Timing Counts in Criminal Defense

Posted on by
Reply

Criminal defendants in the State of Michigan have several rights having to do with the timely execution of the criminal justice system.  In this post I’m just going to cover a couple of them and show how they have been applied in some Michigan cases.

Let’s take, for example, the requirement that arrests should not be delayed just to gain a tactical advantage for the prosecution if that unfairly prejudices a defendant.  Believe it or not, that is a legal basis upon which to challenge criminal charges.  Mere delay between when an offense took place and when you are arrested is not in itself a denial of due process rights.  But if you can prove that the delay in arrest prejudices you and was done intentionally to gain a tactical advantage, you put the pressure on the prosecution to prove that the reason for the delay justifies the prejudice.  Granted, you have to prove that the delay actually and substantially affected your ability to defend against the charges such that the outcome is likely to be affected.  That might require something like waiting for witnesses who would exculpate you to die, or waiting for evidence that is temporary and not capable of being preserved to waste away.

Another requirement that sometimes comes into play is the 180 day rule.  This rule comes from the Michigan Court Rules for Criminal Procedure which says that once the prosecution has notice of a defendant’s presence in a state prison, the prosecutor has 180 days to start the formal criminal process against that defendant.  If it isn’t accomplished within that time frame, courts in Michigan are instructed by the Court Rule to dismiss the charges that have gone untried.  Unfortunately this rule doesn’t apply for county jails, nor does the 180 day apply to people who are not incarcerated.  But it goes to show that when the prosecution knows that a defendant is in state prison, the requirement for trial within 180 days ensures right to speedy trial.  It gives people a chance to get concurrent sentences so they can have a second chance at life after prison.

Michigan House Judiciary Committee Coming Down On Direct Solicitation For Personal Injury Victims

Posted on by
Reply

All points bulletin … Michigan Representatives in the House are using their valuable time to debate in committee two bills designed to go after the most awful of human scum: ambulance chasers.

School districts are failing and going bankrupt; gas prices are soaring; but thank God the Michigan Legislature is busy protecting us from ambulance chasers and tow companies.

House Bills 4545 and 4771 are both addressed at these scourges of society (note sarcasm – please) and will be hotly debated by our Legislators this week.  Bill 4545 makes it illegal to travel to the scene of a motor vehicle accident and solicit business for a wrecker, recovery, or towing service.  Bill 4771 makes it illegal to contact anyone who has sustained a personal injury within 30 days from the event that caused the personal injury with a direct solicitation (including mail and electronic communication) to provide a service.

Neither bill would impose jail time for breaking these laws, but there would be some hefty fines.  The bill making the direct solicitation illegal would, however, classify the offense as a misdemeanor.

I can understand the frustration with unwanted solicitation.  Having your mailbox or voicemail or email implode is aggravating.  I don’t think a service provider, whether it’s a lawyer, chiropractor, or mechanic, should get a client just because he spends the most on solicitations.  But I do question whether this is the best way to address the concern.

Court of Appeals Reverses Murder Conviction, Says Defendant Deserved Voluntary Manslaughter Instruction to Jury

Posted on by
Reply

Under Michigan state law, being guilty of a crime means you have done an action that the Michigan Legislature has declared criminal and punishable by incarceration, fine, or both.  The very nature of criminal law means that in order for you to be guilty of a crime, your actions must fit the conduct declared illegal by the Legislature.  That means a large part of criminal defense work involves finding how the facts of the case don’t measure up to what the Legislature has declared criminal.

In legal terms we call that finding the weak element of the crime.  Crimes are made up of elements (things the prosecution must prove in order to convict you of that crime).  If a crime is made up of four elements, all four have to be proven beyond a reasonable doubt, otherwise you are not guilty of that crime!  There may be a lesser offense you are guilty of and sometimes that is useful for plea bargaining.

The Court of Appeals recently demonstrated the importance of this concept in the case People v Mitchell, where Bradford Scott Mitchell’s conviction of second degree murder and carrying a weapon with unlawful intent were reversed by the Court of Appeals.

The tragic events surrounding this case arose out of a $5 debt.  It’s sad but true.  Apparently, Mr. Mitchell was owed $5 by the victim in this case and lots of witnesses testified as to Mr. Mitchell’s consistent harassment of the victim over the debt.  On January 16, 2011, the victim was found dead in his apartment with wounds consistent with being beat by a baseball bat and stabbed four times.  He had a fractured skull and died what could only be described as a horrifying death.

Eventually police interviewed Mr. Mitchell, who actually admitted to being in an altercation with the victim but only after he had been assaulted by the victim first.  Mr. Mitchell was arrested and tried on open murder charges and carrying a weapon with unlawful intent.  The jury convicted him of second degree murder (intent to kill, but no premeditation).  The defense requested that the jury instruct the jury on a voluntary manslaughter charge, which would have required the jury to find that Mr. Mitchell was provoked and acted in self-defense.  The judge refused to give such an instruction to the jury, resulting in the second-degree murder conviction.

In order to prove murder, the prosecution has to prove malice.  If the facts are such that the killing is done out of an act of passion rather than reason, there is no malice and you cannot find a person guilty of murder.  Accordingly, Michigan law requires a judge to instruct a jury on voluntary manslaughter whenever the instruction is supported by a rational view of the evidence.  To prove manslaughter, the prosecution must prove that the defendant killed in the heat of passion, the passion was caused by adequate provocation, and there was not a lapse of time during which a reasonable person could control his passions.

So, if Mr. Mitchell presented enough evidence that a jury could have concluded that the killing was done in the heat of passion because he was provoked and didn’t have enough time to cool down, then the jury should have been given a chance to find him guilty only of voluntary manslaughter.  The Court of Appeals reviewed the trial evidence and believed that Mr. Mitchell had submitted enough evidence for a jury to conclude he acted out of provocation (self-defense) and reversed the conviction, ordering a new trial to include instructions on voluntary manslaughter.  The evidence that showed provocation was that the victim had told other witnesses that he was going to beat Mr. Mitchell up if Mr. Mitchell continued to harass him about the debt.

The jury was able to hear Mr. Mitchell’s statement to the police and see his signed statement.  Both pieces of evidence created a story line that went like this: Mr. Mitchell went to the victim’s house about the debt and was immediately confronted with the victim swinging a baseball bat at him.  Mr. Mitchell was able to get the baseball bat away from the victim, but only after being struck three or four times in the head.  Mr. Mitchell admitted that he then struck the victim three times with the baseball bat.  Police testified that Mr. Mitchell did indeed have signs of being in a physical altercation, which corroborated his story.

Not only that, but it was clear from the evidence that the weapon used, the baseball bat, was always the victim’s and had been kept inside of his home.  Therefore, the charge of carrying a weapon with lawful intent, could not have resulted in a conviction because the element of “goes armed” could not be proven beyond a reasonable doubt.  Because the weapon was already at the place of the crime, Mr. Mitchell did not commit the crime of carrying a weapon with unlawful intent, because he showed up at the victim’s house unarmed.  The facts did not sustain the element of goes armed found in the statute passed by the Legislature.

Blocking You With Cop Car Is a Seizure, But Evidence Found May Still Be Admissible

Posted on by
Reply

The Michigan Court of Appeals recently clarified whether a police officer using his squad car to block someone on a bicycle constitutes a seizure that implicates a person’s rights under the Fourth and Fourteenth Amendments.  The Court definitively said that, yes, an officer positioning his police cruiser in front of a bicyclist constitutes a seizure for purposes of triggering a person’s rights under the Fourth and Fourteenth Amendments.  The Case was People v Rivers, but as we’ll see, just because the stop was considered a seizure didn’t mean that things turned out the way the defendant would have liked.

The Fourth Amendment protects citizens from unreasonable searches and seizures.  The Fourteenth Amendment says that right to be free from unreasonable searches and seizures applies to state governments.  The action a court should take when it believes an unconstitutional searches and seizures have been committed is to bar the admission of any evidence discovered from the illegal search.

The case of Mr. Rivers involved a carjacking with three suspects seen fleeing from a Chevy Impala.  Three officers testified they were investigating a carjacking, were following a car that fit the description of the victim’s car, and saw that car crash into a truck.  Rather than waiting inside the car for medical assistance — like most non-carjackers would likely behave — three men in the car fled from the Impala.  Two of them men were arrested but the third, Mr. Rivers, had gotten away momentarily.

Eventually, a man was seen riding a bicycle with clothing that looked like the third suspect.  He had shoes that looked like the third suspect.  He also had burrs on his clothes that would have attached while running through the woods.  The officer driving the police cruiser noticed these things and decided to speed up and cut off the bicyclist.  The officer testified that the bicyclist was nervous and refused to stop, giving the officer even more grounds to cut him off.

Now the defense wanted to say this was an unreasonable search and seizure of just a man on a bicycle and any evidence (in this case a gun) should be inadmissible from a search of that man.  The prosecution apparently tried to argue 1) that it wasn’t a seizure, and 2) even if it was a seizure it was still reasonable given the facts of the case.

That’s the thing about this case.  Just because someone has been seized doesn’t immediately result in blocking all evidence from coming in.  The Amendments only protect us from unreasonable searches and seizures.  So the Court concluded that 1) Yes, this was definitely a seizure and the police have to show that they acted reasonably or risk the loss of evidence being admissible at trial, but that 2) this seizure was obviously reasonable given the totality of circumstances.

When the officers found a gun on Mr. Rivera as a result of the stop due to all the factors that connected him with the carjacking, it was the result of a lawful search and seizure.  It was lawful because it was reasonable to conclude that Mr. Rivera had engaged in criminal conduct.  With the gun he was charged with felony in possession as well as carrying a concealed weapon.  His sentence was 5 years imprisonment.

Michigan GOP hypervigilant to block paid leave laws that don’t exist

Posted on by
Reply

So the Michigan Senate just passed Senate Bill 173.  SB173 is designed to ban any ordinances passed by municipal governments or county governments, from requiring employers to offer paid leave beyond that which is required by state or federal law.

The only weird thing about this bill is that absolutely no city, township, or county in the state has passed such a requirement. Senator Rebekah Warren, D-Ann Arbor, correctly pointed out that this would infringe on the rights of local governments to create business climates that might actually attract employees (see success in cities like San Francisco).

Man, am I glad I live in a state that is dominated by a Legislature that is that obsessed about protecting corporate rights, that aren’t even being threatened!  

The passage in the Senate puts the focus on the House, where a similar bill awaits passage to protect employers from the crippling danger of laws that are not in existence.

Breathe a sigh of relief!  Thank you Senator Jansen for protecting the rights of businesses from laws that don’t exist!