Michigan Criminal Lawyers Blog

The Wayne County Prosecutor's Office in Detroit has charged a Lincoln Park, Michigan man--Ricky Netherton Jr., 28--with "Possession of Child Sexually Abusive Material", MCL 750.145c(4), a felony carrying up to 4 years in prison and fines of up to $10,000.00. Upon conviction, the defendant's name and address must be listed on the Sex Offender Registry, pursuant to MCL 28.723, et seq. The site is open to public viewing.

The criminal defendant is additionally charged with "Using a Computer to Commit a Crime", MCL 752.796; 752.797(3)(d), a felony carrying up to 7 years in prison.

The arraignment was held at the Wyandotte District Court. The Preliminary examination is scheduled for April 28, 2011. A preliminary examination is a gate keeping function. It is an adversarial court hearing where the prosecutor must establish that each of the necessary elements of the charged crime is supported by at least some evidence.

The elements of a crime are like the wheels on a car--if one is missing, the car cannot go forward.

The ultimate goal of Netherton's detroit criminal attorney at the preliminary examination is to successfully oppose the prosecutor's evidence and obtain a dismissal based on lack of evidence.

To that end, the criminal defense lawyer may have a lot to work with. That is because, what lit the fuse and brought Mr. Netherton to the attention of the Police, was a domestic disturbance.

The incident occurred at Netherton's apartment. The police were called and responded to the scene shortly thereafter. We deduce from various reports that Netherton was absent when the officers arrived. Nonetheless, it appears that the police were invited into the apartment and informed that Netherton was storing child pornography on his computer.

A password blocked access to the data, so the police sought and obtained a search warrant. Ultimately, forensic computer experts were able to extract the illegal child sexually abusive material.

No doubt the criminal defense attorney will mount a two-pronged attack: First, the spouse or other occupant involved in the residential malay clearly had an axe to grind. That is born out by the fact that she finally alerted the police to what she knew about the computer images--on the heels of a fight with Netherton.

That angle is important because, under Michigan law, evidence of an interest in the outcome of the litigation, and evidence of hostility toward the defendant, may be considered by the jury as evidence that the witness telling the tale is not credible, People v Glover and People v Borowski .

That is argument is critical, because all evidence comes from the mouths of the witnesses. Moreover, the presiding judge will instruct the jury that, if they find that the witness testified falsely on a material matter, they may reject the witness' testimony in its entirety.

Another tack which might turn the criminal trial Netherton's way is the argument that Mr. Netherton was not the only occupant of the residence.

After all, the prosecution bears the burden of proof. Moreover, that burden never shifts to the criminal defendant. In fact, the criminal defendant is never required to prove anything in a criminal trial (unless he raises certain affirmative defenses, in which case he may be required to produce at least some evidence in support of each element of those defenses, at which point the burden of proof shifts back the to prosecutor).

The burden of proof in a criminal trial is "proof beyond a reasonable doubt". In other words, if a jury is left with a reasonable doubt as to the criminal defendant's guilt, it must return a verdict of not guilty.

An interesting footnote to the judge's jury instruction on burden of proof is that the instruction is completely silent as to the size of the doubt. Thus, it can be truthfully and accurately stated by the criminal defense attorney in closing argument that even a small doubt can amount to a reasonable doubt, if it arises out of the facts or lack of facts brought out at trial.

Another compelling and effective defense argument is that there are only two possible verdicts in a criminal trial (except where the issue of legal insanity is in play): Guilty or Not Guilty. Contrary to popular myth, there is no such verdict as innocent. Hence, a jury may be obligated to find a criminal defendant not guilty, even if they remain skeptical of his innocence.

No doubt the future looks grim from the window of Netherton's cell in the Wayne County Jail. But there is also plenty of room for optimism, considering the weaknesses of the prosecution case.

Riverview Man Accused Of Possessing Child Pornography, Suggestive Adult Photos, The News-Herald, April 20, 2011

If you've ever doubted that the Tenth Commandment ("Thou shalt not covet thy neighbor's house...etc.") lacked sufficient gravitas for inclusion in the top ten, this edition of the blog may change your mind.

Reportedly, at about 5:45 a.m. on or about February 5, 2011, Jeston Lawrence, 28, of Lansing - arrived at a random Lansing area apartment, began banging on the door and demanding entry.

Awakened by the commotion, the 64 year old man of the house cracked the door to investigate--at which point the intruder barged into the residence, exclaiming that he lived there. A struggle ensued in which the intruder repeatedly struck the gentleman and forcefully shoved his elderly wife.

The male resident warned that he had a gun and ordered Mr. Lawrence to leave. Lawrence ignored the warning and continued to assault the duo. Finally, the resident shot the intruder at close range and killed him.

Because the matter was technically a "homicide" (any grossly negligent, reckless or intentional killing of another person), the Ingham County Prosecutor's Office was required to launch an investigation into the propriety of the shooting. Ultimately, the Prosecutor concluded that the shooter acted in lawful self defense.

Lawrence's mother, Ethel Richards, 51, of Brant, Michigan, disagreed with the Prosecutor's assessment, emphasizing that her son was not prone to violence and probably thought that he was at the home of a friend. As we shall see, Mr. Lawrence's state of mind has virtually nothing to do with the outcome of this case.

Supporting the Prosecutor's conjecture is the statement of one of the intruder's friends. That individual reported that Mr. Lawrence had been intoxicated earlier that evening and that he was staying at the apartment of an acquaintance located in the same complex.

All of which raises the issue of self defense. Michigan is a so-called "Stand your ground" state. That means that an individual who has not or is not in engaged in the commission of a crime may use deadly force to protect himself from imminent death or great bodily harm, at any location where he has a right to be, without any duty to retreat. Where warranted, that fact pattern amounts to a complete defense to a criminal charge within the murder and assault & battery categories--including felonious assault and assault with intent to do great bodily harm less than murder.

Key to the defense is the defendant's honest and reasonable belief that deadly force was necessary to repel a potentially deadly or seriously injurious attack. Thus, proof of the attacker's actual intent or plan is not required--in fact, once the requisite state of mind of the accused has been established, the attacker's actual intent or plan becomes irrelevant.

On the other hand, hypothetically, if the shooter initiated an unlawful assault & battery against Mr. Lawrence, and if Lawrence was lawfully defending himself from same, the shooter's claim of justifiable homicide might fall flat at trial.

The outcome of any such matter always turns on the unique facts of the case. Since Mr. Lawrence was deceased, the apartment residents were the only informants. In the mind of the Prosecutor, bruises consistent with the residents' information confirmed their version of the events.

And with that, the Southfield criminal defense lawyer representing the party whom fired the handgun is on solid ground--because few fact patterns say "not guilty" like a mutual affray between two or more grappling combatants.

No Charges In Lansing Home Invasion Shooting, Lansing State Journal, February 5, 2011

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

Demonic. Depraved. Heinous. Those are just a few of the printable comments that the Blog has overheard in response to news of the assault on a 13 month baby in Commerce Township.

At first blush, the details are like a scene out of the Exorcist. Kirsty Leigh DeHuff , 26, her husband and their 13 month old son were sitting in the car in the residential driveway when, suddenly, Mrs. DeHuff exclaimed that she 'had something to do', and with that, dashed into the couples' home, clutching her son.

Mr. DeHuff followed and was no doubt aghast at the scene that met him upon entering the residence. Apparently, Mrs. DeHuff had picked up a knife and stabbed her own baby--puncturing his lung.

Understandably, the public tends to see such a defendant as an irredeemable monster. But after digging deeper into the facts, the Blog finds itself in complete sympathy with, and fully supportive of, the entire DeHuff family.

Our research reveals that, as far back as the 16th Century, the medical literature recorded incidents of otherwise loving new mothers killing their own babies.
In fact, the phenomenon has been noted worldwide, for thousands of years. Though it was an inexplicable mystery, even in ancient times it was met with a measure of sympathy. No doubt such a radical departure from the maternal instinct signaled sickness--not evil.

Modern medicine now knows that the phenomenon is an organic brain disorder. What drives the bizarre behavior has nothing to do with malevolence and everything to do with a chemical imbalance in the brain. And today, it has a name: Post-partum depression and post partum psychosis.

Hormonal fluctuations associated with pregnancy are what trigger the syndrome. Armed with that knowledge, many obstetricians now educate their patients about the condition. The hope is that the informed patient will turn for help at the first signs of symptoms. Nonetheless, when an adult stabs a baby, the police must be called in.

Ultimately, the Oakland County Prosecutor in Pontiac filed a criminal complaint against Mrs. DeHuff . The charge was Assault With Intent To Commit Murder, a serious felony punishable by up to life in prison.

Like all crimes, that particular offense is comprised of necessary elements. Under the law, if even one element lacks a factual basis, the entire charge must be dismissed. Because a mental condition may have played a role in the incident, the necessary element most vulnerable to attack in this matter would be the specific intent component.

That said, as a practical matter, the only possible defense under the circumstances would be legal insanity. In a nutshell, the defense is based on the reality that a mere act rarely, in and of itself, amounts to a crime. For example, a student accidentally walking into the neighbor's adjacent, identical dorm room has not committed the crimes of entry without permission or breaking and entering--because there was no criminal intent.

The averment of legal insanity can amount to a complete defense to a specific intent crime. The statutory definition of legal insanity is: "A substantial disorder of thought or mood that significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life." Psychiatrists take that to mean psychosis.

Another related statute provides that, if the defendant lacked the capacity to appreciate the nature, quality or wrongfulness of his conduct, or to conform his conduct to the requirements of the law--due to a substantial disorder of thought or mood, then the Defendant must be found not guilty by reason of insanity.

DeHuff's East Lansing based criminal defense lawyer used expert psychiatric witnesses to provide the factual basis in support of the claim. In the absence of any prosecutorial counter evidence, the Pontiac trial judge was compelled to enter a verdict of not guilty by reason of insanity.

Consequently, the law requires that DeHuff be committed to the Center for Forensic Psychiatry in Ypsilanti for no less than 60 days. The ostensible reason for the commitment is examination, diagnosis and treatment. She must remain there (or at another facility), until her psychosis abates and/or she no longer poses a danger to herself or others.

Mom found insane in baby stabbing could return to
family soon, The Daily Tribune, January 5, 2010

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

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