Michigan Criminal Lawyers Blog

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