Michigan Criminal Lawyers Blog

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.

Farmington Doctor Guilty In $18M Medicare Fraud Case, The Detroit Free Press, March 11, 2010

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 Fuming Monica Conyers Seeks Appeal, The Detroit Free Press, March 11, 2010

"

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.

Prosecutors Seeking New Charges Against Kilpatrick, The Detroit Free Press, February 27, 2010

Today, Mr. Akio Toyoda, President of Toyota Motor Group, appeared before the United States Congress offering apologies, condolences and acknowledgements of problems with Toyota vehicles.

Meanwhile, back at the Justice Department, Federal Prosecutors were floating the idea of filing criminal charges.

No doubt Mr. Toyoda's Corporate advisors assured him that testifying made excellent business sense. And if his lawyers advised the Boss that the Rules of Court bar evidence of subsequent remedial measures in a civil trial, their advice was technically correct.

In the Public Relations business, the advice de jour is to get out in front of the news with frank admissions and profuse apologies. But even the great Akio Toyoda can't run a global car company from a jail cell.

On the criminal law side of the equation, the advice is quite the opposite. At trial, all evidence comes through the mouths of witnesses (even physical evidence is introduced through testimony). So in every trial, the Defendant's entire fate turns on the words spoken from the witness stand. And few items of trial evidence can be more devastating than the Criminal Defendant's own statements.

In the context of a Criminal Trial, the Defendant's words fall into two categories: Admissions and Confessions. Under current Michigan case law, an admission is any relevant statement made by the Defendant. In contrast, a confession is any statement that supports all of the elements of the criminal charge. In other words, an admission is a mere brick in the wall, while a confession is the entire structure.

That said, the Criminal Defense Lawyer's best advice ahead of testifying before the Congressional panel yesterday would have been: Use the "IF" word.

For example - instead of Mr. Toyoda stating "We pursued growth over the speed at which we were able to develop our people and our organization, and we should sincerely be mindful of that", Mr. Toyoda should have said: "IF we pursued growth over the speed at which we were able to develop our people and our organization, we should sincerely be mindful of that.

What difference can a simple two letter word make? In this case - perhaps the difference between jail and freedom.

UPDATE 1-Toyoda says 'deeply sorry' for accidents, Reuters US Edition, February 23, 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

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