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.
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.
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.
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 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.
If there were an award for creative lawyering, first prize would have to go to the attorney who represented the Assistant Holland ( Michigan ) City Attorney charged with Criminal Sexual Conduct Third Degree, a 15 year felony.
The salient - if not salacious - facts of the case are riveting. The Assistant Holland City Attorney was at Court conducting Pre Trial Conferences. That is the meeting where plea bargains and sentence bargains are hammered out.
The City Attorney met with a 21 year old young lady facing a drunk driving charge. The Prosecutor's offer? Reduction of the drunk driving charge to next lowest offense in exchange for - sex. Reportedly, an agreement was reached and the deal was sealed in the nearby locked restroom.
We can only imagine how the young lady must have felt upon later learning that the vast majority of Drunk Driving charges are reduced to the next lowest offense anyway - that being Operating While Visibly Impaired.
Of course, one person who isn't wondering how the young lady felt when she learned the statistics is the Assistant City Attorney. That is because, after coming to her senses, the victim reported the incident to the Police. Ouch!
Nonetheless - the blue ribbon is due to the Defense Lawyer in this case because, under the law - the Court may not impose probation for Criminal Sexual Conduct Third Degree (which virtually guarantees a long prison or jail term). Yet, for all intents and purposes, at his upcoming sentencing, the Holland City Attorney will receive what amounts to a light probationary sentence.
And just what feat of magic did the Defense Lawyer conjure up? Unfortunately for the Blog - absolutely none. In fact, all Defense Counsel did was pull a statute out of a dusty old law book. A statute referred to as "The Delayed Sentencing Act".
Under that Statute, the Judge may delay the Defendant's sentence for up to one year. Since no Judgment of Sentence is officially entered, it cannot be said that the Defendant's case has been conclusively "adjudicated". The charge simply continues to pend, so the Court may impose conditions. At the conclusion of the period, after a compliance review, the Judge may dismiss the charges.
Most important for the Holland City Attorney is the fact that, in the end, the original charge will be dismissed and the Defendant will be instead convicted of the much lower offense of Gross Indecency. The main benefit being that the Defendant will not be required to add his name to the Michigan Sex Offender Registry.
Though a judge may impose a sentence of incarceration under the MichiganDomestic Assault Statute, the real minefield that the Criminal Defendant must navigate includes the Court's bond conditions and conditions of probation.
For the first-time offender with a clean criminal record, those are the stages of the criminal process where jail terms are most commonly handed down. That is because, in many such cases, the Court offers the Defendant a strictly probationary sentence - with complete dismissal of charges without conviction - upon successful completion of the Court's requirements.
Of the nearly 8,000 Domestic Assault cases filed each year in Michigan's Wayne County and Detroit Courts, many involve mutually hostile relationships between estranged spouses, divorcing spouses and other such couples. In other words - many of the victims have axes to grind.
Typically, bond and probationary conditions strictly prohibit the Defendant from any contact whatsoever with the victim. Most Judges emphasize that "no contact" means no letters, no email, no instant messages, no telephone calls, no third-party messages and no physical proximity within a certain perimeter.
And therein lies a formula for disaster - for even the Defendant with the best of intentions. An example of how the situation can unexpectedly spin out of control involves Sam Riddle, a former top aide to ex-Detroit Councilwoman Monica Conyers.
Mr. Riddle had been charged under the Domestic Assault Statute for allegedly assaulting his live in companion, former State Representative Mary Waters. Riddle's bond conditions included a no-contact order. According to Riddle - he was present at a Birmingham, Michigan theater when he inadvertently encountered Ms. Waters. Riddle's version is that Ms. Waters initiated communication.
Fast forward to the Wayne County Circuit Court in Detroit. Mr. Riddle is standing before Judge Gregory Bill. We cannot know exactly what is running through Judge Bill's mind. What most Criminal Defense Lawyers do know, however, is that few court settings bring down immediate jail time like a bond violation hearing.
Meanwhile, Judge Bill is mulling over his list of options. Topping that list, of course, is serious jail time. Finally, the Judge announces his decision: The Court will monitor and supervise Mr. Riddle's whereabouts through an electronic tether affixed to Mr. Riddle's ankle - 'until further order of the Court'.
Riddle's response? "Man, I can't wear my cowboy boots with this thing on".
And with that, we can only hope that the Defendant has a competent, effective and alert Criminal Defense Lawyer by his side to keep track of priorities.
Faced with a charge of failure to satisfy restitution installment payments, former Detroit Mayor Kwame Kilpatrick raises the legal defense of impossibility.
The Defense of Impossibility was a valid legal defense at Common Law. Tracking with the current trend to narrow the rights of citizens facing criminal charges, however - the Michigan Courts have done away with that legal defense.
Fortunately, the Michigan Courts lack jurisdiction to abrogate simple logic and plain common sense. Vestiges of that Legal Defense, therefore, continue to play a central role in a wide range of criminal offenses. The charge of probation violation currently facing Former Mayor Kilpatrick is a good example.
The United States Supreme Court in Tate vs Short held, in essence, that we run the risk of creating a two-class system of justice - one for the wealthy and another for the rest of us - when we jail Defendants who are unable to pay, but free Defendants who have the resources. According the Supreme Court in the Tate case, that practice is repugnant to the Equal Protection clause of the US Constitution.
Reconciling Michigan's abolition of the Legal Defense of Impossibility with the U.S. Supreme Court's interpretation of the 14th Amendment to the United States Constitution (the Equal Protection Clause), leaves us with the following rule: Generally, an individual who sets out and intends to commit a crime, but falls short due to impossibility, may be convicted. In contrast, an individual who intends to comply with the law, but falls short due to impossibility, may be exonerated.
The final outcome for ex-Mayor Kilpatrick and other Criminal Defendants facing similar charges of Probation Violation, will, of course, turn on the effectiveness of the Criminal Defense Lawyer at the related criminal trial.
