Michigan Criminal Lawyers Blog

If there were an award for creative lawyering, first prize would have to go to the attorney who represented the Assistant Holland ( Michigan ) City Attorney charged with Criminal Sexual Conduct Third Degree, a 15 year felony.

The salient - if not salacious - facts of the case are riveting. The Assistant Holland City Attorney was at Court conducting Pre Trial Conferences. That is the meeting where plea bargains and sentence bargains are hammered out.

The City Attorney met with a 21 year old young lady facing a drunk driving charge. The Prosecutor's offer? Reduction of the drunk driving charge to next lowest offense in exchange for - sex. Reportedly, an agreement was reached and the deal was sealed in the nearby locked restroom.

We can only imagine how the young lady must have felt upon later learning that the vast majority of Drunk Driving charges are reduced to the next lowest offense anyway - that being Operating While Visibly Impaired.

Of course, one person who isn't wondering how the young lady felt when she learned the statistics is the Assistant City Attorney. That is because, after coming to her senses, the victim reported the incident to the Police. Ouch!

Nonetheless - the blue ribbon is due to the Defense Lawyer in this case because, under the law - the Court may not impose probation for Criminal Sexual Conduct Third Degree (which virtually guarantees a long prison or jail term). Yet, for all intents and purposes, at his upcoming sentencing, the Holland City Attorney will receive what amounts to a light probationary sentence.

And just what feat of magic did the Defense Lawyer conjure up? Unfortunately for the Blog - absolutely none. In fact, all Defense Counsel did was pull a statute out of a dusty old law book. A statute referred to as "The Delayed Sentencing Act".

Under that Statute, the Judge may delay the Defendant's sentence for up to one year. Since no Judgment of Sentence is officially entered, it cannot be said that the Defendant's case has been conclusively "adjudicated". The charge simply continues to pend, so the Court may impose conditions. At the conclusion of the period, after a compliance review, the Judge may dismiss the charges.

Most important for the Holland City Attorney is the fact that, in the end, the original charge will be dismissed and the Defendant will be instead convicted of the much lower offense of Gross Indecency. The main benefit being that the Defendant will not be required to add his name to the Michigan Sex Offender Registry.

Former deputy city attorney Carl Gabrielse sentenced to six month jail term in sex assault case,The Holland Sentinel, February 25, 2010

Today, Mr. Akio Toyoda, President of Toyota Motor Group, appeared before the United States Congress offering apologies, condolences and acknowledgements of problems with Toyota vehicles.

Meanwhile, back at the Justice Department, Federal Prosecutors were floating the idea of filing criminal charges.

No doubt Mr. Toyoda's Corporate advisors assured him that testifying made excellent business sense. And if his lawyers advised the Boss that the Rules of Court bar evidence of subsequent remedial measures in a civil trial, their advice was technically correct.

In the Public Relations business, the advice de jour is to get out in front of the news with frank admissions and profuse apologies. But even the great Akio Toyoda can't run a global car company from a jail cell.

On the criminal law side of the equation, the advice is quite the opposite. At trial, all evidence comes through the mouths of witnesses (even physical evidence is introduced through testimony). So in every trial, the Defendant's entire fate turns on the words spoken from the witness stand. And few items of trial evidence can be more devastating than the Criminal Defendant's own statements.

In the context of a Criminal Trial, the Defendant's words fall into two categories: Admissions and Confessions. Under current Michigan case law, an admission is any relevant statement made by the Defendant. In contrast, a confession is any statement that supports all of the elements of the criminal charge. In other words, an admission is a mere brick in the wall, while a confession is the entire structure.

That said, the Criminal Defense Lawyer's best advice ahead of testifying before the Congressional panel yesterday would have been: Use the "IF" word.

For example - instead of Mr. Toyoda stating "We pursued growth over the speed at which we were able to develop our people and our organization, and we should sincerely be mindful of that", Mr. Toyoda should have said: "IF we pursued growth over the speed at which we were able to develop our people and our organization, we should sincerely be mindful of that.

What difference can a simple two letter word make? In this case - perhaps the difference between jail and freedom.

UPDATE 1-Toyoda says 'deeply sorry' for accidents, Reuters US Edition, February 23, 2010

Jerome Hamilton of Southfield, Michigan, age 17, faces his third consecutive Jury Trial for a single Homicide allegedly committed on October 15, 2008.

The victim, Catherine Blain, 21, was the night manager of a Lathrop Village restaurant. As she left work heading to her parked car, she was allegedly accosted by Mr. Hamilton - who attempted to rob her. Miss Blain resisted and Hamilton reportedly shot her in the head.

Neither of the first two Juries were able to reach a unanimous verdict. That forced the Judge to declare mistrials (dismissals), because jury unanimity is required in criminal cases.

The gunman was aided by two accomplices, one of whom was the getaway driver. The Circuit Court Judge in Pontiac, Michigan has already sentenced the driver to life in prison.

Pursuant to what amounts to a sentence bargain, the second accomplice has agreed to finger Hamilton as the trigger man. The deal slashes the accomplice's potential prison sentence from up to life in prison down to as few as 11 years.

Ironically, the very sentence bargain that elicited that testimony may be the very evidence that left the Juries with doubts about the case. That is because the Judge informs the Jury that they may consider "witness interest" as evidence of incredibility.

A new legal team will handle the third trial. Those lawyers will raise the defense of Alibi. Reportedly, the Defendant's uncle will testify that he was with the Defendant at the time of the homicide - in another part of Metro Detroit.

The Defense of Alibi is sometimes known as the "perfect defense". The obvious reason is that, if the jury believes that the Defendant was not present at crime scene, then his participation was impossible.

In this case, however, the perfect defense may turn out to be the perfect clincher - for the Prosecution. That is because the Defendant's uncle was present in the Court Room during the first two trials, yet the Alibi defense was never mentioned.

Facts like those can open the door to Prosecutorial questions about witness failure to come forward. The point of that questioning is to impeach the credibility of the witness.

The wild card is whether the perception of false defense-witness testimony will taint the Defendant's entire case. In a prosecution where two separate Juries have reviewed the same evidence and declined to find guilt, staying the course may be the safest bet.

Teen to be tried 3rd time in Rib Rack killing, The Detroit Free Press, February 22, 2010

Though a judge may impose a sentence of incarceration under the MichiganDomestic Assault Statute, the real minefield that the Criminal Defendant must navigate includes the Court's bond conditions and conditions of probation.

For the first-time offender with a clean criminal record, those are the stages of the criminal process where jail terms are most commonly handed down. That is because, in many such cases, the Court offers the Defendant a strictly probationary sentence - with complete dismissal of charges without conviction - upon successful completion of the Court's requirements.

Of the nearly 8,000 Domestic Assault cases filed each year in Michigan's Wayne County and Detroit Courts, many involve mutually hostile relationships between estranged spouses, divorcing spouses and other such couples. In other words - many of the victims have axes to grind.

Typically, bond and probationary conditions strictly prohibit the Defendant from any contact whatsoever with the victim. Most Judges emphasize that "no contact" means no letters, no email, no instant messages, no telephone calls, no third-party messages and no physical proximity within a certain perimeter.

And therein lies a formula for disaster - for even the Defendant with the best of intentions. An example of how the situation can unexpectedly spin out of control involves Sam Riddle, a former top aide to ex-Detroit Councilwoman Monica Conyers.

Mr. Riddle had been charged under the Domestic Assault Statute for allegedly assaulting his live in companion, former State Representative Mary Waters. Riddle's bond conditions included a no-contact order. According to Riddle - he was present at a Birmingham, Michigan theater when he inadvertently encountered Ms. Waters. Riddle's version is that Ms. Waters initiated communication.

Fast forward to the Wayne County Circuit Court in Detroit. Mr. Riddle is standing before Judge Gregory Bill. We cannot know exactly what is running through Judge Bill's mind. What most Criminal Defense Lawyers do know, however, is that few court settings bring down immediate jail time like a bond violation hearing.

Meanwhile, Judge Bill is mulling over his list of options. Topping that list, of course, is serious jail time. Finally, the Judge announces his decision: The Court will monitor and supervise Mr. Riddle's whereabouts through an electronic tether affixed to Mr. Riddle's ankle - 'until further order of the Court'.

Riddle's response? "Man, I can't wear my cowboy boots with this thing on".

And with that, we can only hope that the Defendant has a competent, effective and alert Criminal Defense Lawyer by his side to keep track of priorities.

Riddle Ordered To Wear Tether, Hits Back At Critics, The Detroit News, February 19, 2010

Faced with a charge of failure to satisfy restitution installment payments, former Detroit Mayor Kwame Kilpatrick raises the legal defense of impossibility.

Predictably, Detroit Criminal Defense Lawyers and Prosecutors have squared off on opposite sides of that argument.

The Defense of Impossibility was a valid legal defense at Common Law. Tracking with the current trend to narrow the rights of citizens facing criminal charges, however - the Michigan Courts have done away with that legal defense.

Fortunately, the Michigan Courts lack jurisdiction to abrogate simple logic and plain common sense. Vestiges of that Legal Defense, therefore, continue to play a central role in a wide range of criminal offenses. The charge of probation violation currently facing Former Mayor Kilpatrick is a good example.

The United States Supreme Court in Tate vs Short held, in essence, that we run the risk of creating a two-class system of justice - one for the wealthy and another for the rest of us - when we jail Defendants who are unable to pay, but free Defendants who have the resources. According the Supreme Court in the Tate case, that practice is repugnant to the Equal Protection clause of the US Constitution.

Reconciling Michigan's abolition of the Legal Defense of Impossibility with the U.S. Supreme Court's interpretation of the 14th Amendment to the United States Constitution (the Equal Protection Clause), leaves us with the following rule: Generally, an individual who sets out and intends to commit a crime, but falls short due to impossibility, may be convicted. In contrast, an individual who intends to comply with the law, but falls short due to impossibility, may be exonerated.

The final outcome for ex-Mayor Kilpatrick and other Criminal Defendants facing similar charges of Probation Violation, will, of course, turn on the effectiveness of the Criminal Defense Lawyer at the related criminal trial.

Experts: Kilpatrick risking jail over restitution claims, The Detroit News, February 12, 2010

For the second time in less than two months, security was breached at Detroit Metro Airport in Romulus, Michigan.

Though the methods differed in each incident, both seem to involve a common theme: Mental illness. Statements by close family members support that evidence.

Post arrest comments by Michigan Criminal Defense Lawyers in both cases strongly hint that the issue of Legal Insanity will be in play in both criminal trials.

It almost goes without saying that a criminal defense lawyer should explore the defense of Legal Insanity, where the criminal defendant displays psychotic behavior. Where the elements of the crime committed also require proof of specific intent, however, the Defense Team may have a formula for acquittal.

On many levels, though, the defense of legal insanity is a steep mountain to climb. First, societal attitudes toward mental illness and the Defense of Legal Insanity are filled with skepticism and even cynicism. Second, Lawmakers have reacted to those attitudes by raising the bar and imposing formidable obstacles. For example, the Michigan Legislature tinkered with the 400 year old principle of American Criminal Procedure which required the Prosecutor to prove his allegations 'beyond a reasonable doubt'. Lawmakers in Lansing, Michigan simply moved the goalpost by shifting the burden of proof to the Criminal Defendant, when raising the Defense of Legal Insanity.

Third - the law forbids the Defense Lawyer from informing the Jury that an acquittal on grounds of Legal Insanity will not result in the Criminal Defendant walking out of the Courtroom a free man. Since many cases involving the Defense of Legal Insanity include heinous crimes and homicides - the lack of information about post-trial disposition raises the danger that the jury will reject the Defense on purely emotional grounds.

Finally - the most daunting hurdle facing the Criminal Defense Lawyer is often the seriously mentally ill client himself. That is because a hallmark of the disease is lack of insight. That blind-spot commonly hampers the Defendant's ability to participate in his own defense. To counter that deficit, the Defense Lawyer's team must include sympathetic family members and highly trained mental health professionals.

Because in the end, often the only way to answer the ill-informed Jury's concerns is to convince them that the Defendant is not the cause of the incident - the cause of the incident is the mental illness.

Airport security breach suspect suffers mental problems, family says, The Detroit News, February 10, 2010

Let's face it - the easy way out is for Lansing Criminal Defense Lawyers to blame overzealous prosecution as the primary reason for excessive jail sentences. The hard part is admitting that the Criminal Defense bar shoulders an important portion of that responsibility.

Day in and day out, in court rooms all across Michigan - from Detroit, to Pontiac to Grand Rapids and back - Defense attorneys routinely contribute to imposition of excessive sentences through inadequate preparation, lack-luster advocacy, inattention to detail and incomplete knowledge.

Michigan Criminal Law and Procedure has long required that most felony sentences comport with the Michigan Sentencing Guidelines. In a nutshell, the Guidelines are a complex formula which assess both the Criminal Defendant's prior criminal record as well as the unique facts of the crime. The final outcome of that analysis is a numerical score.

The Defendant's score tells the Judge what sentence to impose. Under the law, the Judge may only depart from the recommended sentence if he finds substantial and compelling reasons that would support a different outcome.

A body of Michigan case law exists which interprets many of the sentencing criteria included in the Sentencing Guidelines. Those cases shed more light on some of the more confusing sentencing considerations.

A commonly misunderstood sentencing criteria is Prior Record Variable #7. That variable assesses points for "subsequent or concurrent" felony convictions. Courts have been known to confuse that variable with the criteria relating to the Defendant's prior conviction history - and to assess additional, unjustified points.

Those additional points can translate into additional years in prison for the the Criminal Defendant. And that is yet another reason why the Criminal Defendant must ensure that he has an adept, alert and knowledgeable Defense Lawyer at his side, at every stage of the process.

Commissioner: Closing jail post means inmates 'should be cheering plan', Lansing State Journal, February 6, 2010

The topic of sex crimes is front and center in the Ann Arbor media - and for good reason. After receiving multiple reports of a man committing indecent exposure in the area - the Ann Arbor Police are on the lookout for a serial "flasher".

On Monday, February 8, 2010, two men were charged - in an apparently unrelated matter - with criminal sexual conduct for having sex with 2 teenage girls, under the age of 16. What is unusual about the criminal complaint is that it charges the men with Criminal Sexual Conduct, First Degree - the most serious charge possible under the Michigan criminal sexual conduct statutes. Potential penalties include incarceration - for up to life in prison.

Absent any additional aggravating circumstances, sex with a minor between the ages of 13 and 16 can bring a charge of Criminal Sexual Conduct, Third Degree. The possible penalties under that statute include prison for up to 15 years. Moreover, the statute is unusual in that probation is not an option.

A component of Michigan Criminal Justice is the Prosecutor’'s right to decide which charge is appropriate under the circumstances. Bowing to public hysteria, however, is nothing more than an abdication of Prosecutorial discretion.

Two Ypsilanti men charged in rape of two underage girls, A2 Ann Arbor Journal, February 8, 2010