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

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