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

Edward James Bruner, 58, an Ann Arbor Tae Kwan Do instructor, has been charged with the sexual molestation of a 12 year old child. Reportedly, the incident took place on I-94 near Chelsea.

Compounding Bruner's plight is a second claim of sexual abuse by another minor.

Though few details are available at this early juncture, the fact that the arraigning judge denied bail fills in blanks.

Generally, the average criminal defendant is entitled to bail and release from custody, pending trial. Under a related court rule, however, a judge may deny bail in cases involving criminal sexual conduct 1st degree (CCS 1).

CSC 1 is a felony carrying up to life in prison. It is applicable to a range of circumstances, including cases where the criminal defendant engaged in sexual penetration with a minor under the age of 13.

The strengths and weaknesses of Bruner's case will turn on the quality of the evidence. Those facts will emerge at the preliminary examination. That is an adversary proceeding which takes place in the district court.

At that hearing, the prosecutor is required to produce evidence in support of each of the necessary elements of the charged offense. In this case, the necessary elements of the offense are (1) sexual penetration (2) of a person under the age of 13. If even one element of the offense lacks a factual basis, technically, the judge must dismiss the case.

On the other hand, where each element is supported by at least some evidence, the judge is required to transfer the matter to the higher court for trial. In other words, at the lower court level, the hearing is not a trial, but a gate keeping function.

The criminal defense lawyer is entitled to cross examine and challenge the prosecution witnesses. Undermining credibility rarely results in a dismissal at the preliminary examination level, because the applicable burden of proof is so low. If the credibility of an indispensable witness is completely lacking, however, according to the Michigan court of appeals and the Michigan supreme court, a dismissal on that basis may be justified.

Because over 90% of all preliminary examinations in Michigan result in transference to the trial court, most criminal defense lawyers handling such cases use the preliminary examination for information gathering purposes. Another goal of the criminal defense lawyer is to lead the witnesses into making various statements that may prove helpful to the criminal defendant at trial.

The fact is, all testimony comes from the mouths of the witnesses (even most documents, photographs and things must be introduced into evidence through the testimony of knowledgeable witnesses).

Thus, the quality of the testimony at trial is critical. That is due in part to an instruction that the judge reads to the jury at the beginning and the end of every trial. In a nutshell, the judge informs the jury that they may reject witness testimony which the jury deems to be lacking in credibility.

The judge also gives the jury a list of circumstances that might indicate incredibility. Prior inconsistent statements are included in that list.

At trial, the lawyers possess written transcripts of the preliminary examination. Where a witness gives a different answer at trial to a question that he answered at the preliminary examination, the criminal defense lawyer is within his rights to highlight that discrepancy in closing arguments.

The prosecutor's burden of proof at trial is "beyond a reasonable doubt". A reasonable doubt is a doubt based on the facts or lack of facts adduced at trial. The size of the doubt is not mentioned in the jury instructions. If follows, therefore, that even a small doubt may suffice as a reasonable doubt--and compel a verdict of not guilty.

And as most prosecutors and criminal defense lawyers know, few things shout reasonable doubt like dubious witness testimony.

CHELSEA: Tae Kwon Do teacher accused of molesting child on I-94, Chelsea Standard Newspaper, January 20, 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

A teacher at a greater Lansing Catholic school has been accused of sexual assault against two boys under the age of 13. Christopher DeMorrow of East Lansing faces charges of Criminal Sexual Conduct, 2nd degree, a 15 year felony--and Gross Indecency between males, a 5 year felony. DeMorrow has since relocated to Ludington.

Conviction for the 15 year felony charge requires publication of the perpetrator's name and address on the Sex Offender Registry.

DeMorrow is also charged with of domestic violence against his wife. That matter arose prior to the criminal sexual conduct charges. Ironically, the Blog hints that the pendency of that charge may turn out to be a windfall for the criminal defendant, and may contribute to a not guilty verdict at DeMorrow's upcoming sexual abuse trial. Stay tuned!

Reportedly, DeMorrow committed the sexual abuse offenses at his home in East Lansing. Because the matter involves minors, the Blog is unable to obtain full details. Factors which may bring the crime within the ambit of the Criminal Sexual Conduct 2nd degree statute include sexual abuse of a minor under the age of 13, or abuse of a minor between the ages 13 and 16, enrolled in a school where the perpetrator is a teacher, or abuse of minors within that second age range, where the teacher used his teaching position to gain access to, or to establish a relationship with, minors who are not enrolled in the teacher's school.

What makes the story a cliff-hanger for DeMorrow is the mercurial nature of "evidence". Many non-lawyers are surprised to learn that evidence is nothing more than the testimony of the witnesses, introduced at trial (with two inapplicable exceptions). Even items and photographs must be introduced into evidence through witness testimony. And for that reason, witness believability is the linchpin upon which every trial turns.

That said, many an "airtight" case has turned winnable for the defense once the witness testimony begins. Adding fuel to the fire is the requirement that the judge instruct the jury that they may reject testimony which they find to be lacking in credibility. The indicia of incredibility comprises a lengthy list.

If the charges allege that the abuse occurred at the DeMorrow residence, it follows that evidence placing the boys at the home is central to the Prosecution case.

A jury may doubt credibility where the criminal defense lawyer demonstrates that the witness has an 'axe to grind'. For example, if DeMorrow's wife testifies that she saw the boys at her East Lansing home on multiple occasions, DeMorrow's lawyer may force the wife to admit that she sought criminal charges against DeMorrow for domestic violence, that the couple is separated and that divorce proceedings are imminent.

Showing that the wife has an interest in the outcome of those other proceedings, and that casting DeMorrow in a bad light bolsters the wife's stance in that litigation, also undermines credibility.

Additionally, credibility may be eroded by emphasizing prior inconsistent statements. Young children are notorious for their loose usage of language. Moreover, a young teenager is rarely a match for a seasoned criminal defense lawyer. Thus, if the defense lawyer can prove that the witness answered a material trial question differently at a prior court hearing, the jury may be well within its rights to reject the witness' entire story.

For those reasons and more, once again, the Blog defers to the incisive wisdom of Yogi Berra, former New York Yankees baseball legend and one of the most revered folk philosophers of all time--who so aptly observed: "It's not over 'till it's over".

Grand Ledge Catholic School Teacher Accused Of Sexual Contact With 2 Young Boys, The Lansing State Journal, January 6, 2011

The Tuscola County District Court in Caro held a Preliminary Examination yesterday for a 26 year old Sebewaing man facing 20 counts of Criminal Sexual Conduct, Third Degree - a 15 year felony.

A Preliminary Examination is an evidentiary hearing where the Prosecutor must introduce evidence in support of each of the necessary elements of every charge. Provided that all components of the charges are supported by at least a scintilla of evidence, the Judge must transfer the case to the next highest court for trial. A charge lacking sufficient evidentiary support must be dismissed at the District Court level.

The charges allege that the young man had consensual sex with a girl under the age of 16, but over the age of 13 (formerly known as statutory rape). The incidents took place over the course of several months in 2005, at the girl's mother's home in Gagetown (at the time the Defendant was 21 or 22 years old, and the young lady was 14 or 15).

The Bay City Defense Lawyer came under some criticism for a line of questioning that he pursued. Some attorneys even characterized the inquiry as "aimless". Team RLG disagrees.

Specifically, the Defense Lawyer established that he "made numerous attempts to question the alleged victim prior to the preliminary examination, but ..." the victim declined to speak to the attorney.

In a case where the only evidence is the testimony of the Victim, the Defendant's entire fate hinges on witness credibility - or lack thereof. Accordingly, both the Michigan Court of Appeals and the Michigan Supreme Court have repeatedly held that the right to explore witness credibility is indispensable to a fair trial. In fact, it is an aspect of the Right to Confront Witnesses, as guaranteed by the United States Constitution. More specifically, under current Michigan case law, evidence of hostility toward the Defense can be considered as evidence of lack of credibility.

Because the victim's consent is not a defense to the charge formerly known as "statutory rape", these cases are all too often seen as indefensible. And for that reason, Team RLG must applaud the Defense Lawyer in this matter for his ingenuity. He spotted a toehold that most would have overlooked, and exploited it to the fullest. Most importantly, he put the Prosecutor's evidence to the test - which, in the final analysis, is the very heart and soul of our American system of criminal justice.

Sebewaing Man Charged With Slew Of Sex
Crimes Heading Back To Tuscola County Circuit
Court, The Bay City Times, March 13, 2010

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

Let's face it - the easy way out is for Lansing Criminal Defense Lawyers to blame overzealous prosecution as the primary reason for excessive jail sentences. The hard part is admitting that the Criminal Defense bar shoulders an important portion of that responsibility.

Day in and day out, in court rooms all across Michigan - from Detroit, to Pontiac to Grand Rapids and back - Defense attorneys routinely contribute to imposition of excessive sentences through inadequate preparation, lack-luster advocacy, inattention to detail and incomplete knowledge.

Michigan Criminal Law and Procedure has long required that most felony sentences comport with the Michigan Sentencing Guidelines. In a nutshell, the Guidelines are a complex formula which assess both the Criminal Defendant's prior criminal record as well as the unique facts of the crime. The final outcome of that analysis is a numerical score.

The Defendant's score tells the Judge what sentence to impose. Under the law, the Judge may only depart from the recommended sentence if he finds substantial and compelling reasons that would support a different outcome.

A body of Michigan case law exists which interprets many of the sentencing criteria included in the Sentencing Guidelines. Those cases shed more light on some of the more confusing sentencing considerations.

A commonly misunderstood sentencing criteria is Prior Record Variable #7. That variable assesses points for "subsequent or concurrent" felony convictions. Courts have been known to confuse that variable with the criteria relating to the Defendant's prior conviction history - and to assess additional, unjustified points.

Those additional points can translate into additional years in prison for the the Criminal Defendant. And that is yet another reason why the Criminal Defendant must ensure that he has an adept, alert and knowledgeable Defense Lawyer at his side, at every stage of the process.

Commissioner: Closing jail post means inmates 'should be cheering plan', Lansing State Journal, February 6, 2010

The topic of sex crimes is front and center in the Ann Arbor media - and for good reason. After receiving multiple reports of a man committing indecent exposure in the area - the Ann Arbor Police are on the lookout for a serial "flasher".

On Monday, February 8, 2010, two men were charged - in an apparently unrelated matter - with criminal sexual conduct for having sex with 2 teenage girls, under the age of 16. What is unusual about the criminal complaint is that it charges the men with Criminal Sexual Conduct, First Degree - the most serious charge possible under the Michigan criminal sexual conduct statutes. Potential penalties include incarceration - for up to life in prison.

Absent any additional aggravating circumstances, sex with a minor between the ages of 13 and 16 can bring a charge of Criminal Sexual Conduct, Third Degree. The possible penalties under that statute include prison for up to 15 years. Moreover, the statute is unusual in that probation is not an option.

A component of Michigan Criminal Justice is the Prosecutor’'s right to decide which charge is appropriate under the circumstances. Bowing to public hysteria, however, is nothing more than an abdication of Prosecutorial discretion.

Two Ypsilanti men charged in rape of two underage girls, A2 Ann Arbor Journal, February 8, 2010