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
