Michigan Criminal Lawyers Blog

Pontiac Lawyer Faces Felony Charges For Allegedly Smuggling Controlled Substances Into The Oakland County Jail

2010-05-12T18:03:15Z

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

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

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

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

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

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

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

Visiting Judge From Jackson, Michigan Rules Former Lansing Judge Must Stand Trial For Assault Against Okemos Police Officer

2010-04-20T00:05:03Z

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

Detroit Judge Denies Bond For Son Of Powerhouse Gym Founder Accused Of Murdering And Torturing Novi, Michigan Resident

2010-04-10T17:56:41Z

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

Battle Creek Judge Presiding By Assignment In The City Of Coldwater Grants Defense Lawyer's Motion For A New Trial And Sets Aside The Defendant's Conviction For First Degree Murder

2010-03-26T04:06:40Z

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

Police And US Senator Fight For Release Of Man Held For 25 Years In Jackson Prison For Murder Of 17 Year Old Battle Creek Girl

2010-03-18T18:35:34Z

Watch The Video For More Details

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

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

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

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

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

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

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

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

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

Bay City Defense Lawyer Represents Sebewaing Man Facing 20 Counts of Criminal Sexual Conduct - Caro Judge Transfers Case To Trial Court After Preliminary Examination

2010-03-16T18:35:51Z

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

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

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

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

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

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

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

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

Detroit Jury Finds Farmington Doctor Guilty Of Medicare Fraud

2010-03-14T06:18:52Z

Sticky-note to self: A physician who can't even fake his own bogus symptoms probably won't be adept at faking the bogus symptoms of thousands of patients.

If only Farmington Doctor Jose Castro-Ramirez had posted just such a note on his computer monitor, he may have avoided up to decades in prison and an 18 million dollar bill for restitution.

Instead, the good Doctor stands convicted of Medicare fraud and sits in a jail cell awaiting sentencing.

What the scheme lacked in finesse, it made up for in Chutzpa: 18 MILLION dollars in medical billings and fees - emanating from one Farmington Doctor's office.

The nuts and bolts of the White Collar Crime were simple. The Doctor writes unnecessary patient prescriptions for physical therapy. The participating patient is bought off and sent on his way with a prescription for pain killers. The Physical Therapy facility bills Medicare for services that it never provided. The Doctor and the Physical Therapy provider hit the jackpot.

Fast forward to the Doctor's fraud trial in Detroit Federal Court. Faced with a Mount Everest of irrefutable evidence, the Doctor dramatically falls ill. He is rushed by ambulance from the Courthouse to the Hospital.

The Defense Lawyer later claims that the Defendant's testimony is central to the case, that the Defendant is too ill to testify, and that the trial must, therefore, be adjourned.

The Judge orders that the Defendant's own Doctor examine him for fitness to testify. The examining Physician reports that the Defendant is able to participate. With that, the Judge orders that the trial goes forward.

Ultimately, the Jury finds the Doctor guilty on all 13 counts. At that point, the Defendant remains free on bond.

Meanwhile, the FBI is surreptitiously surveilling the Defendant's every move. They tail the Defendant as he drives his own car from his suburban home, down the freeway to the Federal Courthouse in Detroit. The Agents observe the Defendant sling one arm over the the seat, while steering with the other.

Even more telling is the Agents' observation that the Defendant puts on his oxygen supply apparatus - just prior to entering the Courthouse.

The Defense Lawyer requests that the Court allow the Defendant to remain at large pending his upcoming June 24 sentencing. The Lawyer stresses that the Defendant poses no flight risk, because he has surrendered his passport and wears an electronic tether monitoring device.

The Judge declined that request on grounds that the Defendant lacked credibility. Supporting that finding was the FBI surveillance report and the contradictory medical report on fitness to testify.

Farmington Doctor Guilty In $18M Medicare Fraud Case, The Detroit Free Press, March 11, 2010

Former Detroit City Councilwoman Monica Conyers Sentenced To Prison After Pleading Guilty To Bribery Charge

2010-03-12T03:25:34Z

Today, a Federal Judge in Detroit sentenced former Detroit City Counsel member Monica Conyers - wife of U.S. Congressman John Conyers, Jr., - to 37 months in prison.

That proceeding stems from a charge of bribery filed against Mrs. Conyers last year. The Indictment alleged that contractors seeking to do business with the City of Detroit, paid Conyers for her favorable vote on the matter.

At the sentencing hearing, the often fiery and pugnacious Conyers hit back hard. With a raised voice she declared: "I'm not going to be made a scapegoat for other people."

But perhaps Conyers' most bizarre courtroom outburst was her claim that she was 'guilty of extortion - but not bribery'. Recall from previous RLG blogs that an admission is evidentiary dynamite for the Prosecution. Which leaves us wondering whether the statement may pave the way for yet more criminal charges.

Finally, Mrs. Conyers demanded permission to withdraw her guilty plea. The Judge promptly denied the request.

The Court's decision was well grounded in both Michigan and Federal case law. First and foremost, whether the case is filed in the Detroit Circuit Court or the Detroit Federal Court, a Criminal Defendant cannot simply plead "guilty" in either forum. Rather, the Defendant must set forth an explicit factual basis - under oath and on the record - in support of each and every element of the criminal charge.

And as our readers have learned from previous RLG blogs, a statement that supports all of the elements of the crime is not just an admission, it is a confession - that being evidence of the highest order.

Further bolstering his decision was the Judge's observation that the Defendant's plea was knowing, voluntary and accurate. The Judge made those remarks because a guilty plea may be declared void if any one of those factors is absent.

At which point the Conyers camp announced that the Defendant would file an appeal, and requested that the Judge appoint an Appellate Lawyer for that purpose.

Because Federal plea bargains typically contain a clause requiring the Defendant to waive the right to appeal her guilty plea, however, that avenue of relief is certain to lead to a dead end, as well.

There is, however, at least some hope. First, the Department of Corrections may lop off 15% of the sentence on grounds of good behavior. Second, the US Attorney may request a sentence reduction, if the Defendant provides useful, material assistance or evidence in another criminal prosecution.

A Fuming Monica Conyers Seeks Appeal, The Detroit Free Press, March 11, 2010

Lathrop Village, Michigan Shop Owners Assaulted By Disgruntled Customers From Sterling Heights And The City Of Warren

2010-03-11T00:59:04Z

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

Defense Lawyer For Former Detroit Mayor Asks Detroit Appellate Court For A Stay of Proceedings; Detroit Prosecutor Threatens New Charges After Appellate Court Halts Circuit Court Probation Violation Hearings

2010-03-01T05:26:07Z

A chess game". That is what Michigan Law Professors are calling the Wayne County Prosecutor's recent decision to file a new set of probation violation charges against former Detroit Mayor Kwame Kilpatrick.

Comparing the meager advantages of that gambit to the potential fall out - we wonder if the plan even rises to the level of a game of checkers.

The Prosecutor charged the ex-Mayor with failure to pay court ordered restitution. Former Mayor Kilpatrick's Detroit Criminal Defense Lawyer pled poverty - or at least inability to satisfy the Court's requirements.

Raising that Legal Defense triggers the need for a hearing on the Defendant's ability to pay. If the Court finds that the Defendant can pay, then, by all means, the Court may sentence the Defendant to Jail for failure to comply with the conditions of his probation.

Hearings were held and the Judge warned the Defendant to pay by the Court ordered deadline or face the consequences. Normally, the next phase of the process would be the sentencing.

The Defense Attorney filed an Appellate Court Petition requesting a stay of proceedings. The Court of Appeals granted the Petition and temporarily halted the Detroit Trial Court hearings. In granting the request, however, the Appellate Court telegraphed its doubts about a Defense-friendly outcome.

A true Chess Master would have taken that as a clear signal to lay low, bide his time and wait for his opponent to simply step into the manhole.

Instead, the Prosecutor couldn't resist the temptation to compete. As we shall see, blindly punching back is rarely a good strategy - particularly when it is a mindless reflex.

Under current Michigan and Federal case law, actual, unconstitutional Prosecutorial vindictiveness can result in the dismissal of criminal charges.

If the Prosecutor goes forward with the plan to initiate new charges - the Defense Lawyer is almost certain to reply with a claim of Prosecutorial Vindictiveness, which will undoubtedly trigger additional rounds of protracted courtroom wrangling.

And that is yet another reason why, sometimes, the Lawyer's best Offense is to hold his fire - and quietly allow the other side to LOSE.

Prosecutors Seeking New Charges Against Kilpatrick, The Detroit Free Press, February 27, 2010

City Attorney in Holland Michigan Trades Drunk Driving Charges For Sex And Winds Up In The Defendant's Dock

2010-02-26T00:30:48Z

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

Southfield Michigan Criminal Defense Lawyers Recommend Liberal Use Of The "IF" Word When A Criminal Defendant Testifies About Possible Criminal Offenses

2010-02-24T19:27:45Z

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

Southfield Michigan Teenager To Face Third Jury Trial For Lathrop Village Murder - Family Hires New Team Of Defense Lawyers

2010-02-22T21:06:31Z

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

Violation of Bond Conditions Prompts Wayne County Circuit Court Judge In Detroit Michigan To Order The Defendant to Wear An Electronic Tether In Domestic Assault Case

2010-02-19T22:48:18Z

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

Jail for Former Detroit Mayor Kwame Kilpatrick Is Unconstitutional If The Defendant Was Unable To Comply With The Terms Of His Probation, Argue Wayne County Criminal Defense Lawyers

2010-02-15T19:05:28Z

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