Michigan Criminal Lawyer Blog

Articles Posted in Criminal Law

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This blog is long overdue. In this blog I will attempt to explain the reasons that make it so difficult to get a domestic violence dropped or dismissed.

The Prosecutor Represents the People of Michigan or Municipality Where the Offense Occurred

First of all, it is important to understand that once a criminal case is pursued, the prosecutor represents the people or public at large for a specific jurisdiction. County Prosecutors have authority to pursue criminal cases on behalf of the “People of Michigan”. City or township prosecutors have authority to prosecute those that are accused of committing ordinance violations within their jurisdiction. Federal criminal cases are prosecuted by the District Attorney’s Office. For this reason, the court title of any criminal case is:

• People of Michigan (plaintiff) vs. John Doe (defendant), or,
• People of Shelby Township (plaintiff) vs. John Doe (defendant), or,
• People of the City of Sterling Heights (plaintiff) vs. John Doe (defendant).
• For Federal cases: United States of America (plaintiff) vs. John Doe (defendant)

Every criminal case is pursued on behalf of the people within that jurisdiction by the appropriate prosecuting official or city attorney hired by a municipality or township. The victim of a criminal case is not named as the plaintiff or a party to the case. The victim is named as a witness and later can be subpoenaed as a witness to testify against a defendant in a case which is being pursued on behalf of the people.

Why Won’t the Prosecutor Dismiss a Domestic Violence Case When the Victim Wants it Dropped

As I stated in another article, the party pressing domestic violence charges may immediately have regrets and want to get it dropped. Since most domestic violence cases start out with a frantic 911 call when tempers are flaring, the person making the call rarely knows or understands the ramifications to the other party until later. A domestic violence conviction can label the victim’s spouse or significant other as a violent person which triggers legal entanglements and loss of valuable rights (inability to get a concealed weapons permit, inability to travel across international border to Canada). Unfortunately, getting the case dropped is not easy.

The policy to prosecute those accused of domestic violence/assault is something that has evolved over many years. In my opinion, the issue of domestic violence/assault became a national issue following the Michigan case of People of Michigan vs. Francine Hughes. Ms Hughes was charged with murder after setting her ex-husband’s bedroom on fire in 1977. Her attorney argued self-defense. The jury, who was moved by her circumstances as a battered spouse and the victim of physical violence for several years, found her not guilty. In 1984, the case was profiled in a movie, “The Burning Bed“, starring Farrah Fawcett, which is credited as being influential in the way domestic violence cases are handled.

Now, public policy is a strong factor in the prosecution of domestic violence cases. There are several governmental agencies involved in the criminal process when someone is charged with domestic violence/assault. The government agencies that I am referring to are the police, prosecutor and the judge. Behind the scenes, the government also employs victim’s rights advocates and probation officers. The victim’s rights advocate becomes involved immediately to promote the rights of the victim during a pending criminal case. The probation department becomes involved to make sentence recommendations and monitor a defendant after a guilty plea or verdict. All of these government agencies are usally located within the same building or government complex. All of these government agencies, with the exception of the court, are aligned on the side of law enforcement/prosecution; not on the side of the accused.

The Role of the Police in Domestic Violence/Assault Cases
Let’s talk about the role of the police, or first responders, to a domestic violence call. Long gone are the days when the police made a domestic call to a residence and let the alleged perpetrator go to the corner bar to cool off. The police can no longer make judgment calls as to who is right and who is wrong when they investigate domestic violence cases. Once an allegation of an assault is made (any intentional touching of another without consent), an arrest will occur. There is no such thing anymore as getting the case dropped on the spot. The reason for this attitude is based upon several valid grounds. First of all, the function of the police is to investigate and report their findings to the prosecutor, not determine guilt or innocence. Second of all, the police fear that a serious injury or death may occur should they fail to take action by removing the alleged suspect from the premises. Lastly, the police face serious criticism and potential liability if they fail to act and a party is later injured or killed. Therefore, public policy favors an arrest and issuance of a “no contact order” as an interim bond condition.

The Role of the Prosecutor
The police take their investigative report to the prosecutor for review. It is the prosecutor that authorizes the criminal case against the accused party. The county prosecutors in Michigan are elected officials. As an elected official, it is in their best interest to show the public that they are tough on crime. Again, the public can be critical in situations when a prosecutor is weak on crime or easily drops cases. For this reason, prosecutors will object to a dismissal motion by defense counsel when a victim a victim fails to appear in court. Some prosecutors will go to great lengths to track down an uncooperative victim. Like the police, the prosecutor’s office needs to avoid scandal and any scenario where someone is injured or killed because of a failure of the system to protect the public. Upon authorizing criminal charges, the case is turned over to the court system for criminal legal proceedings. Misdemeanor domestic violence/assault cases are handled in the district courts.

The Role of the Judge and Court
Once a case is in the court system, a judge is assigned to the case. Judges, like prosecutors, are elected officials in the State of Michigan. The judge’s role in a criminal case is to keep order, control the proceedings make rulings on evidence and answer motions or requests by the parties. In theory, a judge is impartial and does not concern himself or herself with the dispute between the parties. In some cases, a defendant may want the judge to act as the trier of fact without a jury. This is called a waiver trial or bench trial. This would empower the judge, acting alone, to render a verdict of guilty or not guilty. However, a person charged with a crime may not have a choice in the matter because either the prosecutor or judge may force a jury trial even when a defendant is willing to waive the same. In my opinion, judges tend to favor jury trials in cases with strong public policy, the presence of the media or where a certain verdict (by a judge without a jury) could subject the court to disapproval.

The Role of a Lawyer in Domestic Violence Cases
If you have been following along, then you should realize:

The police pass the case up to the prosecuting attorney. The prosecuting attorney then passes the case up to the court. The victim’s right advocate is a watchdog and acts as a voice for the victim. The court can decline to accept the role as the trier of fact the case and pass the case along to a jury. Nobody knows what a jury will decide. Should a defendant plead guilty or be found guilty, the court passes the case to the probation department.

The scales of justice are heavily weighted in favor of the prosecution in criminal proceedings. Police, prosecutors and judges want to avoid censure, avoid liability and remain popular in the eyes of the public. The people that are selected for a jury trial are not always who you think they are. If this sounds overwhelming and scary, it should. Only an experienced attorney can navigate someone in the criminal justice system and hope for a favorable outcome. A seasoned criminal defense lawyer knows when to work with the system, not against it. For starters, you may need answers to one or more of the following questions:

  • Can a no-contact order be lifted?
  • Can a domestic violence/assault case be dismissed without trial?
  • What happens if the victim in a domestic violence/assault case wants it dismissed?
  • What happens if the victim in a domestic violence/assault case fails to appear for trial?
  • Can I argue that I acted in self-defense in a domestic violence/assault trial?
  • Why am I charged with domestic violence/assault if I was only trying to avoid a fight?
  • Will the victim be charged with a crime if he or she changes the story?
  • *Will the victim be charged with contempt of court if he or she fails to obey a court notice or subpoena?
  • Can the victim file a supplemental report with the police or prosecutor?
  • What does it mean when a criminal case is dismissed without prejudice?
  • What does it mean when a criminal case is dismissed with prejudice?

*It is unethical for an attorney to advise anyone to ignore a court notice or subpoena.

We have written extensively about domestic violence cases and cannot go into detail answering all of the above questions without being repetitious with respect to other articles and blogs on the subject. Please browse through our blogs and articles which discuss various topics in relation to assault and domestic/violence assault crimes:

How Am I Being Charged With Domestic Violence / Assault When I Acted In Self-Defense?

Can I be charged with a crime if only one person says I did it and there are no other witnesses or evidence (commonly called “he said/she said” cases)?

Imposition of No Contact Orders for Persons Charged with Michigan Criminal Offenses; Assault, Stalking, Domestic Violence

When a Misdemeanor Assault or Domestic Violence Case Escalates to a Felony

Part 1: Domestic Violence Cases in Macomb and Oakland County, Michigan, Investigation, Arrest and Statements by the Accused

Part 2: Domestic Violence Cases in Macomb and Oakland County, No-Contact Orders, Dismissals for First Offenders

Part 3: Domestic Violence Cases in Macomb and Oakland County; Court Process, Victim Failing to Appear in Court, Victim Providing a Contrary Statement

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When a person commits a crime that involves a victim, a number of laws apply that provide the victim with several rights. Some of these rights allow for the victim to collect restitution, speak at sentencing, be afforded a victim’s rights advocate and confer with the prosecutor. In every respect, these are important rights.

Article 1, Section 24 of Michigan’s Constitution
provides as follows:

Crime victims, as defined by law, shall have the following rights, as provided by law:

  • The right to be treated with fairness and respect for their dignity and privacy throughout the criminal justice process.
  • The right to timely disposition of the case following arrest of the accused.
  • The right to be reasonably protected from the accused throughout the criminal justice process.
  • The right to notification of court proceedings.
  • The right to attend trial and all other court proceedings the accused has the right to attend.
  • The right to confer with the prosecution.
  • The right to make a statement to the court at sentencing.
  • The right to restitution.
  • The right to information about the conviction, sentence, imprisonment, and release of the accused.

Michigan’s Constitution gives powerful rights to a crime victim which can mean that a victim can block a plea agreement or have an impact on sentencing. Courts and prosecutors must abide by a rigid set of rules to include the victim in the criminal process and make an inquiry regarding the victim’s losses or injuries. Some courts utilize a checklist to insure that the victim’s rights are protected. In many cases, the victim can actually be sympathetic to the defense. It always helps when the victim does not obstruct the plea bargaining process and does not ask for jail or other unjustified harsh punishment at the time of sentencing.

However, as a criminal defense lawyer, it is far better to represent someone when a victim is not involved or when a victim does not take a position against the defense with respect to the plea bargain or sentence. The worse case scenario occurs when an alleged victim acts overly victimized, exaggerates a loss, requests inflated or spurious restitution or actually savors the drama of criminal court proceedings. In situations such as these, most judges know when a victim is seeking punishment that is cruel or is just taking advantage of the system. Unfortunately, some judges will give the victim too much latitude which makes the entire criminal process difficult for criminal defense lawyers.

Restitution
a. is a good idea b. is abused by victims c. involves a flawed process d. all of the above

Another vital tool that has been afforded to victims is the ability to request restitution at the time of sentencing and thereafter. A restitution hearing can be held to verify or contest a restitution claim. A person, business entity or third party (such as an insurance company), that suffers a loss because of the defendant’s conduct can request restitution. Michigan’s restitution statute and laws give the victim and the judge numerous powers including:

  • When sentencing a defendant, the court shall order defendant to make full restitution to any victim of defendant’s course of conduct.
  • Court must not consider defendant’s ability to pay.
  • Restitution may include any individual or entity that suffers direct physical or financial harm as a result of an offense. Insurance company as a victim.
  • Restitution may include any victims of the defendant’s course of conduct even though the losses are not attributable to the factual foundation of the charge that resulted in the conviction.
  • A co-defendant or co-conspirator may be held jointly held liable for the entire amount of the loss.
  • A defendant who plead guilty to home invasion was properly ordered to pay restitution for damage caused by accomplices who caused a fire after defendant left the premises.
  • If conduct causes serious bodily injury, serious impairment of bodily function or death, court may order triple restitution.
  • Victim’s loss may include prejudgment interest.

Restitution is commonly addressed at the time of sentencing. In my opinion, it is a flawed process because at the same time that the defendant is asking for a lenient sentence; the victim is asking for compensation. Whenever money is involved, most defendants that have the wherewithal will pay when they feel that it will appease a victim or save them from jail or prison. This usually means that the defendant usually consents to restitution which is rarely questioned by the prosecutor or judge assigned to the case. I have seen more than my fair share of abusive restitution claims where a victim is allowed to profit at the expense of a defendant who is facing incarceration.

Case 1: The victim was seeking restitution in a case where the defendant was charged with home invasion. The victim had old photographs of jewelry and recent appraisals based upon the old photographs to seek and obtain substantial restitution. She did not have any receipts or any recent documentation or photographs. In some of the photographs, she was wearing the jewelry but in others, she was not. There was no way to know whether she really ever owned the jewelry or the real value.

Case 2: A business entity claimed several thousands of dollars in accounting costs to investigate a defendant charged with embezzlement. There was no way to prove or disprove whether the accounting costs were actually necessary or just linked to this case.

Case 3: Co-defendants were convicted of taking equipment from a facility. The equipment was recovered. Although the equipment was old and in need of repair, the victim claimed and received in excess of $20,000.00 restitution for alleged damage to the equipment.

Civil Lawsuit or Criminal Restitution Hearing?

In my opinion, it was a far better system when a victim of a crime was required to file a civil lawsuit for damages arising out of a criminal offense. In civil lawsuits, the aspect of criminal punishment does not exist. A civil lawsuit is not based upon emotion, sympathy or the “hang em high” mentality that exists in criminal cases. A jury trial is permitted in civil proceedings and there is a process to establish or refute damages which includes depositions, discovery, expert witnesses and motion practice to refine the case. The prosecutor and victim rights advocate do not exist in the civil process and the judge does not have to placate a victim based upon the politics or media exposure which is more prevalent in criminal cases. The civil lawsuit, or civil process, is designed to require a party to prove a loss by verifiable evidence. Whereas, in the criminal arena judges and prosecutors may yield to the “get tough on crime” philosophy which may have an influence on decisions regarding restitution.

The criminal process is not designed to deal with restitution or damages claims efficiently and fairly. When a restitution claim is asserted, there is nobody in the criminal process that is likely to give credence to the defendant or cast aspersion on a victim.
Prosecutors and judges may raise their eyebrows when faced with incredulous restitution claims but neither will rarely put a victim’s integrity in dispute. The odds are in favor of the victim since it is assumed the accused in the criminal process is lying and the victim must be telling the truth.

When confronted with restitution claims, we make recommendations to our clients on a case by case basis. There may be situations when we recommend settlement of an allegedly inflated restitution claim. Our recommendation may be based upon the economics or legal fees associated with a long drawn out restitution hearing. In addition, the payment of restitution, or making a victim whole, is often viewed favorably by the prosecutor and judge.

fabian dismissal

Above image is an actual court disposition resulting in dismissal of multiple offenses.

This blog is based upon our experience representing clients that are charged with multiple criminal offenses. Multiple criminal offenses may be brought even when there is a single intent involved. When confronted with multiple criminal charges, our objective becomes one of untangling the mess, isolating what really occurred and attempting to get charges reduced or dropped.

In certain situations, a person may obtain multiple criminal charges arising out a single incident, single intent or criminal episode. An evening of alcohol consumption with friends, or the escalation of a domestic altercation, sometimes ends poorly. In other cases, multiple criminal charges may be the result of an over-zealous prosecutor or police agency seeking to hit an offender with every offense in the Michigan Penal Code. In our experience, multiple criminal charges arising out of a single incident is usually “over-kill” on the part of the prosecutor or cops and seldom results in multiple convictions when approached with a sound legal strategy.

Over Zealous Prosecution, Over-Charging

As I mentioned, multiple criminal charges may occur when a prosecutor is over zealous. Multiple charges give the prosecutor an unfair edge in the plea bargaining and jury process.

Plea bargaining: A prosecutor has leverage during the plea bargain stage of a criminal case when a defendant has multiple criminal charges arising out of the same conduct. In a multiple charge scenario, a defendant may not want to risk fighting multiple criminal charges at trial. The prosecutor may offer to dismiss some of the charges upon a defendant pleading guilty to 1 or 2 of the offenses in a multi-charged complaint.

Jury process: In addition, prosecutors have an advantage with juries in cases where multiple charges are pursued. The advantage is a psychological one where the jury feels that a defendant facing multiple criminal charges must have done something wrong to deserve it. Also, jurors may feel that they can satisfy both the prosecutor and defense by spitting the verdict and finding a defendant guilty of some of the charges while dismissing others.

Examples of Cases Involving Multiple Criminal Charges

Example #1: Our firm represented a spouse charged with domestic violence, preventing use of telecommunications equipment, disorderly conduct and resisting/obstructing the police. Our client tried to leave the residence because of a heated argument with his wife. His wife blocked the doorway and he pushed her aside to leave the residence. The police report said that our client attempted to grab the phone from his wife when she first tried to call the police during the argument. He then left the residence but returned shortly thereafter while the police were present. The report stated that our client was loud and uncooperative when he tried to give his side of the story to the police. Our client did not have any prior record and was hardly someone we would qualify as a trouble maker or violent person.

The above scenario (Example #1) is not uncommon. Improperly handled, the defendant may have wound up being convicted of several offenses (domestic violence, tampering with telecommunications equipment, disorderly conduct and resisting/obstructing police). That was not the case. Our job was to separate the wheat from the chaff. In other words, we were able to negotiate dismissal of several offenses (misdemeanors and felonies) which did not pertain to the underlying purpose of police intervention. The prosecutor and police both agreed that the person did not deserve multiple convictions. His wife was also helpful because she admitted that she was complicit and contributed to the physical contact when she obstructed her husband’s mobility as he attempted to vacate the residence. The final outcome was a plea to the offense of disorderly conduct which was taken under advisement pursuant to MCL 771.1 by the court and dismissed after one (1) year of good behavior.

Example #2: Our client was pulled over for suspicion of drunk driving. He failed the field sobriety tests and tested positive for alcohol on the preliminary breath test (PBT). He was arrested. The police did an inventory of the vehicle and found a small quantity of marijuana and a “one-hitter” pipe. He had a suspended license because of an unpaid traffic ticket and did not have proof of insurance although the vehicle was insured. His charges consisted of drunk driving (OWI, .08% or greater), possession of marijuana, possession of narcotics paraphernalia, driving while license suspended and no proof of insurance.

In this scenario (Example #2), we were able to have the no proof of insurance offense dropped because our client produced valid insurance at the pretrial conference. The driving while license suspended offense was also dropped because our client provided proof that he paid the ticket which resulted in his license suspension. Our client agreed to plea to a reduced charge of “impaired driving” and the offense of possession of marijuana was taken under advisement pursuant to MCL 333.7411 which was dismissed upon good conduct after 1 year. The offense of possession of narcotics paraphernalia was also dropped at the pretrial conference.

We hope that this blog is useful to anyone facing multiple criminal charges. As I stated, a sound legal strategy and the ability to negotiate effectively can often lead to favorable results with minimal consequences. Knowing how to deal with the prosecutorial arm of government can mean getting a huge break without serious criminal convictions.

Links to other popular blog pages:

Pretrial conference

Domestic violence, Part 1

Domestic violence, Part 2

Domestic violence, Part 3

Should you cooperate (snitch) with the police?

Shameless-Season-4-Episode-6-Fiona-in-jail-550x330

A recent storyline on the Shotime series ‘Shameless‘ has focused on the show’s protagonist being charged with a crime for the first time. Fiona Gallagher, Shameless’ lead played brilliantly by Emmy Rossum, is charged with narcotic possession and child endangerment when a child in her care accidentally ingests drugs at her home. In my opinion, the portrayal of the indignities she suffers and choices she is faced with are for the most part realistic depictions of a first time offender’s interaction with the criminal justice system. I think this storyline is laudable, because it is an aspect of the law often overlooked in popular culture (TV shows and movies tend to focus on corporate legal proceedings and capital crimes it seems).

When Fiona is arrested, she is brought to jail awaiting her arraignment. Shameless unflinchingly outlines the discomfort and invasion of privacy one endures in jail. Something I hear almost every day in my office is ‘One night was enough, I will never go back.’ The arraignment is shown next, accurately so as well. Fiona is unable to retain counsel so her bond ends up being set high. Bond, for those who don’t know is an insurance policy that you will return to court for future dates. I’ve found that people who retain counsel have a better shot at getting a reasonable bond, even where they are charged with a felony.

Fiona then struggles with her public defender. While the public defender seems very well versed in nuances of Fiona’s charge, she’s spread thin. This can certainly happen in real life. Public defenders can get very large caseloads that they have to stay competent on and split their time between. There are a lot of capable public defenders, much like Fiona’s, but access to them can be a real issue as shown in Shameless.

Subsequently, Fiona struggles with whether or not to take a plea deal. She thinks that the State has her dead-to-rights on the possession issue but feels that she didn’t do anything to endanger the child in her home. Nonetheless, she is offered a plea disposition that likely takes jail off the table. A big part of criminal defense is negotiating pleas and advising clients on their merits. In Shameless, Fiona probably had a losing trial. She was guilty, there were a lot of witnesses, and she didn’t have a viable defense. Given that jail was certainly on the table, a deal was at least worth a conversation. Clients and lawyers have to weigh the probability of success at trial versus the sure thing before them. Fiona hems and haws over this, and ultimately cops a deal admitting guilt before the judge.

Fiona is sentenced to 3 years probation with a conditional house arrest tether. For a felony this seems more or less on point for what I see in the court system. For a felony conviction it’s normal, in Michigan, to receive 12 to 36 months probation. Her reporting, three times a month, struck me as steep but that may be the standard in Illinois. Personally, we see Fiona struggling with her loss of freedom and diminished role in her family. Probation serves different objectives. It is designed both to punish and rehabilitate. Probationers often become dejected over the enormous infringement of freedom they endure. Nonetheless, courts almost universally view probation as a favor being granted in lieu of straight jail time.

Overall, I commend Shameless for its largely accurate depiction of this difficult and oft-neglected topic in pop culture. Fiona’s experience as a first time offender is something we deal with regularly in our practice. We attempt to identify and sympathize with the frustration, fear, uncertainty, and anger our clients experience when they find themselves in a similar position.

youthful offender
In Michigan, the Holmes Youthful Trainee Act, commonly known as HYTA, is covered by statute, MCL 762.11. The essence of HYTA is that it allows for dismissal of eligible criminal offenses committed by youthful offenders. This statute applies only to offenders that are age 17 to 20 years old. HYTA is not available for juvenile offenders; those under age 17. In Michigan, a person is considered an adult for their crimes at age 17 and beyond. The dismissal of a criminal offense pursuant to HYTA is tantamount to an expungement. The benefit of getting HYTA means that the offender avoids the stigma and label of a criminal conviction. Subject to some exceptions, HYTA is available for most felonies and misdemeanors. A person applying for a job or filling out an employment application would be able to exclude an offense dismissed pursuant to compliance with HYTA.

Key aspects of a HYTA case: Conviction is not entered and records are sealed!

A person who seeks HYTA is required to formally plead guilty to the offense or offenses which are being considered for a HYTA plea. However, once the court accepts someone on HYTA status, the court does not enter a judgment of conviction and the court and Michigan State Police records become closed to the public view. The records remain sealed unless the person violates his or her HYTA status.

A person who is awarded HYTA status may be incarcerated. This is usually not the case unless there are compelling or aggravating circumstances. HYTA usually entails a term of probation with whatever conditions that the court deems appropriate for the youthful offender. If the offender violates any of the terms of probation, the guilty plea may be abstracted as a conviction. Should this occur, the conviction becomes a public record and the offender faces punishment and possible incarceration up to the maximum period of time allowed for the particular offense. However, if the person complies with the terms of probation, the case is dismissed at the end of probation and the record remains sealed. A sealed record means that it is not accessible to public access or by any member of the public who makes inquiry at the court or to a law enforcement agency.

How does someone get HYTA status?

HYTA status is not guaranteed and may be accepted or rejected in the judge’s discretion. HYTA is obtained by an attorney negotiating this favorable disposition with the prosecutor and petitioning the court to accept the same. Since HYTA may be rejected by the court, it is vital that an attorney be retained in order to gain the best advantage in subsequent criminal proceedings.

HYTA status may also mean the imposition of probation, random testing for alcohol and drugs, counseling and payment of restitution. Restitution may be ordered in cases involving damage to property (home invasion, malicious destruction of property) or economic crimes (larceny).

HYTA is not available for some crimes and traffic offenses

HYTA is available for most criminal offenses including felonies and misdemeanors. However, the HYTA statute lists various offenses which are not eligible for HYTA status as follows:

  • Traffic offenses, including Operating While Intoxicated
  • An offense which carries a maximum penalty of life in prison
  • Major controlled substance offenses
  • Most criminal sexual conduct crimes

Creative legal solutions to get HYTA for ineligible crimes and offenders

Ineligible offenses: Sometimes, we are called upon to defend a client that is charged with an offense that is not eligible for HYTA. In such a case, we may attempt to seek a plea bargain to have the prohibited HYTA offense amended to an offense which is compatible with a HYTA disposition.

Offenders over age 20: When an offender is over age 20, HYTA is not applicable. In rare situations, our attorneys have been able to have the occurrence date of the crime amended to an earlier date when the offender’s age would be under age 21.

HYTA Facts

  • There is no limit on the number of cases which may be placed on HYTA status.
  • An offender under age 17 or over age 20 is not eligible for HYTA.
  • HYTA is not guaranteed and may be rejected by the judge.
  • HYTA is not available for traffic violations or drunk driving.
  • HYTA may include jail, probation, counseling and restitution to any victims.

Other Michigan provisions which are similar to HYTA

There are other criminal cases which can be resolved by laws which are similar to HYTA. They are as follows:

The above provisions may only be utilized once in a person’s lifetime. On the other hand, HYTA can be applied on an unlimited basis provided the offense and the offender are eligible and the judge accepts HYTA as part of the disposition. However, the likliehood of getting HYTA when someone has a prior record is remote.

In theory, with the right lawyer, a person can have several offenses dismissed in his or her lifetime by knowing how to petition the court for application of these alternative sentencing provisions of law.

pee in public.jpeg

In Michigan, the crime of public urination is not included in the Michigan Compiled Laws. However, many towns, villages and cities have ordinances against such behavior and offenders may be arrested for violating the ordinances. For example, Delta Township (west of the City of Lansing) has such an ordinance, which makes urinating in public illegal. The maximum penalty for this misdemeanor is up to 90 days in jail.

Because Michigan doesn’t have a specific crime related to urinating in public, an individual may be charged pursuant to state law under the Indecent Exposure statute, under MCL 750.335a or the Disorderly Conduct statute. This crime has negative connotations which are associated with deviancy or sexual misconduct. A conviction on a person’s record leads to undeserved misunderstandings and possibly labels the person as a weirdo or trouble maker.

Unfortunately, many persons who engage in the conduct of urinating in public are those who leave taverns or bars after consuming alcohol. We see a greater number of persons charged with this crime in places like Royal Oak, St. Clair Shores or downtown Utica where many bars are located within a confined geographical area. The police tend to be on the lookout for misconduct such as urinating in public, disorderly conduct and public intoxication in areas where bars are close to residential areas as well.

Medical Emergency

In some cases, individuals may be suffering from a medical emergency, and that is why they urinate outside of their home. This is especially true for older people, or those with prostate gland problems, who risk serious health complications. One such example is a bladder stone which forms when the bladder is not properly emptied.

The Mayo Clinic provides information regarding the adverse health effects of “holding it.”

Embarrassment and Stigma Associated with the Crime Indecent Exposure

Our goal, as Macomb County criminal defense lawyers, is to avoid a conviction for any crime which can cause lifelong embarrassment and misconceptions. Indecent exposure or urinating in public (misdemeanor crimes) certainly qualify as crimes which nobody wants on their record. Whenever appropriate, we may argue “medical emergency” for a person who gets caught urinating in public. In some jurisdictions, we have been able to have the offense amended to a harmless civil infraction such as “impeding traffic”. Other dispositions allow for dismissal of the offense after a period of compliance when we can convince the court to grant a delayed sentence pursuant to MCL 771.1 or HYTA for offenders who are age 17 but under age 21.

Written by: Samuel Bennett,
Abdo Law, Central Office Intern

sam bennett.pngSamuel is a third year law student at Thomas M Cooley Law School who has been an office intern with the Abdo Law Firm for three years. Currently, he is working as a Student Public Defender in Washtenaw County, where he represents clients charged with felonies. Sam was formerly with the Wayne County Prosecutor’s Office as an Intern in the Child Abuse Unit, where he aided the Lead Prosecutor with a plethora of cases. As a student, Samuel received the Certificate of Merit for Trial Skills and served as a Teacher’s Assistant for Trial Skills. He will graduate in May 2014, and will be sitting the July 2014 Bar Exam.

WHISKEY RX.jpg

From 1920 until 1933, the sale, production and use of alcoholic beverages was illegal in the United States. This was known as Prohibition. What I didn’t know was that a doctor could prescribe alcohol for medicinal purposes pursuant to the National Prohibition Act during this era. The image which is located at the top of this article was obtained from an actual scanned prescription which was issued on December 20, 1928 to a resident of Washington, D.C. The prescription was for 1 pint of whiskey. The prescription contains the pre-printed words, “Prescription Form for Medicinal Liquor.” Perhaps the person who obtained the medicinal liquor had a cough due to cold or was just stocking up before New Years!

Prescriptions for alcohol were actually quite common during prohibition. The substance whiskey was also prescribed under the label of “spiritus frumenti” as the image below illustrates.
Thumbnail image for RX for Booze.jpg

Does this resemble the course of action which we are now seeing regarding the medicinal use of marijuana?

JUSTICE.gif

Abdo Law Firm prides itself on empathy, understanding, personal service, and striving for the optimal resolution of all legal matters that we take on. We are entering our fourth year with Matthew as a partner, and are continuing to grow. We always looking to hone our skills and engage challenging issues. This year we have had hundreds of satisfied clients, each case is very important to our Firm. The ‘Notable Cases” series is intended to share with readers cases that had complex legal and factual questions. ‘Winning’ in law is not always black-and-white concept. In some cases, a win is helping a guilty client reach a best-case-scenario disposition of their case (reductions, keeping charges off their record, and reducing jail/minimizing probationary terms). In other instances, a win is a dismissal or NG verdict. With every new case, we sit with our clients and determine exactly how we can win and the best means of reaching that objective. Read below to learn more about some our Firm’s more demanding cases and the tactics we employed defending our clients.

Sterling Heights: Moving Violation Causing Death
In the summer of 2012, we were approached by a client who was being charged with Moving Violation Causing Death. The client was in a situation where a criminal misdemeanor would have cost her job, and moreover harsh severe license sanctions. The facts were as follows. The client was backing from her driveway when her car made contact with a bicyclist, the bicyclist died as a result. Nonetheless, our client maintained she was backing up slowly and never saw the bicyclist until she heard contact. There were no third-party eye witnesses and all of the evidence corroborated the client’s rendition of the facts. There was no exterior damage done to the car.

Pretrial negotiations went on for almost a year. The prosecution, an office we work with regularly, could not reduce the charge. The client had no choice but to take the case to jury trial. Prior to the trial we engaged prosecutor’s office to streamline the case and spare the jury, and more importantly the victims, any graphic evidence. The Judge, Judge Weigand, was very amiable to letting both sides tell their story and giving all parties involved a fair trial. Though they both have litigation experience in their own right, this trial was the first that Cy and Matt, father and son, had done together. Matt focused on jury selection and arguments. Cy used his 30-plus years of veteran defense experience to question the defendant. In his closing, Matt stated “To find our client guilty is to find that accidents, true accidents, cannot happen.”

The prosecution put on a very thorough case, bringing in their own expert and arduously cross-examining ours. After the prosecution and defense gave their closing arguments, the jury was left to deliberate. Deliberations went into the next morning. When they emerged from chambers, the foreman read the verdict, “Not Guilty.” The victim’s family hugged the defendant. Abdo Law was given a must-win situation and delivered a not guilty verdict for our client. One year and hundreds of man-hours later, the just result was achieved.

Armada: False Report or Threat of Domestic Terrorism

In the spring of this year, we were approached by a family who wanted us to represent their son who was being charged with False Report or Threat of Domestic Terrorism, a 20 year felony. The allegations were that the client made threatening statements to coworkers over social media amounting to terrorism. The charge was taken very seriously by the court and prosecution. Initially, the defendant was held on a half-million dollar bond.

From the onset, Abdo Law had a tall hill to climb. We were faced with a staggering bond and moreover media scrutiny. On top of fighting the case in the court, we had to tastefully represent the client and his family to the media, who were contacting our office regularly while the case was pending. As soon as we were hired, Matt visited the client in the Macomb County Jail. He struck Abdo Law as a very decent, intelligent, and goal driven young man. We always maintained to the court that these allegations just did not comport with our client, his upbringing, or his background.

Early on, we had a big victory getting the bond reduced pursuant to a motion promptly filed by our Firm. When the case was bound over to the Macomb County Circuit the bond was lowered to $100,000.00 (10%). The client was finally released after having spent the previous weeks incarcerated. The next phase was a thorough and protracted pretrial conference. After multiple motions and conferences on the matter, nothing favorable was being offered.

At this point, it is always the client’s choice if he or she wishes to pursue a trial. The client here did not feel it was a good idea to let this play out before a jury. He opted to plea. The Guidelines in his case were unforgiving; he was potentially looking at a minimum sentence resulting in lengthy incarceration. However, Abdo Law filed a detailed sentence memorandum to the court. The memo outlined how the court had the legal authority to sentence our client without imposing incarceration. Pursuant to arguments at the sentence hearing, our client was given probation and moreover HYTA status, meaning that the conviction will not show up on his record.

Matt visited with the client after the case and was able to meet many members of his family. He is a good person with a bright future. He has a big support group and everyone was glad that the client didn’t have to spend his formative years in jail, and moreover have a charge of terrorism on his record. It would have ruined this young man’s life. Our client made a mistake, and he owned up to it. Pursuant to our advocacy and the client following our advice to a T, our client was able to avoid jail time and has the opportunity to keep a 20 year felony off his record.

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Our law firm is seeing a wave of cases which involve the criminal offense “possession of child pornography” in both the State of Michigan and Federal Court system. The increase in child pornography arrests is related to the Federal child porn crackdown which involves several law enforcement agencies.

The Macomb Area Computer Enforcement (M.A.C.E.) is a unit of the Macomb County Sheriff Department which is dedicated to the investigation of computer crimes. This unit also cooperates with Federal authorities in the investigation and prosecution of child pornography cases.

How law enforcement operates to catch child porn offenders

Federal agents and local law enforcement officers track individuals who may possess, distribute, produce or promote child pornography based upon internet histories, searches or activity on file sharing sites. Peer to peer, or P2P, programs allow the agents to see computer content and download inappropriate material. The culmination of an investigation involves the issuance of a search warrant followed by seizure of any computers, hard drives, thumb drives, images, smartphones or any other evidence that will support an indictment or state criminal charge involving the illegal possession, distribution, promotion or production of child pornography. The suspect may be arrested and detained or released pending further investigation and technical computer forensic analysis.

What happens after the police execute a search warrant

After execution of a search warrant, the agents will attempt to obtain a detailed confession and get the alleged perpetrator to provide specific details of internet activity and the location of images on computers or hard drives. The subject may also be arrested and detained in jail whenever the police find any evidence indicating communications with minors or predatory conduct beyond mere possession of child pornography. Whenever a suspect is arrested, the police will need to charge the person within a reasonable time and have the assigned court set bond. In some cases, the suspect is released pending criminal charges. It can take several months for the actual charges or indictment to occur. This is especially true when images are difficult to find or have been deleted or when the computer devices are turned over to technicians for forensic analysis. A suspect later will be formally charged when deleted or encryted child pornography images are recovered.

In a recent case following a search and seizure, the Feds were able to get a warrant compelling a person to disclose his passwords for the purpose of gaining information from encrypted drives. Attorneys argued that this violated the person’s 5th Amendment rights (privilege against self-incrimination). However, the issue has not been addressed by the higher courts. In other cases, the law enforcement agency will use computer technicians to recover deleted images.

Why are some child pornography cases prosecuted under Federal law and others under state laws?

Possession of child porn can be prosecuted under Federal or state laws. Even a single photo or image may be sufficient to press charges. The Feds may take control of a case involving child pornography or turn it over to the local authorities (state) for prosecution. When a case involves several hundred images, involves production or distribution of child pornography, our experience is that the Feds will retain the case and prosecution will occur in the Federal District Court. However, the Feds may turn a case over to local authorities for prosecution when there are minimal images involved.

Offenders may be prosecuted in both federal and state courts!

A prosecution at the state level does not preclude another prosecution at the federal level pursuant to the doctrine of dual sovereignty. The Double Jeopardy Clause of the 5th Amendment does not preclude both state and federal prosecutions under the doctrine of dual sovereignty. The dual sovereignty doctrine has been upheld by the USSC in U.S. v. Wheeler, 435 U.S. 313 (1978) and numerous federal appellate courts.

How does the government prove that a person knowingly possessed child pornography?

A criminal defense lawyer will assert every possible factor in defending child pornography cases including: lack of control, whether the person was seeking out (searching) for the images, knowledge, and whether the images were deleted. The following is a brief explanation of these factors which may formulate a defense or be utilized by the prosecutor:

1. Control of an image: Various factors are relevant which the court can consider regarding “control” of an image, including whether the image was saved, copied , printed, forwarded or deleted.

2. Seeking the image(s): Seeking the image is the process that one undertakes to find or obtain child pornography. Clues of a person’s actions to seek child pornography can include visits to child pornography websites, subscription to child pornography websites, or use of search words related to child pornography.

3. Knowledge: Any statement made by a person under investigation for child pornography can be used to prove knowledge. In an actual case, the court held that an inference of knowledge can be drawn when someone said, “I don’t have too much” in response to an investigator’s question about the presence of child pornography images on his computer.

4. Deletion: A defense attorney will invariably advocate any actions by a defendant who has deleted child pornographic images. This is a strong factor which may be argued especially when the images are not manually saved to a special file, there are minimal images or when a person has limited or unspecific search activity pertaining to pornography.

Our source and in depth analysis of these factors can be found in a Florida Law Review article, “Possession of Child Pornography: Should You be Convicted When the Computer Cache Does the Saving for You?”

Child pornography crackdown leads to numerous arrests and convictions

There has been a flurry of arrest activity pertaining to child pornography crimes which verifies the aggressive efforts by Federal and State of Michigan law enforcement agencies . Links to some recent these cases can be found here:

Shelby Township man charged with child porn

Chesterfield Township man charged with child porn possession

48 Year Old Woolwich Township man indicted in federal child porn case (faces 15 to 30 years and fine of $250,000.00 per count)

Port Orange man pleads to federal child porn charges, faces up to 20 years in federal prison

14 Years in Federal prison for man convicted of possessing 56 child porn images
Pleasant Hill man sentenced to 15 years in prison for distributing child porn

Avoid making any statements to the police or agents, even a denial, and retain an attorney as soon as possible!

Anyone who is the subject of a criminal investigation or has been arrested involving child pornography should remain silent. An excellent resource on the topic of one’s right to remain silent can be found on YouTube video, “Don’t Talk to the Police“. This video has has had approximately 3,000,000 views and has been prepared by sources that our firm deems reliable. As I mentioned in this article, any statements that are made can be used to prove knowledge. Alternatively, if a person makes statements of denial and is later found to be less than forthright, the person may face charges for making a false police report of lying to a Federal agent. Willfully making false statements or concealing information, in “any matter within the jurisdiction” of the federal government of the United States, even by mere denial, can carry 5 years in prison. When a person has made incriminating statements or a confession, there may be grounds to have the statements suppressed under certain circumstances.

In addition to remaining silent, a person under investigation or arrest should immediately consult with an attorney for further attention. An attorney will make recommendations and do damage control if a client has made incriminating statements to the police or Federal agents. Proactive case management and recommendations may include engaging the services of a counselor and obtaining medical reports if a person is under doctor’s care for a past or present mental illness. Whenever appropriate, an independent team of computer forensic technicians may be employed as part of the defense team.

Resources:

Federal Child Pornography Law

State of Michigan, Child Pornography Law: MCL 750.145c

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Cooperation, Undercover Drug Deals, Snitching: Using the little fish to get the big fish.

We have found that our clients charged with drug crimes experience a state of insecurity and despair when it comes to doing undercover work or cooperating with the police. This is something that is outside of the comfort zone for nearly everyone, especially the family members of our clients faced with this dilemma.

The classic predicament: Should a person engage in undercover drug deals or hire a lawyer for advice and face the criminal charges in the court system?
Whether someone charged with a drug crime should cooperate with the police to get a favorable deal is a delicate and controversial topic. It is necessary to obtain legal advice should anyone be charged with a drug crime and asked to cooperate. Consultation with a criminal defense attorney is crucial – time is of the essence.

We have successfully defended clients charged with drug crimes since our firm’s inception without taking the precarious route of “cooperation” with the police. This is especially true for clients who do not have a prior criminal record, and those that are caught with a small quantity of drugs or marijuana.

Some Facts about Cooperation with the Police

  • There is no guarantee that you will avoid criminal charges when you cooperate with the police!
  • The police will not be able to guarantee your safety if you engage in undercover drug deals!
  • Cooperation with the police ends when the police say it ends!
  • Cooperation may mean engaging in drug deals that not only involve much higher quantities than you had in your possession, but may also include buying other types of drugs!

What is the Purpose of Cooperation?

The need for inside information is a dynamic law enforcement tool in the war on drugs. A minor drug offender who is used by the police to get the ‘bigger fish’ is justified on the grounds that drugs are a dirty business. This issue necessitates the need for undercover informants. The end result is another drug bust which nets the police additional sources to gain information. Should the drug bust bear fruit, others will be implicated, assets forfeited and prosecutions will occur.

Retain a Lawyer to Protect Your Rights and Discuss Your Options

When someone is arrested for a drug crime, the arresting agency will attempt to get a suspect to cooperate, or snitch. This is usually followed an offer of possible preferential treatment in the criminal justice system. Unfortunately, I hear from my clients far too often that they are told by the police that they do not need a lawyer in this scenario. This is absurd and dangerous. Whenever someone forgoes his or her 6th Amendment Constitutional right to a lawyer, he or she can wind up doing risky undercover drug deals without ever knowing all of the possible options. In addition, we found that police dictate the level of cooperation that is required. In other words, cooperation is not over until the police say it is over. This may mean that someone who is not faced with serious drug charges is coerced, or persuaded, to participate in risky undercover drug transactions without ever getting sound legal advice.

Here is what the police do not tell you:

  • Pursuant to the 6th Amendment of the US Constitutional, you have a right to an attorney.
  • Pursuant to the 5th Amendment of the US Constitution, you have a right to remain silent.
  • Your attorney can petition for deals to have your case dismissed pursuant to MCL 333.7411 or HYTA (Youthful Trainee Act), even if you do not cooperate with the police.
  • You may have defenses to the drug charges. For example, illegal searches and lack of actual possession.
  • You may not be facing jail.

We have made references to an excellent You Tube video, “Don’t Talk to the Police”, in other internet posts. We found the video to be extremely informative, as well as objective.

Cooperation in the Federal Court System

Federal criminal prosecutions are handled in a much more formal manner. In the Federal court system, the issue of cooperation is much different than what we see at the state court level. In the Federal system, special formalities and agreements exist. They involve both the District Attorney and at least one law enforcement agency; usually the Federal Bureau of Investigation (FBI) or the Drug Enforcement Agency (DEA). In the Federal arena, cooperation is prevalent and can be a factor to avoid a mandatory minimum sentence. The following language is contained within a Plea and Cooperation Agreement:

“If the defendant commits any crimes or if any of the defendant’s statements or testimony prove to be knowingly false, misleading, or materially incomplete, or if the defendant otherwise violates this Plea and Cooperation Agreement in any way, the government will no longer be bound by its representations to the defendant concerning the limits on criminal prosecution and sentencing as set forth herein.”

Don’t do it alone. Our attorneys can help you determine the best course of action when it comes to dealing with your drug charges in the court system or the route of cooperating with the government. At times, cooperation with law enforcement may be a viable option. In the Federal system, it is routinely utilized in the plea bargaining and sentencing process. However, cooperation needs to be explored for each case on an individual basis by an experienced criminal defense attorney. Keep in mind that it is the client makes the ultimate decision whether to engage in cooperation or undercover operations with law enforcement officers. An attorney will look at the case from every angle, including the prospect of cooperation and whether drug charges can be fought and won. In addition, various Michigan statutes enable qualified offenders to obtain plea agreements for dismissals.