Michigan Criminal Lawyers Blog

Finally, the verdict is in. An Eaton County jury in Charlotte has found William Bryan Polston, 39, guilty of multiple counts of Criminal Sexual Conduct in the 1st Degree, a felony carrying up to life in prison. Polston is a former Okemos, Michigan High School teacher. He had been accused of engaging in sexual relations with a student between the ages of 14 to 16.

Under traditional incarnations of the Criminal Sexual Conduct statute, the ultimate penalty (up to life in prison) was applicable in cases of forceable rape. Michigan's current statute, however, sets forth a litany of grounds for charging under the CSC 1 statute. Included in that list is sexual contact involving penetration, between a teacher and a student who is between the ages of 13 and 16, and who is enrolled in the teacher's school. Neither consent nor mistake are legal defenses. That is the net that snagged Polston.

The sexual encounters in this matter occurred in 2003 and 2004. Today, the victim is 22.

Many non-lawyers are surprised to learn that, in criminal trials, the side that presented the stellar lawyering frequently finds itself on the losing end, while the side presenting the more pedestrian case may wind up with a win. The reason for that paradox is simple: It's easier for the shooter to hit the bullseye when he's standing 6 inches from the target. An apt metaphor for what happened in the Polston trial, which, as we shall see, was an air-tight case for the prosecution.

Polston was represented by one of Lansing's best criminal defense lawyers. In the Blog's opinion, the defense strategy was a near textbook example of excellent lawyering.

By the end of the trial, the litigation chessboard looked like this: The prosecutor's main gambit was to hang the criminal defendant with his own words. To that end, the prosecutor used telephone conversations between Polston and the victim, which the victim had surreptitiously recorded. In those conversations the victim asked the defendant to explain why he sought sex with her and why he pursued the relationship.

Polston replied "I have no justification" and "I had the ability to say no, and I didn't". Although falling short of a full blown confession, the statements were usable by the prosecutor as 'party admissions' (a legal term of art).

In a nutshell, a confession is a knowing and voluntary statement that supports all of the necessary elements of the charged crime. The elements of a crime are like the wheels on a car--if one is missing, the car won't drive. In contrast, an admission is a statement by the defendant, whether oblique or unequivocal, which can be interpreted as supporting some (but not all) of the elements of the offense, or which may tend to undermine the defendant's credibility (where the defendant testified at trial).

Couple those principles with a jury instruction which states that, if the jury finds that the defendant actually made the statement, the jurors may give the statement whatever weight [they] think it deserves--and you have a formula for disaster for the defense team.

So what's a competent criminal defense lawyer to do? First and foremost, shift the jury's focus to evidence which tends to tarnish the victim's halo. And of course, few if any strategies get the job done like undermining witness credibility. That is because all evidence comes from the mouths of witnesses (even most documents, photographs and things must be admitted into evidence upon witnesses testimony that the item is what it purports to be). Thus, in the final analysis, credibility is almost always the linchpin upon which the outcome of the trial will turn.

To that end, Polston's defense lawyer deftly turned to the matter of 'witness interest', a principle of evidence. Under current Michigan case law, a jury may view a witness's interest in the outcome of the litigation (or other litigation) as evidence that the witness's testimony is motivated by something other than pure honesty. Another jury instruction informs the jury that they may reject all or part of the testimony of a witness who the jury deems to have testified falsely.

Here, the defense attorney established that, before the matter was ever brought to the attention of the authorities, the victim had retained a lawyer to wring a big payday out of the defendant. Moreover, the jury was informed of the amount of that resolution: $70,000.00. The implication was that the victim concocted the story for pecuniary gain.

Supporting that theory was testimony by the very lawyer who set up the monetary settlement. The attorney confirmed that the victim chose not to push for Polston to be banned from teaching, because that outcome would have left him unable to pay. Since a teacher found to have sexually molested an underaged student must be terminated, a reasonable interpretation might be that the information was withheld from school officials for pecuniary gain (reporting is mandatory under certain circumstances).

And once the matter was finally reported, the informant was not the victim, but another teacher who caught wind of the tale--after the settlement deal was struck.

The potential blowback for the criminal defendant was that the jury would see the payout as hush money, a transaction which could be interpreted as evidence of guilt. The defense lawyer softened that angle, however, by explaining to the jury that defendant's only motivation was to protect his family from public scorn.

Though the statute provides for up to life in prison, on judgment day, the judge must consult the Michigan Sentencing Guidelines in handing down the penalty. The purpose of the guidelines is to ensure uniformity and equal justice in sentencing.

The guidelines provide a formula which quantifies the unique facts of the case. Points are assessed for the various details. The points are distilled into a score, which pinpoints the final proposed sentence. The judge must abide by that recommendation, unless substantial and compelling reasons warrant either an upward or a downward departure.

A cursory review of the applicable sentencing guidelines reveals that even the least egregious version of this crime warrants prison time. And with six proven violations hanging over his head, Mr. Polston would be well advised to engage an experienced Southfield criminal appellate lawyer.

Ex-Okemos Teacher Guilty Of Sexual Misconduct, The Lansing State Journal, January 14, 2011

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

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

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