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

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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

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

For the second time in less than two months, security was breached at Detroit Metro Airport in Romulus, Michigan.

Though the methods differed in each incident, both seem to involve a common theme: Mental illness. Statements by close family members support that evidence.

Post arrest comments by Michigan Criminal Defense Lawyers in both cases strongly hint that the issue of Legal Insanity will be in play in both criminal trials.

It almost goes without saying that a criminal defense lawyer should explore the defense of Legal Insanity, where the criminal defendant displays psychotic behavior. Where the elements of the crime committed also require proof of specific intent, however, the Defense Team may have a formula for acquittal.

On many levels, though, the defense of legal insanity is a steep mountain to climb. First, societal attitudes toward mental illness and the Defense of Legal Insanity are filled with skepticism and even cynicism. Second, Lawmakers have reacted to those attitudes by raising the bar and imposing formidable obstacles. For example, the Michigan Legislature tinkered with the 400 year old principle of American Criminal Procedure which required the Prosecutor to prove his allegations 'beyond a reasonable doubt'. Lawmakers in Lansing, Michigan simply moved the goalpost by shifting the burden of proof to the Criminal Defendant, when raising the Defense of Legal Insanity.

Third - the law forbids the Defense Lawyer from informing the Jury that an acquittal on grounds of Legal Insanity will not result in the Criminal Defendant walking out of the Courtroom a free man. Since many cases involving the Defense of Legal Insanity include heinous crimes and homicides - the lack of information about post-trial disposition raises the danger that the jury will reject the Defense on purely emotional grounds.

Finally - the most daunting hurdle facing the Criminal Defense Lawyer is often the seriously mentally ill client himself. That is because a hallmark of the disease is lack of insight. That blind-spot commonly hampers the Defendant's ability to participate in his own defense. To counter that deficit, the Defense Lawyer's team must include sympathetic family members and highly trained mental health professionals.

Because in the end, often the only way to answer the ill-informed Jury's concerns is to convince them that the Defendant is not the cause of the incident - the cause of the incident is the mental illness.

Airport security breach suspect suffers mental problems, family says, The Detroit News, February 10, 2010