DETROIT – Bob Bashara was at Wayne County Circuit Court Wednesday for a hearing before Presiding Judge Timothy Kenny on an emergency motion that was filed by Bashara's attorney David Griem.
Prosecutors have obtained a search warrant ordering Bashara to submit handwriting samples in the presence of an expert. Griem filed an emergency motion today asking the court to order that he and his private investigator be permitted to be present when Bashara's handwriting samples is taken.
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Assistant Wayne County Prosecutor Lisa Lindsey objected to Griem being present for the handwriting samples and argued that there is no need and no legal basis for him to be present.
Judge Kenny ordered prosecutors to answer Griem's motion by Friday afternoon, and he will make a decision a week from today.
Must Bashara's attorney be permitted to be present for the handwriting samples?
Griem's contention that he is entitled to be present when Bashara's handwriting samples are taken is based on Bashara's constitutional right to counsel. The prosecutor argues that the defendant has no right to counsel when the handwriting samples are taken.
The Sixth Amendment right to counsel extends to all critical stages of proceedings where counsel's absence might harm a criminal defendant's right to a fair trial.
Just as the right to counsel does not extend to the gathering of blood samples or fingerprints from a defendant, the right to counsel does not extend to the taking of handwriting samples. This is because the risk of harm due to attorney absence in those situations is minimal.
The court will likely rule that Griem is not entitled to be present for the handwriting samples.
However, since Bashara has invoked his right to counsel and right to remain silent, the police will not allowed to ask Bashara any questions during this process.
It is apparent that the police are in possession of some evidence that contains an unknown individual's handwriting.
Wednesday's hearing begs the question: what evidence do the police have that they want to compare Bashara's handwriting to?