Michigan Criminal Lawyers Blog

This time - it's the Lansing based Michigan Attorney General's turn to take a whack at the family of former Detroit Mayor Kwame Kilpatrick.

Nneka Cheeks, the former Mayor's cousin, faces criminal charges of embezzlement, a felony punishable by up to 5 years in prison and / or a fine of $10,000.00 or 3 times the value of the money embezzled, whichever is greater, MCL 750.174(4)(a) and/or (c).

The crime occurred while Cheeks was working in the Mayor's office. The victim is the Manoogian Mansion Restoration Society, a charitable organization.

The Attorney General claims that Ms. Cheeks stole approximately $19,000.00 from the non-profit organization. She allegedly spent the funds on luxury goods and services.

Additionally, the criminal defendant is charged with the crime of criminal enterprise, commonly known as "Racketeering", MCL 750.159i and 750.159j, a felony punishable by 20 years in prison. That charge suggests that Cheeks did not act alone.

The crime of embezzlement is comprised of several necessary elements. Those are that (1) The criminal defendant either occupied or acted in a fiduciary relationship; (2) That the defendant obtained possession or control of the property through that special relationship, and; (3) That the defendant wrongfully converted or appropriated the property with (4) Intent to defraud, and; (5) Without the consent of the principal.

The elements of racketeering are: (1) Knowingly acquiring or maintaining an interest in, or control of; (a) A criminal plot, or; (b) Property used or intended to be used in such a plan, directly or tangentially; (2) Through a method or racketeering operation that had; (a) The same or a substantially similar object, result, participants, dupe, or method of commission, or was otherwise interrelated by distinguishing characteristics, which were not merely isolated acts; (b) Amounting to or posing a threat of continued criminality, and; (c) Which was committed for profit.

If any one of the necessary elements lacks a factual basis, the deficient charge must be dismissed in its entirety.

The sheer complexity and incomprehensibility of the Michigan racketeering statute will undoubtedly give Cheeks' Southfield criminal defense lawyer a leg up in the litigation, at least with respect to that charge, primarily because the prosecution carries the burden of proof throughout the entire trial.

And it is that reality which may land the criminal defendant an opportunity to turn the other cheek--and accept an offer to plead to a vastly reduced charge.

Kilpatrick's Cousin Charged With Embezzlement, WXYZ / ABC Action News, April 28, 2011

If you find yourself repeating, from time to time, the following phrase: "Now, where did I put that $100,000.00 again"? You may be in serious need of a good to-do list. And don't forget to remember to remind yourself that there's an App for that!

One thing that the victim in this embezzlement case didn't forget to do, however, was to seek a criminal complaint for the crimes of Embezzlement (MCL 750.174) and Using a Computer to Commit a Crime (MCL 752.796 and MCL 752.797) through the Kent County Prosecutor's Office in Grand Rapids, Michigan. Under the circumstances, both felonies are punishable by up to 20 years in prison.

According to attorney Gary McInerney, his former secretary, Wendy Bernard, stole the money while working as a secretary for McInerney's law firm. The incident allegedly occurred in 2004.

Which raises the question of legal defenses. One that should be leaping off of the page for Ms. Bernard's Grand Rapids criminal defense lawyer is the Michigan statute of limitations. That is because the residual statute of limitations for crimes (not specifically subject to other such statutory deadlines) is 6 years, MCL 767.24(5).

As always, every case is fact-driven. Thus, if Ms. Bernard was residing out of state, the statute of limitations might not apply in this case, due to tolling.

Another principle which might defeat the criminal defendant's defense in this matter is the doctrine of fraudulent concealment, MCL 600.5855. Under the civil law, if the person whom caused the harm actively and affirmatively concealed the matter from the victim, the dupe may have an additional two years to act, from the time of ultimate discovery. Since there are no appellate level criminal cases citing that statute, however, It is not clear whether that principle applies to criminal prosecutions.

What is clear is that silence alone is not sufficient to support a claim of fraudulent concealment, Bradley v Gleason Works. On the other hand, a fiduciary relationship is an exception to that deficiency, Brownell v Garber.

Under the common law, the action accrued when the offense was committed and the victim knew or should have known that he had been duped (or harmed, as the case may be). Recently, however, the Michigan Supreme Court in Lansing effectively abolished the second prong of common law accrual (actual or constructive knowledge). Thus, in accordance with the provisions of MCL 600.5827, the action accrues when the offense was committed, plain an simple. Trentadue v Gorton.

Let the games begin!

Woman Charged With Embezzlement From Law Firm, WZZM13 ABC News, April 23, 2011

The Wayne County Prosecutor's Office in Detroit has charged a Lincoln Park, Michigan man--Ricky Netherton Jr., 28--with "Possession of Child Sexually Abusive Material", MCL 750.145c(4), a felony carrying up to 4 years in prison and fines of up to $10,000.00. Upon conviction, the defendant's name and address must be listed on the Sex Offender Registry, pursuant to MCL 28.723, et seq. The site is open to public viewing.

The criminal defendant is additionally charged with "Using a Computer to Commit a Crime", MCL 752.796; 752.797(3)(d), a felony carrying up to 7 years in prison.

The arraignment was held at the Wyandotte District Court. The Preliminary examination is scheduled for April 28, 2011. A preliminary examination is a gate keeping function. It is an adversarial court hearing where the prosecutor must establish that each of the necessary elements of the charged crime is supported by at least some evidence.

The elements of a crime are like the wheels on a car--if one is missing, the car cannot go forward.

The ultimate goal of Netherton's detroit criminal attorney at the preliminary examination is to successfully oppose the prosecutor's evidence and obtain a dismissal based on lack of evidence.

To that end, the criminal defense lawyer may have a lot to work with. That is because, what lit the fuse and brought Mr. Netherton to the attention of the Police, was a domestic disturbance.

The incident occurred at Netherton's apartment. The police were called and responded to the scene shortly thereafter. We deduce from various reports that Netherton was absent when the officers arrived. Nonetheless, it appears that the police were invited into the apartment and informed that Netherton was storing child pornography on his computer.

A password blocked access to the data, so the police sought and obtained a search warrant. Ultimately, forensic computer experts were able to extract the illegal child sexually abusive material.

No doubt the criminal defense attorney will mount a two-pronged attack: First, the spouse or other occupant involved in the residential malay clearly had an axe to grind. That is born out by the fact that she finally alerted the police to what she knew about the computer images--on the heels of a fight with Netherton.

That angle is important because, under Michigan law, evidence of an interest in the outcome of the litigation, and evidence of hostility toward the defendant, may be considered by the jury as evidence that the witness telling the tale is not credible, People v Glover and People v Borowski .

That is argument is critical, because all evidence comes from the mouths of the witnesses. Moreover, the presiding judge will instruct the jury that, if they find that the witness testified falsely on a material matter, they may reject the witness' testimony in its entirety.

Another tack which might turn the criminal trial Netherton's way is the argument that Mr. Netherton was not the only occupant of the residence.

After all, the prosecution bears the burden of proof. Moreover, that burden never shifts to the criminal defendant. In fact, the criminal defendant is never required to prove anything in a criminal trial (unless he raises certain affirmative defenses, in which case he may be required to produce at least some evidence in support of each element of those defenses, at which point the burden of proof shifts back the to prosecutor).

The burden of proof in a criminal trial is "proof beyond a reasonable doubt". In other words, if a jury is left with a reasonable doubt as to the criminal defendant's guilt, it must return a verdict of not guilty.

An interesting footnote to the judge's jury instruction on burden of proof is that the instruction is completely silent as to the size of the doubt. Thus, it can be truthfully and accurately stated by the criminal defense attorney in closing argument that even a small doubt can amount to a reasonable doubt, if it arises out of the facts or lack of facts brought out at trial.

Another compelling and effective defense argument is that there are only two possible verdicts in a criminal trial (except where the issue of legal insanity is in play): Guilty or Not Guilty. Contrary to popular myth, there is no such verdict as innocent. Hence, a jury may be obligated to find a criminal defendant not guilty, even if they remain skeptical of his innocence.

No doubt the future looks grim from the window of Netherton's cell in the Wayne County Jail. But there is also plenty of room for optimism, considering the weaknesses of the prosecution case.

Riverview Man Accused Of Possessing Child Pornography, Suggestive Adult Photos, The News-Herald, April 20, 2011

If you've ever doubted that the Tenth Commandment ("Thou shalt not covet thy neighbor's house...etc.") lacked sufficient gravitas for inclusion in the top ten, this edition of the blog may change your mind.

Reportedly, at about 5:45 a.m. on or about February 5, 2011, Jeston Lawrence, 28, of Lansing - arrived at a random Lansing area apartment, began banging on the door and demanding entry.

Awakened by the commotion, the 64 year old man of the house cracked the door to investigate--at which point the intruder barged into the residence, exclaiming that he lived there. A struggle ensued in which the intruder repeatedly struck the gentleman and forcefully shoved his elderly wife.

The male resident warned that he had a gun and ordered Mr. Lawrence to leave. Lawrence ignored the warning and continued to assault the duo. Finally, the resident shot the intruder at close range and killed him.

Because the matter was technically a "homicide" (any grossly negligent, reckless or intentional killing of another person), the Ingham County Prosecutor's Office was required to launch an investigation into the propriety of the shooting. Ultimately, the Prosecutor concluded that the shooter acted in lawful self defense.

Lawrence's mother, Ethel Richards, 51, of Brant, Michigan, disagreed with the Prosecutor's assessment, emphasizing that her son was not prone to violence and probably thought that he was at the home of a friend. As we shall see, Mr. Lawrence's state of mind has virtually nothing to do with the outcome of this case.

Supporting the Prosecutor's conjecture is the statement of one of the intruder's friends. That individual reported that Mr. Lawrence had been intoxicated earlier that evening and that he was staying at the apartment of an acquaintance located in the same complex.

All of which raises the issue of self defense. Michigan is a so-called "Stand your ground" state. That means that an individual who has not or is not in engaged in the commission of a crime may use deadly force to protect himself from imminent death or great bodily harm, at any location where he has a right to be, without any duty to retreat. Where warranted, that fact pattern amounts to a complete defense to a criminal charge within the murder and assault & battery categories--including felonious assault and assault with intent to do great bodily harm less than murder.

Key to the defense is the defendant's honest and reasonable belief that deadly force was necessary to repel a potentially deadly or seriously injurious attack. Thus, proof of the attacker's actual intent or plan is not required--in fact, once the requisite state of mind of the accused has been established, the attacker's actual intent or plan becomes irrelevant.

On the other hand, hypothetically, if the shooter initiated an unlawful assault & battery against Mr. Lawrence, and if Lawrence was lawfully defending himself from same, the shooter's claim of justifiable homicide might fall flat at trial.

The outcome of any such matter always turns on the unique facts of the case. Since Mr. Lawrence was deceased, the apartment residents were the only informants. In the mind of the Prosecutor, bruises consistent with the residents' information confirmed their version of the events.

And with that, the Southfield criminal defense lawyer representing the party whom fired the handgun is on solid ground--because few fact patterns say "not guilty" like a mutual affray between two or more grappling combatants.

No Charges In Lansing Home Invasion Shooting, Lansing State Journal, February 5, 2011

Edward James Bruner, 58, an Ann Arbor Tae Kwan Do instructor, has been charged with the sexual molestation of a 12 year old child. Reportedly, the incident took place on I-94 near Chelsea.

Compounding Bruner's plight is a second claim of sexual abuse by another minor.

Though few details are available at this early juncture, the fact that the arraigning judge denied bail fills in blanks.

Generally, the average criminal defendant is entitled to bail and release from custody, pending trial. Under a related court rule, however, a judge may deny bail in cases involving criminal sexual conduct 1st degree (CCS 1).

CSC 1 is a felony carrying up to life in prison. It is applicable to a range of circumstances, including cases where the criminal defendant engaged in sexual penetration with a minor under the age of 13.

The strengths and weaknesses of Bruner's case will turn on the quality of the evidence. Those facts will emerge at the preliminary examination. That is an adversary proceeding which takes place in the district court.

At that hearing, the prosecutor is required to produce evidence in support of each of the necessary elements of the charged offense. In this case, the necessary elements of the offense are (1) sexual penetration (2) of a person under the age of 13. If even one element of the offense lacks a factual basis, technically, the judge must dismiss the case.

On the other hand, where each element is supported by at least some evidence, the judge is required to transfer the matter to the higher court for trial. In other words, at the lower court level, the hearing is not a trial, but a gate keeping function.

The criminal defense lawyer is entitled to cross examine and challenge the prosecution witnesses. Undermining credibility rarely results in a dismissal at the preliminary examination level, because the applicable burden of proof is so low. If the credibility of an indispensable witness is completely lacking, however, according to the Michigan court of appeals and the Michigan supreme court, a dismissal on that basis may be justified.

Because over 90% of all preliminary examinations in Michigan result in transference to the trial court, most criminal defense lawyers handling such cases use the preliminary examination for information gathering purposes. Another goal of the criminal defense lawyer is to lead the witnesses into making various statements that may prove helpful to the criminal defendant at trial.

The fact is, all testimony comes from the mouths of the witnesses (even most documents, photographs and things must be introduced into evidence through the testimony of knowledgeable witnesses).

Thus, the quality of the testimony at trial is critical. That is due in part to an instruction that the judge reads to the jury at the beginning and the end of every trial. In a nutshell, the judge informs the jury that they may reject witness testimony which the jury deems to be lacking in credibility.

The judge also gives the jury a list of circumstances that might indicate incredibility. Prior inconsistent statements are included in that list.

At trial, the lawyers possess written transcripts of the preliminary examination. Where a witness gives a different answer at trial to a question that he answered at the preliminary examination, the criminal defense lawyer is within his rights to highlight that discrepancy in closing arguments.

The prosecutor's burden of proof at trial is "beyond a reasonable doubt". A reasonable doubt is a doubt based on the facts or lack of facts adduced at trial. The size of the doubt is not mentioned in the jury instructions. If follows, therefore, that even a small doubt may suffice as a reasonable doubt--and compel a verdict of not guilty.

And as most prosecutors and criminal defense lawyers know, few things shout reasonable doubt like dubious witness testimony.

CHELSEA: Tae Kwon Do teacher accused of molesting child on I-94, Chelsea Standard Newspaper, January 20, 2011

"If you want to make money--go where the money is" replied fabulously successful Wall Street stock broker Joseph Kennedy to the inquisitive young business neophyte.

Kennedy's profound insight has inspired generations of entrepreneurs all over the word. Including, it appears, at least one enterprising Michigander.

'If you want to make money plowing snow--go where your competitors store their snow plows, steal the equipment on the eve of heavy snowfall, and then solicit their stranded customers' reasoned Saginaw snow plow operator David C. Robison.

And its precisely that misinterpretation of Kennedy's business acumen which landed Robison in front of a judge who arraigned him on three counts of felony theft, each a five year offense.

Perhaps the criminal defense lawyer can advocate for mandatory enrollment in business college, in lieu of jail. Stay tuned!

Police: Saginaw landscaping employee stole snow plows from competing businesses, The Saginaw News, January 15, 2011

Finally, the verdict is in. An Eaton County jury in Charlotte has found William Bryan Polston, 39, guilty of multiple counts of Criminal Sexual Conduct in the 1st Degree, a felony carrying up to life in prison. Polston is a former Okemos, Michigan High School teacher. He had been accused of engaging in sexual relations with a student between the ages of 14 to 16.

Under traditional incarnations of the Criminal Sexual Conduct statute, the ultimate penalty (up to life in prison) was applicable in cases of forceable rape. Michigan's current statute, however, sets forth a litany of grounds for charging under the CSC 1 statute. Included in that list is sexual contact involving penetration, between a teacher and a student who is between the ages of 13 and 16, and who is enrolled in the teacher's school. Neither consent nor mistake are legal defenses. That is the net that snagged Polston.

The sexual encounters in this matter occurred in 2003 and 2004. Today, the victim is 22.

Many non-lawyers are surprised to learn that, in criminal trials, the side that presented the stellar lawyering frequently finds itself on the losing end, while the side presenting the more pedestrian case may wind up with a win. The reason for that paradox is simple: It's easier for the shooter to hit the bullseye when he's standing 6 inches from the target. An apt metaphor for what happened in the Polston trial, which, as we shall see, was an air-tight case for the prosecution.

Polston was represented by one of Lansing's best criminal defense lawyers. In the Blog's opinion, the defense strategy was a near textbook example of excellent lawyering.

By the end of the trial, the litigation chessboard looked like this: The prosecutor's main gambit was to hang the criminal defendant with his own words. To that end, the prosecutor used telephone conversations between Polston and the victim, which the victim had surreptitiously recorded. In those conversations the victim asked the defendant to explain why he sought sex with her and why he pursued the relationship.

Polston replied "I have no justification" and "I had the ability to say no, and I didn't". Although falling short of a full blown confession, the statements were usable by the prosecutor as 'party admissions' (a legal term of art).

In a nutshell, a confession is a knowing and voluntary statement that supports all of the necessary elements of the charged crime. The elements of a crime are like the wheels on a car--if one is missing, the car won't drive. In contrast, an admission is a statement by the defendant, whether oblique or unequivocal, which can be interpreted as supporting some (but not all) of the elements of the offense, or which may tend to undermine the defendant's credibility (where the defendant testified at trial).

Couple those principles with a jury instruction which states that, if the jury finds that the defendant actually made the statement, the jurors may give the statement whatever weight [they] think it deserves--and you have a formula for disaster for the defense team.

So what's a competent criminal defense lawyer to do? First and foremost, shift the jury's focus to evidence which tends to tarnish the victim's halo. And of course, few if any strategies get the job done like undermining witness credibility. That is because all evidence comes from the mouths of witnesses (even most documents, photographs and things must be admitted into evidence upon witnesses testimony that the item is what it purports to be). Thus, in the final analysis, credibility is almost always the linchpin upon which the outcome of the trial will turn.

To that end, Polston's defense lawyer deftly turned to the matter of 'witness interest', a principle of evidence. Under current Michigan case law, a jury may view a witness's interest in the outcome of the litigation (or other litigation) as evidence that the witness's testimony is motivated by something other than pure honesty. Another jury instruction informs the jury that they may reject all or part of the testimony of a witness who the jury deems to have testified falsely.

Here, the defense attorney established that, before the matter was ever brought to the attention of the authorities, the victim had retained a lawyer to wring a big payday out of the defendant. Moreover, the jury was informed of the amount of that resolution: $70,000.00. The implication was that the victim concocted the story for pecuniary gain.

Supporting that theory was testimony by the very lawyer who set up the monetary settlement. The attorney confirmed that the victim chose not to push for Polston to be banned from teaching, because that outcome would have left him unable to pay. Since a teacher found to have sexually molested an underaged student must be terminated, a reasonable interpretation might be that the information was withheld from school officials for pecuniary gain (reporting is mandatory under certain circumstances).

And once the matter was finally reported, the informant was not the victim, but another teacher who caught wind of the tale--after the settlement deal was struck.

The potential blowback for the criminal defendant was that the jury would see the payout as hush money, a transaction which could be interpreted as evidence of guilt. The defense lawyer softened that angle, however, by explaining to the jury that defendant's only motivation was to protect his family from public scorn.

Though the statute provides for up to life in prison, on judgment day, the judge must consult the Michigan Sentencing Guidelines in handing down the penalty. The purpose of the guidelines is to ensure uniformity and equal justice in sentencing.

The guidelines provide a formula which quantifies the unique facts of the case. Points are assessed for the various details. The points are distilled into a score, which pinpoints the final proposed sentence. The judge must abide by that recommendation, unless substantial and compelling reasons warrant either an upward or a downward departure.

A cursory review of the applicable sentencing guidelines reveals that even the least egregious version of this crime warrants prison time. And with six proven violations hanging over his head, Mr. Polston would be well advised to engage an experienced Southfield criminal appellate lawyer.

Ex-Okemos Teacher Guilty Of Sexual Misconduct, The Lansing State Journal, January 14, 2011

Demonic. Depraved. Heinous. Those are just a few of the printable comments that the Blog has overheard in response to news of the assault on a 13 month baby in Commerce Township.

At first blush, the details are like a scene out of the Exorcist. Kirsty Leigh DeHuff , 26, her husband and their 13 month old son were sitting in the car in the residential driveway when, suddenly, Mrs. DeHuff exclaimed that she 'had something to do', and with that, dashed into the couples' home, clutching her son.

Mr. DeHuff followed and was no doubt aghast at the scene that met him upon entering the residence. Apparently, Mrs. DeHuff had picked up a knife and stabbed her own baby--puncturing his lung.

Understandably, the public tends to see such a defendant as an irredeemable monster. But after digging deeper into the facts, the Blog finds itself in complete sympathy with, and fully supportive of, the entire DeHuff family.

Our research reveals that, as far back as the 16th Century, the medical literature recorded incidents of otherwise loving new mothers killing their own babies.
In fact, the phenomenon has been noted worldwide, for thousands of years. Though it was an inexplicable mystery, even in ancient times it was met with a measure of sympathy. No doubt such a radical departure from the maternal instinct signaled sickness--not evil.

Modern medicine now knows that the phenomenon is an organic brain disorder. What drives the bizarre behavior has nothing to do with malevolence and everything to do with a chemical imbalance in the brain. And today, it has a name: Post-partum depression and post partum psychosis.

Hormonal fluctuations associated with pregnancy are what trigger the syndrome. Armed with that knowledge, many obstetricians now educate their patients about the condition. The hope is that the informed patient will turn for help at the first signs of symptoms. Nonetheless, when an adult stabs a baby, the police must be called in.

Ultimately, the Oakland County Prosecutor in Pontiac filed a criminal complaint against Mrs. DeHuff . The charge was Assault With Intent To Commit Murder, a serious felony punishable by up to life in prison.

Like all crimes, that particular offense is comprised of necessary elements. Under the law, if even one element lacks a factual basis, the entire charge must be dismissed. Because a mental condition may have played a role in the incident, the necessary element most vulnerable to attack in this matter would be the specific intent component.

That said, as a practical matter, the only possible defense under the circumstances would be legal insanity. In a nutshell, the defense is based on the reality that a mere act rarely, in and of itself, amounts to a crime. For example, a student accidentally walking into the neighbor's adjacent, identical dorm room has not committed the crimes of entry without permission or breaking and entering--because there was no criminal intent.

The averment of legal insanity can amount to a complete defense to a specific intent crime. The statutory definition of legal insanity is: "A substantial disorder of thought or mood that significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life." Psychiatrists take that to mean psychosis.

Another related statute provides that, if the defendant lacked the capacity to appreciate the nature, quality or wrongfulness of his conduct, or to conform his conduct to the requirements of the law--due to a substantial disorder of thought or mood, then the Defendant must be found not guilty by reason of insanity.

DeHuff's East Lansing based criminal defense lawyer used expert psychiatric witnesses to provide the factual basis in support of the claim. In the absence of any prosecutorial counter evidence, the Pontiac trial judge was compelled to enter a verdict of not guilty by reason of insanity.

Consequently, the law requires that DeHuff be committed to the Center for Forensic Psychiatry in Ypsilanti for no less than 60 days. The ostensible reason for the commitment is examination, diagnosis and treatment. She must remain there (or at another facility), until her psychosis abates and/or she no longer poses a danger to herself or others.

Mom found insane in baby stabbing could return to
family soon, The Daily Tribune, January 5, 2010

A teacher at a greater Lansing Catholic school has been accused of sexual assault against two boys under the age of 13. Christopher DeMorrow of East Lansing faces charges of Criminal Sexual Conduct, 2nd degree, a 15 year felony--and Gross Indecency between males, a 5 year felony. DeMorrow has since relocated to Ludington.

Conviction for the 15 year felony charge requires publication of the perpetrator's name and address on the Sex Offender Registry.

DeMorrow is also charged with of domestic violence against his wife. That matter arose prior to the criminal sexual conduct charges. Ironically, the Blog hints that the pendency of that charge may turn out to be a windfall for the criminal defendant, and may contribute to a not guilty verdict at DeMorrow's upcoming sexual abuse trial. Stay tuned!

Reportedly, DeMorrow committed the sexual abuse offenses at his home in East Lansing. Because the matter involves minors, the Blog is unable to obtain full details. Factors which may bring the crime within the ambit of the Criminal Sexual Conduct 2nd degree statute include sexual abuse of a minor under the age of 13, or abuse of a minor between the ages 13 and 16, enrolled in a school where the perpetrator is a teacher, or abuse of minors within that second age range, where the teacher used his teaching position to gain access to, or to establish a relationship with, minors who are not enrolled in the teacher's school.

What makes the story a cliff-hanger for DeMorrow is the mercurial nature of "evidence". Many non-lawyers are surprised to learn that evidence is nothing more than the testimony of the witnesses, introduced at trial (with two inapplicable exceptions). Even items and photographs must be introduced into evidence through witness testimony. And for that reason, witness believability is the linchpin upon which every trial turns.

That said, many an "airtight" case has turned winnable for the defense once the witness testimony begins. Adding fuel to the fire is the requirement that the judge instruct the jury that they may reject testimony which they find to be lacking in credibility. The indicia of incredibility comprises a lengthy list.

If the charges allege that the abuse occurred at the DeMorrow residence, it follows that evidence placing the boys at the home is central to the Prosecution case.

A jury may doubt credibility where the criminal defense lawyer demonstrates that the witness has an 'axe to grind'. For example, if DeMorrow's wife testifies that she saw the boys at her East Lansing home on multiple occasions, DeMorrow's lawyer may force the wife to admit that she sought criminal charges against DeMorrow for domestic violence, that the couple is separated and that divorce proceedings are imminent.

Showing that the wife has an interest in the outcome of those other proceedings, and that casting DeMorrow in a bad light bolsters the wife's stance in that litigation, also undermines credibility.

Additionally, credibility may be eroded by emphasizing prior inconsistent statements. Young children are notorious for their loose usage of language. Moreover, a young teenager is rarely a match for a seasoned criminal defense lawyer. Thus, if the defense lawyer can prove that the witness answered a material trial question differently at a prior court hearing, the jury may be well within its rights to reject the witness' entire story.

For those reasons and more, once again, the Blog defers to the incisive wisdom of Yogi Berra, former New York Yankees baseball legend and one of the most revered folk philosophers of all time--who so aptly observed: "It's not over 'till it's over".

Grand Ledge Catholic School Teacher Accused Of Sexual Contact With 2 Young Boys, The Lansing State Journal, January 6, 2011

Finally, the proof is in: Love really does conquer all. And in the case of Pontiac Lawyer Nina Backon it apparently conquered - SANITY.

The Criminal Defense Lawyer showed up at the Oakland County Jail in Pontiac, claiming to be the attorney for inmate Eric WIlimowski.

But alarm bells went off when Authorities noticed that, instead of leafing through legal pads, the Lawyer's hands were busy blowing kisses at the prisoner.

Deputy Sheriffs searched the attorney and seized her cache of controlled substances.

The attorney now faces serious felony charges that could land her in prison for up to 9 years. And with two prior drunk driving convictions, incarceration is likely.

All of which raises the question of legal defenses. One that virtually leaps right off of the page is legal insanity. Another which might at least mitigate the charges is an assertion that the contraband was not intended for her boyfriend - the prisoner.

Attorney Busted For Smuggling Goods To Boyfriend In Jail, Fox 2 Detroit, May 12, 2010

MEMO to the the Meridian Township Police Officer who was allegedly assaulted by former Judge Beverly Nettles-Nickerson during a not-so-routine traffic stop: When Judges FLIP OUT you'd better WATCH OUT! Because - as demonstrated by Miami Judge Marilyn Milian in the video (above) - whether it be with a Judge's Gavel, an armed courtroom bailiff or a clenched fist - an angry Judge can pack a powerful wallop in more ways than one!

If the arresting Officer in the Lansing area fracas is to be believed, Nettles-Nickerson's weapon of choice in this case was bare knuckles - which led to a charge of Resisting and Obstructing a Police Officer, a felony.

Every felony defendant is entitled to an initial hearing called a Preliminary Examination. That is an adversary, evidentiary proceeding where the Prosecutor must produce evidence in support of each of the necessary elements of the charge. Where every element is supported by evidence, the Presiding Judge must transfer the case to the Circuit Court for trial. Where even one element lacks an evidentiary basis, however, the entire charge must be dismissed.

In this case, a visiting Judge from Jackson, Michigan conducted the hearing. The examining judge found sufficient evidence to support the charges and passed the case on to the Lansing trial court.

The elements of this particular crime are (1) Knowingly and willfully; (2) Obstructing; (3) Any authorized officer; (4) In the performance of his duty.

Under the circumstances, potential affirmative defenses to this charge include the following: (1) The Defendant's action was a mere reflex; (2) Due to a psychotic loss of contact with reality, the Defendant did not comprehend that the victim was a Police Officer (i.e., legal insanity), and possibly; (3) Self defense.

Formerly, a citizen could use reasonable force to resist an illegal arrest, but the Legislature in Lansing abrogated that defense in 2002.

As we know from prior RLG blogs on the topic of legal insanity - society at large views that defense with cynicism. Often the only way for a Criminal Defense Lawyer to overcome that attitude is to present the Jury with a provable history of bizarre or psychotic behavior.

In this case, the Defendant's lawyers may be able to mine that critical evidence out of the ex-Judge's mountain of previous legal troubles. Though that strategy may not be the ex-Judge's preferred way out of her newest legal mess, the defense of legal insanity may be her only realistic hope of avoiding a felony conviction.

Former Ingham County Judge Nettles-Nickerson To Stand Trial, Lansing State Journal, April 17, 2010

Few crimes are more heinous than first degree murder. One that is definitely in the running for that gold medal, however, is torture. And while we've all seen TV news reports of family members forgiving their loved one's killer at his final sentencing, Team RLG cannot recall ever having witnessed any family granting forgiveness for the crime of torture.

Perhaps that is because we reflexively assume that it takes a unique breed of human to commit that act. A person who is in every meaningful way - outside of the pale of the human family. A monster.

Those are some of the societal perceptions that make it so difficult for a criminal defense lawyer to represent a defendant facing those charges. Nonetheless, the lawyer for 24 year old Peter Dabish, the so-called millionaire son of Powerhouse Gym co-founder Norman Dabish, must now climb that very mountain.

Peter Dabish was taken into custody just days ago, for the brutal murder and torture of Dabish's long time friend - 23 year old Diana Demayo of Novi, Michigan. Dabish now sits in a Detroit Jail, awaiting his April 20th Preliminary Examination.

TV news reports suggest to Team RLG, however, that the case is far from air-tight. One past victim of Dabish's rage told a Channel 2 Fox news reporter that blood vessels in Dabish's forehead and neck were bulging to the bursting point while Dabish unleashed a tirade of threats against that prior victim for merely establishing a potentially competing gym in the City of Hamtramck. Fortuitously, that very news interview could contain the seeds of multiple legal defenses.

Two that come to mind are "roid rage" (a fit of uncontrollable rage induced by ingestion of anabolic steroids) and legal insanity.

For reasons of pubic policy, the defense of voluntary intoxication was abrogated in 2002 by an Act of the Michigan Legislature in Lansing. Nonetheless, vestiges of the former defense remain.

Every criminal charge is comprised of multiple components, known as 'necessary elements'. One such element common to both first degree murder and the crime of torture is specific intent. Voluntary intoxication (by voluntary consumption of a legally obtained substance) may, in fact, negate the element of specific intent - thereby resulting in a verdict of not guilty or, in a case where the Jury has been instructed to consider lesser included offenses, mitigating the charges to a lower level.

The defense strategy would play out like this: At trial, the Prosecutor must prove each element beyond a reasonable doubt. Hence, where there is a reasonable doubt of any size - big or small - with respect to any one of the necessary elements of the charge, the Jury must return a verdict of not guilty.

If the remaining elements spell out another (typically lesser) crime - the Jury may find the Defendant guilty of that other offense, instead. As we shall see - the benefits may be huge.

A defense based upon involuntary intoxication, on the other hand, would come within the ambit of the Defense of Legal Insanity. In a nutshell, the elements of that defense are mental illness causing inability to conform behavior to the requirements of the law or inability to appreciate the wrongfulness of the conduct in question.

Mental illness is defined as 'a substantial disorder of thought or mood which significantly impairs judgment, behavior, perception of reality or basic life skills'. Psychiatrists interpret that statutory language to mean psychosis. Thus, evidence of uncontrollable rage, loss of contact with reality or delusions and / or hallucinations generated by mental illness - could lead to a verdict of not guilty by reason of insanity. Team RLG has learned over the years that, in a close call, a prior history of similar bizarre behavior will often tip the scales in favor of a finding of legal insanity. In this case, all of the pieces of the puzzle seem to be in place.

Reportedly, the victim was killed by 8 blows to the head - administered by 'another person' (Coroner-speak for murder). The Defendant called the Police to report that Ms. Demayo had died of an overdose. The responding officers found, instead, the gory crime scene, with the victim covered in blood and blood spatter on the Defendant's clothing.

There is nothing in the available reports to indicate that the Defendant confessed or even made any admissions. And all that adds up to an outcome that has the Defendant avoiding a conviction for first degree murder.

Judge Denies Bond For Son Of Powerhouse Gym's Founder Accused Of Murder, The Detroit News, April 8, 2010

It is perhaps the rarest bird in the Litigation Jungle: An Order for a New Trial on the heels of a conviction for First Degree Murder. It is an action that has been driven to near extinction, due in large part to the fact that Michigan state judges are elected - rather than appointed for life, like federal judges.

Because of its potential to alienate the electorate, the decision to overturn a jury verdict can only come from an unshakable reverence for justice. Few elected judges have the courage to take such an unpopular action, choosing instead to duck the blow-back by kicking the can down the road to the Court of Appeals.

But one Michigan judge is never afraid to do justice: Battle Creek Judge Conrad Sindt. Yesterday, presiding by appointment in Coldwater, Michigan, the Judge granted a Defense Lawyer's motion for a new trial - and set aside Defendant Thomas Foley's conviction for First Degree Murder.

The saga began on February 7, 2009. The Defendant's wife, DeeDee Foley, then 41, was shot to death in the couple's residence, while showering. Thomas Foley claims that he returned home that day from an outing and found his wife dead in the shower stall.

At trial, Foley's young sons testified that, on the day of the homicide, while outside romping on the grounds, they heard a 'loud sound' coming from the house. Foley's explanation was that he had dropped a window behind the residence - which made a loud noise.

The Defense Lawyers argued at trial that the evidence pointed to a burglary gone awry. Prosecutors asserted that the scene was staged by Foley.

In support of the Defense theory, witness Kenneth Brownell testified at trial that he saw an unfamiliar white car leaving the Foley home on the day of the incident, at a time Foley was elsewhere.

The Judge's ruling focused on the emergence of supplemental information. Under the law, a motion for a new trial based on a claim of new evidence, must demonstrate that: (1) The evidence is newly discovered; (2) that it is not cumulative; (3) that a different result is probable at a second trial, and; (4) that the Defense Lawyer, with reasonable diligence, could not have discovered and produced the new evidence at trial.

Ironically, that rule comes, in part, from the Michigan Supreme Court's decision in the case of People v Cress (yet another Battle Creek area murder case). Recall from previous RLG blogs that a US Senator, together with two Police Officials who helped convict Mr. Cress - have joined forces and are now fighting for Mr. Cress' freedom. Newly discovered evidence is also central to that battle, as well.

The new evidence in the Foley case surfaced when witnesses Janette Moor and Jacklyn Gibson came forward and said that, on the day of the murder, they observed suspicious vehicles at the Foley residence. Again, at the time, Foley was at a different location.

The Judge emphasized that, because the Prosecution case lacked direct evidence, the new information was likely to yield a different result at trial. The Judge also noted that the new evidence dovetailed with the Defense theory that Mrs. Foley was killed by intruders.

Prosecutors have already vowed to appeal Judge Sindt's order for a new trial. Team RLG predicts that a central Prosecution argument will be that the evidence is merely cumulative. Stay tuned for new developments.

Prosecutors to Appeal New Foley trial, Battle Creek Inquirer, March 24, 2010

Watch The Video For More Details

In 1985, a jury found Thomas Cress guilty of the 1983 murder of Battle Creek resident Patricia Rosansky. The victim was 17 at the time.

Cress, currently 53, has been locked down in Jackson Prison ever since. Now, prominent law makers and even police are strenuously advocating for Cress' exoneration. In fact, the Parole Board is conducting a parole hearing today in Jackson, to decide whether Cress should be released from prison on parol.

But high level Politicians are calling for the State to go even further. US Senator Carl Levin is requesting that Governor Jennifer Granholm issue a grant of clemency. The Senator is backed by former Battle Creek Police Chief Dennis Mullen and Battle Creek Detective Joe Newman. According to Levin, the two officers virtually threw away their careers to right this wrong.

No, neither Senator Levin nor the Police have gone soft on crime. They are reacting to a raft of evidence confirming Cress' actual innocence. Probably the most important piece of the puzzle is the confession made by a man who claims to be the real killer. That individual took and passed a polygraph test - verifying his confession. He is also suspected of committing two other area homicides. But there is even more.

Physical evidence recovered from the scene also tends to clear Cress, say police. And witnesses who testified against Cress have subsequently recanted their testimony. In support of those retractions, Police emphasize that those witnesses were vying for reward money.

The Police Officers further report that, when they initially informed the Prosecutor's Office that they believed Cress to be innocent, the Prosecutor was in possession of DNA evidence. The Prosecutor's Office, however, has subsequently destroyed those items.

Of course, there is another side to those arguments. The law views recantations with skepticism. False confessions are a confirmed phenomenon. The law regards the science of polygraphs as unreliable. For that reason, polygraph results are not admissible as evidence at trial. Most importantly, the Michigan Court of Appeals and the Michigan Supreme Court have repeatedly held that the law must give great deference and respect to jury verdicts.

Meanwhile, back in Lansing, Governor Granholm is under substantial criticism for her plan to alleviate state budgetary woes by granting early release to prisoners. We can only hope that the Governor will have the courage to set aside concerns about her own tarnished public image - and do the right thing.

Sen. Levin Backs Clemency For Convicted Killer, Detroit Free Press, March 18, 2010

The Tuscola County District Court in Caro held a Preliminary Examination yesterday for a 26 year old Sebewaing man facing 20 counts of Criminal Sexual Conduct, Third Degree - a 15 year felony.

A Preliminary Examination is an evidentiary hearing where the Prosecutor must introduce evidence in support of each of the necessary elements of every charge. Provided that all components of the charges are supported by at least a scintilla of evidence, the Judge must transfer the case to the next highest court for trial. A charge lacking sufficient evidentiary support must be dismissed at the District Court level.

The charges allege that the young man had consensual sex with a girl under the age of 16, but over the age of 13 (formerly known as statutory rape). The incidents took place over the course of several months in 2005, at the girl's mother's home in Gagetown (at the time the Defendant was 21 or 22 years old, and the young lady was 14 or 15).

The Bay City Defense Lawyer came under some criticism for a line of questioning that he pursued. Some attorneys even characterized the inquiry as "aimless". Team RLG disagrees.

Specifically, the Defense Lawyer established that he "made numerous attempts to question the alleged victim prior to the preliminary examination, but ..." the victim declined to speak to the attorney.

In a case where the only evidence is the testimony of the Victim, the Defendant's entire fate hinges on witness credibility - or lack thereof. Accordingly, both the Michigan Court of Appeals and the Michigan Supreme Court have repeatedly held that the right to explore witness credibility is indispensable to a fair trial. In fact, it is an aspect of the Right to Confront Witnesses, as guaranteed by the United States Constitution. More specifically, under current Michigan case law, evidence of hostility toward the Defense can be considered as evidence of lack of credibility.

Because the victim's consent is not a defense to the charge formerly known as "statutory rape", these cases are all too often seen as indefensible. And for that reason, Team RLG must applaud the Defense Lawyer in this matter for his ingenuity. He spotted a toehold that most would have overlooked, and exploited it to the fullest. Most importantly, he put the Prosecutor's evidence to the test - which, in the final analysis, is the very heart and soul of our American system of criminal justice.

Sebewaing Man Charged With Slew Of Sex
Crimes Heading Back To Tuscola County Circuit
Court, The Bay City Times, March 13, 2010