Michigan Criminal Lawyers Blog

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

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

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

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

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

"

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

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