Michigan Criminal Lawyers Blog

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.

Former deputy city attorney Carl Gabrielse sentenced to six month jail term in sex assault case,The Holland Sentinel, February 25, 2010

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.

Riddle Ordered To Wear Tether, Hits Back At Critics, The Detroit News, February 19, 2010

Faced with a charge of failure to satisfy restitution installment payments, former Detroit Mayor Kwame Kilpatrick raises the legal defense of impossibility.

Predictably, Detroit Criminal Defense Lawyers and Prosecutors have squared off on opposite sides of that argument.

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.

Experts: Kilpatrick risking jail over restitution claims, The Detroit News, February 12, 2010