March 22, 2013

"What I Did For Love": The Serial Stalking of Ivanka Trump

His thin excuse? "I did it for love". Though the phrase is billed in thousands of songs, romance novels and movies the world over as THE magical formula for winning her heart, as we shall see--in reality, it is typically nothing more than a bad case of wishful thinking--especially when there is a court-issued no-stalking order standing between you and your dearly beloved.

Case in point: Ivanka Trump, hard boiled but gorgeous business executive and daughter of multi-billionaire Donald Trump versus lovesick, veteran stalker John Eugene Enabnit, average Joe. And as Mr. Enabnit swiftly learned within moments of attempting to approach Ms. Trump at a Doral Resort PGA golf tournament, butting heads with an old-school, curmudgeon of a New York trial court judge and a connected, powerful multi-billionaire daddy's-girl is hardly a fair fight. Lesson learned? Considering that Mr. Enabnit was on notice of all of those facts in advance - we doubt it.

We doubt it because having handled scores of Southfield criminal stalking cases we know that the line between love and obsession can be thin, indeed. And our criminal defense attorneys have learned that, once that line is crossed, few measures short of a jail sentence or a commitment to a mental hospital will serve as a deterrent.

In fact, Enabnit was a frequent flyer, in that he had previously harassed Ms. Trump at a marketing event in New York City. That incident earned him his first court issued restraining order, barring him from approaching the lady. Intervening Florida police and detectives were somewhat flummoxed, therefore, when Enabnit freely admitted that he was attempting to contact his quarry at the Doral, Florida event.

Turning to the Michigan perspective on this crime, the law protects the 'objects of desire' (a/k/a victims) in several ways. First, Michigan's anti-pursuit law prohibits both harassment and stalking. The law defines 'harassment' as non-consensual conduct or contact that would cause a reasonable person to suffer emotional distress. The test is whether most people would be upset by the conduct.

Stalking includes both on-line and off-line, unwanted, offensive pursuit, such as: (i) Following or appearing within the sight of the stalker's target; (ii) Approaching or confronting that individual in a public place or on private property; (iii) Appearing at the individual's workplace or residence; (iv) Entering onto or remaining on property owned, leased, or occupied by the individual; (v) Contacting the individual by telephone; (vi) Sending mail or electronic communications to the individual, and/or; (vii) Placing an object on, or delivering an object to, property owned, leased, or occupied by the individual.

Southfield criminal attorneys commonly focus on the emotional distress element of the offense in defending a person charged with this crime, primarily because such assertions are so debatable. Where the claim of emotional distress is based solely on the victim's bare assertion and lacks any supportive, third-party expert testimony, the claim can be difficult to prove, especially if the victim admits that she harbors intense anger toward the alleged stalker. That is because, under current Michigan legal authority, witness hostility may be considered as witness incredibility, in that it may suggest that there is an axe to grind.

Moreover, prior such convictions up the ante, and can land the convicted stalker in prison for up to 5 years.

All of which should leave us wondering: Was it really love? Or was it just obsession? Well, here are some helpful hints that we've compiled over the years that you might want to run through before surprising your beloved at her place of work, home or PGA golf tournament. If you've never met her in person or even conversed with her, and you're just an average Joe, and you're under a restraining order barring contact, and she's a gorgeous, young multi-billionaire, there's a pretty good chance that it's not love, Joe. Let it go.

The Miami Herald Nespaper 03/22/13 - Man accused of harassing Donald Trump's
daughter arrested in Doral

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March 20, 2013

Gun Slinging Granny Found Guilty Of Second Degree Murder For Shooting Teenage Grandson

Between the dreams, perceptions and fears of the human mind lies a no-man's land of shadowy, shimmering, shifting reflections that aren't always what they appear to be. And it was through that internal fog that 75 year old West Bloomfield grandmother Sandra Layne claims to have seen her life flash before her eyes--followed by the rude wake-up call of the multiple gun shots that she pumped into her imagined assailant.

And at the opposite end of the muzzle lay 17-year-old Jonathan Hoffman, Layne's live-in grandson. In all, he was hit 6 times.

Accordingly, the Oakland County Prosecutor's office in Pontiac charged Layne with the crime of open murder, an allegation that allows the jury to determine the degree of the crime, depending on the facts established at trial.

Layne's Southfield criminal defense attorney claimed self defense. The essential elements of that criminal law principle (under the circumstances of this case) are that: (1) The innocent victim (2) honestly and reasonably believed (3) that use of deadly force was necessary to prevent his imminent death or great bodily harm, at the hands of an attacker. The law also provides that, as long that the victim's perception of imminent death is reasonable, the defense remains valid even if the victim was, in fact, wrong about the threat.

Moreover, Michigan is a stand your ground state. Thus, a person who is not engaged in criminal activity at the time of the incident may use deadly force to protect himself from a potentially lethal attack, wherever he has a legal right to be. Nor is there any duty to retreat, under the circumstances set forth in the prior paragraph of this blog.

And it is at that juncture that the details of this case become debatable and even murky. The Prosecutor cites evidence that Layne's grandson was hastily fleeing the scene while Layne was riddling him with hollow-point bullets. Further supporting that theory, is the fact that the grandson was able to grab a phone and call 911, frantically informing the authorities that his grandmother was shooting him. During that recorded call, Layne continued firing, hitting her grandson again, at which point he exclaimed to the 911 operator that he was going to die. The jury heard that recording at trial.

Laney claimed that she feared her grandson because he had been using drugs, had been convicted of a drug charge, was on probation and had brought drug-using strangers into Laney's home. She also testified at trial that, on the day of the shooting, while driving Hoffman home from a mandatory court-ordered drug test, which confirmed that he had ingested synthetic marijuana, Hoffman became extremely angry and began kicking the dashboard and demanding the car keys.

Laney further asserted that her grandson had charged her and had even struck her, which prompted her to protect herself. But the prosecutor pointed out to the jury that "Layne had no injuries, not even a smudge to her makeup" when police arrived.

Finally, the case went to the jury and on March 19, 2013. After less than two hours of deliberation, the jury returned a verdict of second degree murder, which is somewhat of a victory for Layne, since a conviction of first degree murder would have landed her in prison for life, without parole. In contrast, a West Bloomfield criminal defense lawyer commented that the second degree murder conviction is likely to yield a minimum sentence of 14 years in prison.

WXYZ.com News, 3/19/13 Grandmother Sandra Layne found guilty of 2nd degree murder
in shooting death of grandson

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October 11, 2012

Defense of Legal Insanity Likely If East Lansing Professor Prosecuted

Sticky-note to self: It's Calculus 101 NOT pole dancing 101. And if that visual aid doesn't seem to be doing the trick, we have a feeling that Michigan State University calculus Professor John McCarthy's compulsory trip to the psychiatrist's office will drive the distinction home, once and for all.

In the mean time the Ingham County Prosecutor's office in Lansing, Michigan is taking a long hard look at the criminal implications of the professor's classroom strip tease. Yes, the term strip tease is technically correct, because the professor retained at least one item of clothing after publically disrobing: His socks.

Other details of the bizarre drama come from students who witnessed the classroom pandemonium. They report that, in the run-up to the professorial burlesque act, the educator was screaming profanities while exiting, re-entering and pacing around the classroom.

And after the last clang of the last spectator jaw hitting the floor, only stunned silence remained.

Two Michigan statutes are implicated in this matter. The first is the crime of indecent exposure. The basic necessary elements of the pertinent criminal statute include 'any knowing, open or indecent exposure of his or her person or of the person of another'. The crime of indecent exposure is a misdemeanor carrying up to one year in jail.

Aggravating factors include 'indecent exposure while fondling his or her genitals, pubic area, buttocks, or, if the person is female, breasts', while violating the basic law, set forth above. That version of the offense is a felony and carries up to 2 years in prison.

Finally, if the defendant committed the offense while under the status of 'sexually delinquent person', the penalty is up to life in prison or any term of years, but not less than a year and a day.

In this case, the element of knowledge implicates another issue, that being the defense of legal insanity. The elements of legal insanity are as follows: (1) Mental illness or mental retardation; (2) causing the inability to perceive reality, and/or; (2) causing the inability to control one's actions.

The law defines mental illness as a substantial disorder of mood or thought, which impairs a person's judgment, behavior, or capacity to recognize reality, or to cope with the ordinary demands of life. Psychiatrists typically boil all that to one word: Psychosis.

Thus, legal insanity may be found where, in the throws of a psychotic episode (1) the defendant perceives, through hallucinations, delusions and the like, that his objectively bizarre actions are normal, appropriate and rational under the circumstances, and/or; (2) the defendant's conduct was driven by an irresistible impulse.

Particularly because the professor's behavior appeared to be so completely irrational and lacking in any connection with reality whatsoever, this Lansing mental health attorney predicts that any East Lansing jury deciding the case would easily find the defendant not guilty on grounds of legal insanity.

At any rate, the trial is sure to be more riveting than the Biden Ryan debate.

Student: Michigan State Professor Ranted, Stripped Naked in Apparent Mental Breakdown, MLive Newspaper

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October 7, 2012

Southfield Sex Crimes Attorney Approves Teen Sex Offender's Light Sentence

The traditional 'what I did on my summer break' exercise is no sooner told than forgotten. So it must have come as quite a surprise to Ashley Poe, 18, of Ann Arbor, when the police knocked on her door, inquiring about a criminal incident from last summer.

And the news could hardly have been worse. The accusation was that Ms. Poe sexually molested two minor children, a girl, age 12 and a boy, age 14. Reportedly, the incidents occurred on July 14.

Since the victims are minor children, details are scant. Reportedly, the children are Ann Arbor area residents, both with long histories of being run-aways.

Ms. Poe's background is also murky. Though she told the court that she was a student at Ann Arbor Tech High School, school officials report that they have no record of Poe attending the institution.

Ultimately, the criminal defendant pled "no contest" to reduced charges. Plea bargaining is a common practice in the Michigan courts. The objectives of that procedure are to alleviate docket crowding and the avoidance of the uncertainties of jury trials.

Under the Michigan Rules of Court, a guilty plea must be knowing, voluntary and accurate.

In accepting a plea of guilty, the judge must inform the defendant of the rights that she is relinquishing by submitting such a plea. Those include the rights to: A trial by judge or jury; to be presumed innocent until proved guilty; to the reasonable doubt standard of proof; to have the adverse, prosecution witnesses appear at the trial; to confront those witnesses; to judicially compel defense witnesses to appear at trial; to remain silent; to testify at the trial if desired, and; relinquishment of the right to appeal the sentence.

The rules are different, however, within the context of a no contest plea. Accordingly, because that type of plea deviates from standard procedure, the defendant is not required to set forth a factual basis on the record. Instead, the judge usually uses the police report as the factual basis, provided that the prosecutor, the Ann Arbor sex crimes attorney and the criminal defendant stipulate to that procedure.

The justification for such a plea is most frequently based on one of two grounds: Either the potential for usage of the defendant's own words against her in a subsequent, related civil suit for money damages, or; that the defendant is unable to recall the incident due to excessive alcohol or drug consumption at the time of commission of the offense.

Nevertheless, a no contest plea is the equivalent of a standard guilty plea.

In this case, the criminal defendant was originally charged with Second-degree criminal sexual conduct, a 15 year felony. The Washtenaw County prosecutor in Ann Arbor charged Ms. Poe with second degree criminal sexual conduct because one victim was under the age of 13 and the other, though older than 13, was sexually molested during the commission of a felony (an aggravating factor).

The criminal defendant was also charged with criminal sexual conduct third degree, also a 15 year felony. For the purposes of this blog, sexual molestation may amount to criminal sexual conduct third degree where either of the following factors are found: The incident included sexual penetration of a victim between the ages of 13 and 16, and/or; force or coercion was used.

Here, however, in the end, the prosecutor mercifully agreed to permit the teenage sex offender to plead to two counts of "Assault with intent to commit criminal sexual conduct"--a five year felony. Accordingly, the more serious charges will be dismissed.

Moreover, the defendant's Southfield sex crimes attorney was able to bring about a soft landing, with the inclusion of a sentence bargain. Under that provision, the defendant will not be sent to prison, but will serve one year or less in the Washtenaw County Jail. Any prison sentence must exceed one year.

Though many if not most members of the public will find the defendant's lenient treatment unconscionable, nothing could be further from the truth. In view of the fact that teenagers are more prone to making mistakes than adults, primarily because of their lack of life experience, it is eminently reasonable for the authorities to emphasize the sentencing goal of reformation over mere, harsh punishment. What is, in fact, unconscionable, is the destruction of a teenager's entire future without first attempting to set her straight.

Though it may appear as a scene from Die Hard 5, all's well that ends well.

Ann Arbor High School Student Pleads No Contest To Sexually Assaulting 2
Youths
/ Ann Arbor.com


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October 4, 2012

Southfield Violent Crimes Attorney Calls Defense of Legal Insanity Best Hope

Whether Patrick Mikes of Troy, Michigan was obeying the voices in his head when he pummeled his own father to death with a baseball bat is debatable. That the entire Troy community is buzzing with thousands of angry voices calling for swift 'old testament' style justice - is a fact.

What has the populace in such an uproar is the counter-intuitive notion that the criminal defendant may be held completely blameless on grounds of the defense of legal insanity.

A Troy criminal attorney informs the blog that, in a case like this, the defense of legal insanity is perhaps the only option. And the details do seem to lend themselves to that defense.

In fact, at the defendant's preliminary examination in the Troy district court, before Judge William Bolle, the criminal defendant's own brother testified that Patrick Mikes had mentioned, years ago - that he had been hearing voices in his head. That is important because, as any experienced murder attorney knows, jurors tend to be skeptical of the insanity defense where there is no evidence of prior mental illness in the defendant's past. Claims of temporary insanity are simply dismissed as 'made in Hollywood'.

In sum and substance, the elements of legal insanity are as follows: (1) Mental illness or mental retardation; (2) causing the inability to perceive reality, and/or; (2) causing the inability to control one's actions.

The law defines mental illness as a substantial disorder of mood or thought, which impairs a person's judgment, behavior, or capacity to recognize reality, or to cope with the ordinary demands of life. Psychiatrists typically boil all that to one word: Psychosis.

Thus, legal insanity may be found where, in the throws of a psychotic episode (1) the defendant perceives that he must kill in order to save his own life, and/or; (2) the defendant's conduct was driven by an irresistible impulse.

The public perception is that legal insanity is the recent invention of the do-gooders, the tree-huggers, the far-left lunatics and the like. In fact, the defense of legal insanity has been recognized by civilized societies around the world for thousands of years.

For example, the dusty old Latin phrase actus non facit reum nisi mens sit rea comes straight from merry old England and English common law. Translated, this phrase means "the act does not make a person guilty unless the mind is also guilty." And the similar criminal elements of American law, actus reus and mens rea have been part of Michigan jurisprudence since long before Michigan was even a state. The phrase means that, in order to convict the defendant of a specific intent crime, the prosecutor must prove not only that the defendant committed the act, but also that he acted with a criminal mindset.

No doubt the steepest hurdle faced by the criminal defense attorney in this case is the statute that bars the jury from knowing the outcome of a verdict of not guilty by reason of insanity. In order to even consider the defense of legal insanity, it logically follows that the jury is assuming that the defendant committed the homicide (because if the jury determines that the defendant did not perpetrate the murder, they must find him not guilty, which brings the entire process to an immediate halt).

But once the jurors have determined that the defendant did, in fact, commit the criminal act, they must go on to consider the defense of legal insanity. Bearing in mind human nature, it is fair to assume that at that juncture, the jurors are wrestling with the concept that a "not guilty / insanity" verdict means that defendant walks free.

Nothing could be further from the truth. In fact, under Michigan law, a criminal defendant found not guilty by reason of insanity, must be committed to the Center for Forensic Psychiatry in Ypsilanti, Michigan, for no less than 60 days. The Center for Forensic Psychiatry is a secure facility, the walls of which are topped with razor wire and the doors of which are always securely locked. In other words, the facility is a prison-like setting.

Moreover, after the expiration of the initial 60 day evaluation period, the criminal defendant's incarceration in the facility may be extended indefinitely, until and unless the psychiatrists and the psychologists determine that the defendant no longer poses a danger to himself or others and/or that he is no longer mentally ill. Unlike the vast majority of convicted defendants, therefore, defendants committed to the facility have no out-date whatsoever (even if they were found not guilty by reason of insanity). The reality is that the Center for Forensic Psychiatry is full of involuntarily committed patients who have been housed at the facility for decades on end.

All of which brings us back to the beginning. Will the Pontiac jury obey the voice of the law--or will the jurors, like the defendant in this matter, obey the voices in their own heads, imploring them to do the sure thing instead of the right thing?

In this case "who won the debate" is no mere parlor game - it's for keeps.

Troy Man Charged In Father's Killing Heard Voices, Brother Testifies / The Detroit Free Press October 4, 2012 /

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September 27, 2012

Southfield Criminal Defense Attorney Cautions Accused Killer: Remain Silent

Even if the Lansing, Michigan jury acquits him of open murder and first degree child abuse, at the very least--criminal defendant Yumar Burks is a shoo-in for first place at any bad-dads competition.

The saga began mundanely enough: Sheretta Lee, Burks' now ex-wife, departed for work at 2 p.m.--leaving Burks with the couple's 6 month old baby, Antonio.

And with that, Burks ran into a string of bad luck seemingly as complex and convoluted as the operating manual for the NASA Mars Rover. First, the 28 year old Burks decided to take a nap with his 6 month old son, in the same adult bed (Mistake #1)

At trial, Burks' Lansing, Michigan criminal defense lawyer called the defendant to the witness stand and questioned him about the events. Accordingly, Burks testified that, while sleeping, he rolled over little Antonio for about a minute or so (Mistake #2). Prosecutors were quick to point out to the jury that Burks' told a different story to police investigators. In Burks' prior version, he claimed that he rolled over the baby for 15 minutes (Mistake #3).

That discrepancy is significant because, in every criminal jury trial, the judge invariably informs the jury that they may (but are not required to) consider prior inconsistent statements as evidence of falsity.

But while one mistake may be easily shrugged off as an exception, a string of related mistakes starts to look a lot like a game-plan. Burks further testified that he woke up after hearing the baby crying and gasping for air, and realized that he had been lying on top of Antonio (Mistake #4). With that, the criminal defendant promptly began administering CPR (Mistake #5).

Burks drew a bath and placed Antonio into the bathtub (Mistake #6). Burks' stated purpose was to 'calm the baby down'. Meanwhile, Burks left the bathroom to obtain towels and other items (Mistake #7).

Upon returning to the bathroom, Burks found the baby submerged under water, making coughing and choking sounds. Burks then reportedly flew into action and began administering what 'he came to know' as adult CPR (Mistake #8).

Burks testified that, while administering CPR, he used the base of his fist, presumably on the baby's torso or chest area (Mistake #9). That statement conflicted with last years' claim to the police that Burk used his knuckles (Mistake #10). Yet another inconsistent statement.

Burks admitted that he struck the baby under 15 times (Mistakes #11 through 16). His explanation was that "It was ... a father trying to get his son to breathe ... I think (the strikes were) harder than (they) should have been" (Mistake #17, or Mistake# 17 through 32, depending on perspective). Oddly, last year, Burks also admitted that he had to wipe blood and feces from the boy's mouth.

And after all that--Burks put his son to bed, on a mattress next to his own. Despite the tumultuous events, the boy's mother, Sheretta Lee, stated that "she didn't notice anything was wrong" upon returning home from work.

When she touched Antonio the next morning, however, he was extremely cold. He was then rushed to the hospital with numerous injuries, including damage to his internal organs.

All of which is why Burks now faces charges of open murder and first-degree child abuse.

A charge of open murder leaves the decision as to the degree of the crime to the jury.

Generally, the elements of first-degree murder include premeditation and intent. First-degree murder may also be found in the absence of premeditation and intent to kill, however, where the perpetrator causes the death of the victim during the commission of first-degree child abuse. That second type of first-degree murder is also known as "The Felony Murder Rule". An interesting side-note is that the "Felony Murder" rule is out of favor in most of the civilized world these days, yet, it remains the law in Michigan. The penalty for first-degree murder is life in prison without parole.

The elements of second-degree murder include (a) intent to kill or (b) intent to do serious bodily injury or (c) acting with wanton and willful disregard that the natural tendency of the behavior was to cause death or great bodily harm, under circumstances which did not excuse or justify the killing, or mitigate the degree of the offense to manslaughter. Even if sentenced to life in prison under the second degree murder statute, the criminal defendant is eligible for parole at some point.

Voluntary manslaughter is the unlawful and felonious killing of another without malice, either express or implied. Involuntary manslaughter occurs as a result of wanton disregard of the consequences and an indifference or reckless disregard for the rights of others. The shorthand term for those elements is gross negligence. Generally the penalty for manslaughter is up to 15 years in prison. Other involuntary forms of the crime carry various other, lesser penalties.

In order to prove first-degree child abuse, the prosecutor must show that a parent or guardian who has care, custody, or authority over a child either knowingly or intentionally caused "serious physical harm" or "serious mental harm" to the child. First degree child abuse carries a penalty of up to 10 years in prison.

In that the jury may use plain old common sense in deciding this matter, this Southfield criminal defense attorney can only question the wisdom of taking the stand and throwing more good intentions and excuses at the jury than President Obama had for supporting the doomed "Arab Spring".

It is reminiscent of Anne Hathaway showing off her singing side.

East Lansing Dad On Trial In Son's Death Testifies / The Lansing State Journal 9/27/2012 / The Reeves Law Group

September 21, 2012

Ann Arbor Sex Crimes Attorney Supports Judge's Rejection Of Guilty Plea

Though many will call it integrity, and others might call it call it chutzpa--no doubt the typical Michiganian will simply shrug his shoulders and call it "Pure Michigan". But though the average citizen may see it as just a matter of course, the blog sees it for what it is: An act of uncommon courage in a world where success all to often depends on going along to get along.

Which is why the blog was surprised when US District Court Judge Avern Cohn took it upon himself to buck a well entrenched, established and time-tested policy of the U.S. Attorney General's Office.

The pernicious practice in question has to do with plea negotiations. Commonly, criminal charges are resolved by the process of plea bargaining. In a nutshell, the prosecutor will offer the criminal defendant a reduced charge in exchange for a guilty plea. The principal goals are reduction of docket congestion and avoidance of the uncertainties of a jury trial.

In the Federal system, somewhere along the line, the Federal prosecutors (dubbed Assistant US Attorneys) began adding an additional dimension to those agreements. The innovation had to do with the system's internal process of checks and balances, commonly known as appellate procedure. Ultimately, as an additional condition of the plea bargain, the criminal defendant would be required to waive and relinquish his appellate rights.

Turning to the meat and potatoes of this saga, Steven Jenson, M.D., a University of Michigan Hospital physician, was charged with possession of 97 pornographic images of children and four such videos. The images were stored on a thumb drive which allegedly belonged to the doctor.

A hospital worker stumbled on to the images while somehow accessing that thumb drive. The worker reported the matter to Hospital Security but the information was not passed on to the police for 6 months.

The Washtenaw County Prosecutor's Office in Ann Arbor ultimately charged the criminal defendant with receiving and possessing child pornography. Ultimately, however, the Prosecutor's Office relinquished the case to the United States Attorney General's Office (the Federal prosecutor's office).

Had the matter remained in the Washtenaw County Circuit Court, the criminal defendant would most likely have been charged under MCL 750.145c(4). Pursuant that law, possession of such photographs and images (referred to under the law as 'child sexually abusive material') carries up to 4 years in prison and up to $10,000.00 in fines. In sum and substance, the statute defines child sexually abusive material as any depiction, whether photographic or drawn, mechanically or otherwise, showing a child engaging in a listed sexual act. The Federal charges that Dr. Jenson now faces, materially parallel the Michigan statute.

Suffice it to say for the purposes of the blog, that the images in this case were within the ambit of the listed sexual acts set forth in the statute.

Typically, the prosecutor would have filed multiple charges against the criminal defendant, including MCL 752.797(3)(d). That criminal statute provides, in sum and substance, that if the criminal defendant used a computer to commit the principal offense [i.e., MCL 750.145c(4)], then the penalty under the original criminal charge shall be elevated to up to 7 years in prison and up to $50,000.00 in fines.

Up to the moment of the scheduled guilty plea proceeding, Dr. Jenson was ready to go forward with a plea deal. The terms of the plea bargain were that the criminal defendant would plead guilty to one criminal charge and would waive his appellate rights. In turn, the US Assistant Attorney would drop the second criminal charge.

At which point the Judge Cohn WHOA-NELLIED the entire process. In not so many words, Judge Cohn's concern was this: Should a system which aspires to perfect justice, embrace policies that spawn injustice?

Actually, the Judge brought that concept down to earth with this simple observation: "I don't want non-reviewable authority, I could make a mistake. I could be wrong". Understandable, considering the awesome power that a Judge wields over other people's lives on a daily basis.

And with that, the Judge instructed the Assistant U.S. Attorney and the criminal defendant's Ann Arbor criminal defense lawyer to work out an acceptable resolution.

U-M child porn case: Judge refuses to accept Stephen Jenson's plea
agreement
September 21, 2012 / The Reeves Law Group

September 19, 2012

Southfield Sex Crimes Attorney Favors Plea Which Avoids CSC I, A Life Offense

Perhaps it's because we are social creatures whose very survival depends on interpersonal cooperation -perhaps its simply because it has a tendency to rob us of our sense of security--either way, in the life of a child, there are few experiences more destructive and scarring than a major breach of trust by an admired and respected adult.

And that is the principal reason why the law reserves a harsher brand of justice for a trusted adult who sexually molests and abuses a minor child. In this case, Florencio Castillo avoided the full arsenal of the Michigan criminal justice system, due in no small measure to the excellent lawyering of his Grand Rapids criminal defense lawyer.

As a volleyball instructor training adolescent girls in the sport, Castillo used his position to act out his apparent sexual attraction to underage females. Reportedly, Castillo sexually assaulted at least two of the students on multiple occasions.

Nevertheless, a Grandville criminal lawyer was able to minimize the criminal charges to one count of criminal sexual conduct (CSC) 3rd degree and one charge of criminal sexual conduct (CSC) 4th degree.

A person is guilty of CSC 3rd degree if penetration occurred and the victim was between the ages of 13 and 16, was forced or coerced, was mentally or physically helpless, was related to the perpetrator by blood or affinity or other factors not applicable to this case. The maximum punishment for CSC 3 is 15 years in prison.

A person is guilty of CSC 4th degree if sexual contact occurred and the victim was between the ages of 13 and 16 and the perpetrator was 5 or more years older than the victim, force or coercion was involved, the victim was mentally or physically incapacitated, the perpetrator was related by blood or affinity or other factors not applicable to this case. CSC 4 is a high court misdemeanor (but a felony for penal purposes) punishable by up to 2 years in prison.

Few prospects are as daunting as facing up to a looming prison sentence. Nevertheless, Mr. Castillo is a very lucky man tonight, because the plea bargain hammered out by his Southfield criminal defense lawyer saved him from a likely conviction for Criminal Sexual Conduct 1st Degree, which carries a penalty of up to life in prison.

Volleyball Trainer Admits to Sex Crime, Wood 8 TV, September 19, 2012, The Reeves Law Group

February 29, 2012

Ann Arbor Financial Crimes Attorney Calls Adrian Embezzlement Case Winnable

Well, it's finally happened. The phrase "As easy as taking candy from a baby" has met its match -- now that Paul Anthony D'Arcy of Onstead has been arraigned in the Adrian District Court for allegedly stealing from a Catholic religious charity.

The criminal complaint charges D'Arcy with embezzling close to $103,000.00 over the course of three years, a 20 year felony. Though the amount stolen will certainly stand as an aggravating factor at the criminal defendant's sentencing proceedings (if any), the crime of embezzlement in and of itself is even more pernicious than mere stealing. That is because the heart and soul of the crime of embezzlement involves a betrayal of trust by a fiduciary. Under current Michigan legal authority, such a person is one who manages money or property, for the benefit of the owner.

The necessary elements of the crime of embezzlement are set forth in MCL 750.174(1): "A person who as the agent, servant, or employee of another person, governmental entity within this state, or other legal entity or who as the trustee, bailee, or custodian of the property of another person, governmental entity within this state, or other legal entity fraudulently disposes of or converts to his or her own use, or takes or secrets with the intent to convert to his or her own use without the consent of his or her principal, any money or other personal property of his or her principal that has come to that person's possession or that is under his or her charge or control by virtue of his or her being an agent, servant, employee, trustee, bailee, or custodian, is guilty of embezzlement".

Another aggravating factor in this matter is the second group of criminal charges lodged against D'Arcy. The Lenawee County prosecuting attorney in Adrian has also accused the criminal defendant of using a computer to commit fraud, MCL 752.794. A related statute, MCL 752.797(3)(e), sets the maximum punishment at 10 years.

Further compounding the criminal defendant's woes is the allegation that he used a financial transaction device to commit the crime. Reportedly, D'Arcy siphoned some or all of the funds into a Paypal account that he controlled, by means of a victim's credit or debit card to which he had access.

Doubtless any assertion that D'Arcy merely misinterpreted the biblical proverb "The Lord helps those whom help themselves" will not stand him in good stead at his criminal jury trial. D'Arcy's Southfield criminal defense lawyer, however, is not without legal defenses, several of which are actually written into the criminal statute with which the defendant is charged.

Because those defenses are embedded within the criminal law, at trial, the Lenawee County prosecutor will effectively need to disprove those matters, beyond a reasonable doubt. In a nutshell, a reasonable doubt is a doubt of any size, big or small, arising out of the facts or lack of facts.

Thus, mere proof that the defendant took the funds will not be enough to convict. The prosecutor must also prove lack of permission, conversion for the thief's own usage, trustee status and specific intent to steal.

Since the burden of proof in a criminal trial never shifts, the prosecutor's inability fully carry that burden is nothing less than an outright win for the criminal defense lawyer.

Manager Charged With Embezzling 100,000.00 form Dominicans, Daily Telegram, 2/18/12

February 15, 2012

Bay City Michigan Teacher Accused Of Criminal Sexual Conduct With Students

heidi-lewisjpg-61ae7ae6e5598feb.jpgIn a world of constantly shifting values and morals - and the all too common complete lack thereof, it's a tale that could easily have been logged in under her personal diary heading entitled "What I Did For Love". But when 42 year old high school teacher Heidi Lewis's story took a wrong turn and landed on the desk of the Bay County Prosecutor, it was filed, instead, in a drawer labeled criminal sexual conduct.

In fact, in a simpler time, consensual sexual contact between unmarried heterosexuals of legal age would have been out of the ambit of the Michigan criminal sexual conduct statutes. As a reaction to a perceived epidemic of sex crimes, however, the Michigan legislature in Lansing passed a raft of laws criminalizing a wider range of sexual behavior. Included in that legislative movement was a set of laws which punished teachers for sexual contact with their students - even if the students were above the age of consent (age 16) and below the age of 18.

Thus, Ms. Lewis now finds herself facing felony charges for alleged sexual contact with several of her 17 year old male students. Reportedly, the incidents took place in the teacher's Jeep and also at various homes of some of the participants.

Two criminal sexual conduct statutes may apply. The necessary elements under the first applicable statute include sexual penetration of a student between the ages of 16 and 18, by the student's teacher - MCL 750.520d(1)(e)(i) and (2), commonly known as criminal sexual conduct, 3rd degree. The maximum penalty for that violation is 15 years in prison.

The pertinent elements under the second potentially applicable statute include sexual contact with a student between the ages of 16 and 18, by the student's teacher - MCL 750.520e(1)(f)(i) and (2), commonly known as criminal sexual conduct, 4th degree. Under that lesser offense, however, proof of penetration is unnecessary. If convicted under that statute, Ms. Lewis faces up to two years in prison. The pertinent two year penalty is deemed a misdemeanor for civil law purposes, but it is treated as a felony for criminal law purposes.

If convicted of the higher charge, Ms. Lewis will be listed on the sex offender's registry for decades. Access to that list is posted on the internet and is available to the viewing public.

If there is any good news for Ms. Lewis in this matter, it may come in the form of a plea bargain. If Ms. Lewis' Southfield criminal defense lawyer is able to negotiate an agreement allowing the criminal defendant to plead to one count of criminal sexual conduct, 4th degree, Ms. Lewis may avoid being listed on the Michigan sex offender's registry. She may also become eligible for expungement of her criminal record.

Under a related statute, MCL 780.621, a person convicted of criminal sexual conduct in the 4th degree, may have her conviction set aside after the expiration of at least 5 years. A conviction for criminal sexual conduct in the 3rd degree, however, may never be set aside under that statute.

Jury Contamination Delays Trial of Former Bay City Teacher Charged with Sex With Students, Bay City News, 2/8/12

April 28, 2011

Former Detroit Mayor Kwame Kilpatrick's Cousin Charged With Embezzlement

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

April 23, 2011

Embezzlement Charge May Be Dropped Due To Michigan Statute Of Limitations

Southfield Criminal Defense Lawyer Suspects That Charges Of Embezzlement and Using A Computer To Commit A Crime May Be Dismissed Due to Expiration Of The Statute Of Limitations.jpgIf 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

April 22, 2011

Lincoln Park Michigan Man Fights Child Pornography Case in Wyandotte Court

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

February 6, 2011

Lansing Resident Kills unwanted Intruder In Self Defense - Avoids Prosecution

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

January 20, 2011

Ann Arbor Teacher Charged With Criminal Sexual Conduct Against 12 Year Old

bilde.jpegEdward 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