Michigan Criminal Lawyers Blog

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

The good old days. The old country. Words that invariably draw mental pictures of the verdant, pastoral meadows of our ancestral homelands. Those mystical realms where the laws of physics had been put on hold, and even time itself moved at a slower pace. Where a man's word was more valuable than gold, and a mere handshake could seal the deal.

That magical place where peace and order were held together by nothing more than quaint customs, ethics, morals, etiquette and courtesy - not by stuffy "laws" handed down by professional rulers on some distant hill.

Ah, nostalgia. We Americans just can't seem to get enough of it. But see what happens when a seemingly harmless notion like "nostalgia" quickly spins out of control and becomes a matter of personal "honor".

Fast forward to March 2, 2010, Lathrup Village, Michigan. Behold - the punching, the kicking, the headlocks, the expectorating, the cursing and the threatening.

No, you're not watching a "Freestyle Martial Arts Cage Fight", folks. This is a group of ladies (and their accompanying male "muscle") showing up at the "First Lady Bridal Shop" complaining about customer service. Highlights from the store video include alleged shots of the suspects shoving elderly Bridal Boutique owner Hekmat Putruss and his son Pierre to the ground, and spitting in the face of Salwa Putruss, the owner's wife.

Three of the men involved in the fracas face criminal prosecution and charges of assault and battery. Two of the Defendants, Mikhail and Nashwan Petros, are from Sterling Heights. The third Defendant, Nameer Kastaw, is from the City of Warren.

And now that a bridal shop worker has informed police that the gang threatened to burn down the store - we predict that the Putruss family will seek Personal Protection Orders.

The Defense Lawyer's remark that the shop owners provoked the melee may sound like a crude slap in the face, but, to us it sounds more like a litigation battle plan in the making. In fact, under Michigan law, provocation is a legal defense that may result in mitigation of the charges.

Ironically, the very nature of the crime may be the Defense Lawyer's best hope for an acquittal. It has been our experience that some of the most winnable criminal jury trials are assault cases involving multiple attackers versus multiple victims. That is because, in a setting like that, it is frequently difficult for an observer to distinguish an attack from a defensive maneuver. And it is even more difficult for a Prosecutor to conclusively dispel that confusion - when the burden of proof is beyond a reasonable doubt.

Bridal shop suspects were provoked, attorney says, The Detroit News, March 10, 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