (586) 226-3100.
MACOMB COUNTY - Remodeled
office spaces and/or mail services - 9
Mile and 94 in Eastpointe. Only 15
minutes from downtown Mt. Clemens
and Detroit. Short and long term leases available. Conference rooms also
available for daily use. Call Vincent at
(586) 945-9176 or (248) 421-6131
DOWNTOWN MT. CLEMENS Two Crocker Boulevard. Single office
in Professional Suite. All Amenities
Available. Great Parking. Walk to
Court. Call Gene Casazza at
(586) 468-4400 or email
ELCasazza@aol.com
Executive office available, 15’x13’ as
well as 6’x’6 cubicle space. Includes
8:30-5 M-F receptionist, lobby area,
4 conference rooms, kitchen, printing
area, phone system, Wi-Fi, security
system, landscaping and snow removal, plenty of parking, and adjacent to
major road ways (Mound Road/M59).
Professional building with many attorneys and legal professionals. Office
is $900 per month, cubicle is $250 per
month. Please call 586-439-0181.
Referrals
WORKERS COMPENSATION and
SOCIAL SECURITY DISABILITY:
Over 30 years experience. Referral
fee. Will provide status reports. Call
Dennis R. Nettle. 1-800-575-7477 or
(586) 776-4080.
SOCIAL SECURITY and WORKERS COMPENSATION - Casazza
Law Offices - 130 years plus of combined experience with Social Security
Disability and Workers Compensation
claims. Offices in Royal Oak and Mt.
Clemens. Referral Fees. Call Gene
Casazza at (586) 468-4400 or email
ELCasazza@aol.com
Kevin M. Kain of the Law Firm
Levine Benjamin has obtained over
1,500 workers compensation settlements for disabled workers over the
last 20 years. Will pay referral fee and
provide status reports. Call Kevin M.
Kain at 1-800-675-0613.
Accepting Referrals for any
matters concerning bankruptcy, including initial filings of Chapters 7,
11, or 13, as well as adversarial litigation relating thereto. Call Gerald L.
Decker at (586) 532-1122.
Services
Comprehensive Counseling
Services available for attorneys
and their clients. Orlando Counseling Services PLLC provides quality confidential psychotherapy which
will help you cope with stress, and
ma the changes you want, to improve
your life. And we can help you with
your difficult clients! Specialization
in couple/family counseling and grief.
Offices in Shelby Township and Lake
Orion. Call Laurie Orlando at
(586) 405-1603 for a free
consultation.
Student Loans & FDCPA - Provides consultation and assistance in all
matters of Student Loans and Fair Debt
Collection Practices, including student
loan reinstatement, deferments, default,
collection and litigation. Referral fee.
Employment
Opportunity
PART TIME LEGAL SECRETARY
WANTED - Experienced. Mon-Fri
10am-3pm preferred but flexible days
and hours possible. VandeVrede and
Lavigne PC. Call Jim Lavigne at
(586) 469-1900 or
email jim@vvlpc.com.
FOR SALE
BUILDING - Building currently
being used as a law office. Excellent
visibility in high traffic area fronting
16 Mile Road near Gratiot. Excellent
location with easy access to courts.
Available with law library and certain
furnishings and equipment. Also very
good location for potential walk-in
clients. Reasonable priced. Contact
Carol Paton at Coldwell Banker
(586) 649-6000. Inquiry regarding
furnishings, library and equipment
please call Gary at (586) 246-9751.
Employment
Wanted
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Law Offices of
Sean Patrick Cox
Paying referrals for cases in the
Grand Rapids & Surrounding West
Michigan Communities
3351 Claystone S.E. Suite 111 • Grand Rapids, MI
49546-5781
Sean.Cox@SeanCoxLaw.com • SeanCoxLaw.com
Cell: (616) 558-5745 • Fax: (616) 940-4183
(616) 942-6404
HartkopRooney Law
Your Macomb County Injury Lawyers
Automobile Injury Claims First and Third Party Claims
Premises Liability
Medical Malpractice
Social Security Disability
Referrals Guaranteed in Writing
Jeff Hartkop
Pat Rooney
Zack Hartkop
1-800-GET-JEFF • (586) 286-1540
42490 Garfield Road, Suite 210, Clinton Twp., Mi 48038
Macomb County Bar Association
40 N. Main St., Suite 435
Mt. Clemens, MI 48043
MacombBar.org
MCBF History Book CluB
The Macomb County Bar Foundation is pleased to announce another History Book Club
meeting in partnership with Barnes and Noble.
The history book club focuses on connecting modern day living with constitutional history,
the courts, the Civil War, World War I, World War II, and other significant historical events
through select works of literature and featured speakers.
Members of the legal community and the public at large are invited to participate in this
monthly series of historical exploration.
Barnes & Noble • 14165 Hall Road
Shelby Township, MI.
Every second Thursday of the Month.
October 16, 2014
7:15pm
Book: “Thirteen Days: A Memoir
of the Cuban Missile Crisis”
by Robert F. Kennedy
Guest Speaker:
John Lind, Director of the Arsenal of
Democracy Museum