Why Represent Criminals Part I

Why do attorneys represent criminals?

I think most defense attorneys get asked this once in a while. If someone discovers I recently got a jury to return a not guilty verdict in favor of of my client, I sometimes get the follow up question:

How can you do that? You are getting criminals off.

As those are fair questions, I suppose they warrant a fair response. But first, I need to explain how a criminal proceeding works.

In our system, each person who is charged with a crime is merely accused of a committing a crime. We have all heard of the presumption of innocence. What that means is that the sole purpose of initiating criminal proceedings against a person is to see if the State (or whatever unit of government is handling the prosecution) can produce enough evidence to convice a fact finder (judge or jury) that each element of the charged offense(s), offenses of proved beyond a reasonable doubt. Strictly speaking, whether the person actually committed the crime is not the issue, but rather the sufficiency of the evidence. It is not the burden of the accused to provde innocence, but on the State to prove guilt.

In many instances, an innocence person couldn’t prove his innocence anyway. How do you prove you didn’t steal something from a retail store? Because nobody found it on you? So what, the state can say, you may have thrown it out your car window on the way home. After all, some one says they she saw you take it and the store says they never found the item. If you did steal it, shouldn’t they have more proof than some one claiming to see something. Anyone can claim to see anyone else doing anything. That is why the burden is on those making the accusations.

The State can come at a person with such awesome resources. The average person can’t possibly pay attorneys enough to win a war of attrition with the government. For that reason, our Founding Fathers laid out protections in our Constitution to even the playing field. That is why we are protected from unlawful searches and seizures, the right to not self-incriminate, to confront our accusers, to a trial by a jury of our peers, and the protection from torture and other cruel and unusual punishments that have been historically used to induce confessions.

These protections are available to everyone accused of a crime, whether he is guilty or not. These are particulary important to a person who is in fact innocent or who knows that the State does not have enough evidence or that is obtained what evidence it does have unlawfully. They give a person a fighting chance. Justice is done with the state can prove its case, not when it can get a conviction. Our Founding Fathers, like most well educated people, understand that it is far better for a free society to let the occassional guilty man go free than for a single innocent person be convicted.

Criminal Law Frequently Asked Questions

Here are some frequently asked questions for those facing criminal charges. The answers I am writing are general in nature. Each case is unique.

Will I end up in jail or prison?

For most people, this is the scariest question. The good news is that for most people, the answer is no. If you are facing a misdemeanor or a non violent felony and you don’t have a long criminal record, you likely will not go to jail. However, there is always that risk. Also, because your final sentence is up the judge, don’t trust a cop or prosecutor that tells you to just confess or plea to avoid jail. They don’t get to make that call.

How will a charge or conviction affect me down the road?

There is a separate blog posted that deals with some of the consequences of a criminal conviction. You need to be especially careful with sex crimes, felonies, and misdemeanors involving theft or dishonesty.

Are there options available for juvenille or first time offenders?

Yes, but these vary from county to county and court to court. Generally, a youthful first time offender can get a much better deal than an adult. The law doesn’t do much for a first time offender other than you can’t have prior convictions held against you at sentencing. Also, being convicted more than once for the same crime can sometimes increase the maximum penalty. Examples include drunk driving and retail fraud.

What is a diversionary program and can I qualify?

A diversionary program is a program in which the accused pleads guilty to a lesser charge (or sometimes the original charge) and then, if he or she completes a probationary period, the charge is dismissed and there is no public record of a conviction. These programs are not easy to qualify for. Generally, if you are not a first time offender or over 21, don’t count of these. But there are exceptions.

Can I ever get this of my record?

Michigan allows for the expungement of one crime if 5 years have passed since the conviction. A subsequent conviction of any crime makes one ineligible for expungement. There are exceptions for some minor misdemeanors.

Did the police act properly?

This question needs a careful analysis on a case by case basis. A person does have constitutional rights that the police must follow in gathering evidence but a full discussion is beyond the scope of this blog. Generally if the evidence is gathered improperly, it is not admissable against the accused.

What if I have already confesssed or made a statement?

Don’t worry. It may not be admissible for a variety of reasons. Like most evidence related issues, a case by case analysis is required.

Is my case winnable?

To lose your case, the prosecution must be able to prove its case beyond a reasonable doubt. That means they need alot of good evidence. Even if you are guilty, you may still be acquitted if the evidence simply isn’t strong enough or their witnesses are believable. Many cases are winnable if the accused is willing to fight it hard enough and long enough.
Can I afford a good attorney?

Hiring a good attorney is expensive. To fully fight your case, your attorney is going to have to put in alot of time and effort and spend money on his business to provide you the best possible outcome. You do get what you pay for. Many people decided it is not worth it. That is a personal choice. Look long and hard at the long term outcome of losing and then decide.

Criminal Sexual Conduct (more info)

Michigan has 4 degrees of criminal sexual misconduct. The penalties for these crimes are amont the most serious under Michigan law. If you are facing one of these charges, get a very good attorney immediately. In most cases, these charges are not going to resolved by probation or a slap on the wrist. If the victim is under 17, your entire future is on the the line. Don’t take a criminal sexual conduct charge lightly.

The commentary from The Michigan Model Criminal Jury Instructions distinguish the different degrees as follows:

“The Michigan statute concerning criminal sexual conduct, MCL 750.520a et seq., creates four degrees of the offense. First-degree criminal sexual conduct involves an act of sexual penetration accompanied by one or more aggravating circumstances set forth in MCL 750.520b. Second-degree criminal sexual conduct involves “sexual contact” accompanied by any of the aggravating circumstances for criminal sexual conduct in the first degree or one or more of four additional circumstances relating to sexual contact between state or county corrections officers and inmates, probationers, or pretrial detainees. MCL 750.520c. Third-degree criminal sexual conduct, like criminal sexual conduct in the first degree, requires for conviction an act of sexual penetration accompanied by designated aggravating circumstances, MCL 750.520d, other than those specified for first-degree criminal sexual conduct. Finally, criminal sexual conduct in the fourth degree involves sexual contact aggravated by circumstances not specified for criminal sexual conduct in the second degree. MCL 750.520e.
In sum, first- and third-degree criminal sexual conduct require an act of sexual penetration with “greater” and “lesser” aggravating circumstances respectively, whereas criminal sexual conduct in the second degree and the fourth degree require sexual contact with “greater” and “lesser” aggravating circumstances. Criminal sexual conduct in the first degree is punishable by life or any term of years; criminal sexual conduct in the second degree and criminal sexual conduct in the third degree are punishable by up to 15 years in prison; and criminal sexual conduct in the fourth degree is punishable by up to 2 years in prison.
The statute also creates the offenses of assault with intent to commit criminal sexual conduct involving penetration, a 10-year felony, and assault with intent to commit criminal sexual conduct in the second degree, a 5-year felony. MCL 750.520g.”

In future blogs, I will discuss each degree in more depth and give examples of the aggrevating circumstances mostly commonly handled in my practice.

Criminal Sexual Conduct 1st and 3rd Degree

riminal Sexual Conduct (CSC) in the 1st and 3rd Degree are felonies that require some form of penetration by the accused to the victim. The penetration requires some object be placed in the genital or anal opening of the victim. The object can be a part of the accused body or some foreign object. Criminal Sexual Conduct in the 1st Degree is a felony that can result in life imprisonment. Criminal Sexual Conduct in the 3rd Degree is punishable by a maximum 15 years in prison. The difference between the two are the “aggravating circumstances” present.

If a defendant has put a part of his or her body into the body of another, and one or more of the following is present, then the charge is CSC 1st Degree:
(a) That other person is under 13 years of age.
(b) That other person is at least 13 but less than 16 years of age and any of the following:
(i) The actor is a member of the same household as the victim.
(ii) The actor is related to the victim by blood or affinity to the fourth degree.
(iii) The actor is in a position of authority over the victim and used this authority to coerce the victim to submit.
(iv) The actor is a teacher, substitute teacher, or administrator of the public school, nonpublic school, school district, or intermediate school district in which that other person is enrolled.
(v) The actor is an employee or a contractual service provider of the public school, nonpublic school, school district, or intermediate school district in which that other person is enrolled, or is a volunteer who is not a student in any public school or nonpublic school, or is an employee of this state or of a local unit of government of this state or of the United States assigned to provide any service to that public school, nonpublic school, school district, or intermediate school district, and the actor uses his or her employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person.
(c) Sexual penetration occurs under circumstances involving the commission of any other felony.
(d) The actor is aided or abetted by 1 or more other persons and either of the following circumstances exists:
(i) The actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physicallyhelpless.
(ii) The actor uses force or coercion to accomplish the sexual penetration. Force or coercion includes, but is not limited to, any of the circumstances listed in subdivision (f).
(e) The actor is armed with a weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a weapon.
(f) The actor causes personal injury to the victim and force or coercion is used to accomplish sexual penetration. Force or coercion includes, but is not limited to, any of the following circumstances:
(i) When the actor overcomes the victim through the actual application of physical force or physical violence.
(ii) When the actor coerces the victim to submit by threatening to use force or violence on the victim, and the victim believes that the actor has the present ability to execute these threats.
(iii) When the actor coerces the victim to submit by threatening to retaliate in the future against the victim, or any other person, and the victim believes that the actor has the ability to execute this threat. As used in this subdivision, “to retaliate” includes threats of physical punishment, kidnapping, or extortion.
(iv) When the actor engages in the medical treatment or examination of the victim in a manner or for purposes that are medically recognized as unethical or unacceptable.
(v) When the actor, through concealment or by the element of surprise, is able to overcome the victim.
(g) The actor causes personal injury to the victim, and the actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless.
(h) That other person is mentally incapable, mentally disabled, mentally incapacitated, or physically helpless, and any of the following:
(i) The actor is related to the victim by blood or affinity to the fourth degree.
(ii) The actor is in a position of authority over the victim and used this authority to coerce the victim to submit.
If the defendant has put a part of his or her body into the body of another, and one or more of the following:
(a) That other person is at least 13 years of age and under 16 years of age.
(b) Force or coercion is used to accomplish the sexual penetration. Force or coercion includes but is not limited to any of the circumstances listed in section 520b(1)(f)(i) to (v).
(c) The actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless.
(d) That other person is related to the actor by blood or affinity to the third degree and the sexual penetration occurs under circumstances not otherwise prohibited by this chapter. It is an affirmative defense to a prosecution under this subdivision that the other person was in a position of authority over the defendant and used this authority to coerce the defendant to violate this subdivision. The defendant has the burden of proving this defense by a preponderance of the evidence. This subdivision does not apply if both persons are lawfully married to each other at the time of the alleged violation.
(e) That other person is at least 16 years of age but less than 18 years of age and a student at a public school or nonpublic school, and either of the following applies:
(i) The actor is a teacher, substitute teacher, or administrator of that public school, nonpublic school, school district, or intermediate school district. This subparagraph does not apply if the other person is emancipated or if both persons are lawfully married to each other at the time of the alleged violation.
(ii) The actor is an employee or a contractual service provider of the public school, nonpublic school, school district, or intermediate school district in which that other person is enrolled, or is a volunteer who is not a student in any public school or nonpublic school, or is an employee of this state or of a local unit of government of this state or of the United States assigned to provide any service to that public school, nonpublic school, school district, or intermediate school district, and the actor uses his or her employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person.
(f) That other person is at least 16 years old but less than 26 years of age and is receiving special education services, and either of the following applies:
(i) The actor is a teacher, substitute teacher, administrator, employee, or contractual service provider of the public school, nonpublic school, school district, or intermediate school district from which that other person receives the special education services. This subparagraph does not apply if both persons are lawfully married to each other at the time of the alleged violation.
(ii) The actor is a volunteer who is not a student in any public school or nonpublic school, or is an employee of this state or of a local unit of government of this state or of the United States assigned to provide any service to that public school, nonpublic school, school district, or intermediate school district, and the actor uses his or her employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person.

As you can see, most of these charges are related to sex with persons under 16 years old. Be careful and make sure you admit nothing if someone accuses you of one of these charges.

Get the Facts

I often see these high profile cases in the media about a person accused of some crime. It frustrates me how both the media and the public immediately assume that a person is guilty just because they have been arrested and accused of something. We have a Constitution that requires a person be presumed innocent. Sadly, most people nowadays presume a person is a guilty until proven innocence.

This is troubling for two reasons. First, a person can rarely prove he is innocent. Unless there is a good alibi defense or some other affirmative defense, often it comes down to one person’s word against another. If a defendant tries to prove he is innocent, he is then taking on a burden of proof in the eyes of many jurors. The trial then becomes a credibility war; which few defendants can win. Many people charged with crimes are below average intelligence, scared to death, and are not able to articulate their case well enough to convince a skeptical jury.

The second reason is that is makes jurors ineffective at doing their job. The whole concept of an unbiased jury that will decide based on the evidence goes out the window if people are pre-disposed to assume some one is guilty. The whole point of a trial is to ascertain the facts. A person whose mind if half made up can’t do that. If the emotional pull of the charge, (criminal sexual conduct with a miner, murder, robbery etc) already puts a person in state of skepticism towards the defendant the case is already lost.

People don’t understand or appreciate how many people are in prison based on false accusations and juries that believed the lies in spite of the evidence. It is important that we all keep an open mind and remember that the government may someday come after you or a loved one. The Constitution will no longer seem like a worthless piece of paper at that point.

Brief Overview of Constitutional Rights

This will be a short thought on our Constitution and our Bill of Rights. Four of the first 10 Amendments to the Constitution deal exclusively with the rights of the criminally accused. Our Founding Fathers put alot of thought into the power of the state versus the power of the accused in a criminal matter. They understood that an average person could never match the resources of the government when it came to presenting a case. They also understood that a person cannot really prove he is innocent except in rare cases. For these reasons, they gave each of us some very basic protections that need to be strictly enforced. These include:

The right to not testify or make a statement or testify.
The right to an attorney (that the state needs to pay for it for the poor is not in the Constitution but came later via the Warren Court).
The right to a trial of a jury of one’s peers. This is important. These are our fellow citizens the state is going after.
Protection from unreasonable searches and seizures. Without this, the police can just bust down your door and plant evidence at their whim.
Cruel and unusual punishment. I would argue the death penalty and Driver Responsibility fees fall under this category as doe any “three strikes” law).

There are others but these form the foundation. Along with the state’s burden on proving the case beyond a reasonable doubt, these are our basic protections against unfounded accusations. It doesn’t matter if someone is guilty but rather that the state can meet its burden of proof.

I will right another blog on how I think Conservative jurors need to go back to high school to re learn these things.

It can be wise to fight

The majority of people charged with a crime end up taking a plea deal. That means that the prosecutor offers them an opportunity to plea down to a lesser charge or a lesser penalty if they plea guilty and avoid a trial. This can make a lot of sense for some people.

If you are a first time offender and can get a deferred sentence or a diversionary program where you have no permanent record, this can be an enticing offer. If you are not a first time offender but are facing your first felony charge, an opportunity to plea down to a misdemeanor can be a good thing; particularly if you are concerned about getting a job as a convicted felon. Sometimes just staying out of jail is enough to make this worthwhile. Even an innocent person will sometimes take a plea deal to avoid the risk of a lengthy prison sentence if he were to lose at trial.

On the other hand, there are times where people should think long and hard about the consequences of just “pleading out.” For example, if the state’s case isn’t very strong, you may very well get a jury to return a not guilty verdict. It can and does happen. Also, occasionally the prosecutor will make a better offer nearer a trial or may even dismiss the case outright. Having the stomach to hang in there is difficult but can be worth it.

Also, because Michigan tends to punish repeat offenders more severely, avoiding any kind of a record can be to one’s long-term advantage. No one thinks that she will get in trouble again, but if she does, having a clean slate the second time around can be a large bargaining chip. Michigan has a number or crimes that become an automatic felony the third time through. Domestic violence, retail fraud, and drunk driving are three common ones.

Those long ago guilty pleas can come back to bite you later on. Think long and hard about the merits of the state’s case before accepting any plea offer.

Ryan Maesen

Consecutive Sentencing Part I

There is some confusion out there regarding the difference between consecutive sentencing and concurrent sentencing. This issue comes up most frequently arises when a person:

  • pleads guilty or is convicted of multiple felonies
  • commits a felony while on probation or parole
  • commits a new crime while on bond or while incarcerated

Consecutive sentencing is when a person must complete one prison or jail sentence before beginning to serve time on the next one. For example, if someone is serving a 3 year sentence for and then gets a convicted of something else, the sentence on the new crime would not begin until the 3 years is up. This obviously can add a lot of time to one’s time in prison. That is why most defendants prefer concurrent sentences.

Concurrent sentences allow a person to serve multiple sentences at the same time, getting credit for all of them at once. Fortunately, this is the norm in Michigan. However, there are certain instances when consecutive sentencing does occur.

The first is when the legislature makes it mandatory as part of a statute and the second is when the judge has discretion to sentence a defendant consecutively. Not surprisingly, the legislature has been steadily adding provisions whereby consecutive sentencing is becoming more common.

The next part of this blog will discuss mandatory consecutive sentencing. That blog will be followed by one discussing discretionary consecutive sentencing.

Sentencing Guidelines – An Overview

A person charged with a felony is going to hear their attorney talk about “sentencing guidelines” and because this often creates a lot of fear and confusion, I thought it would be helpful to offer a brief overview on what exactly sentencing guidelines are and how sentencing works in Michigan.

The first thing to understand is that the number your attorney (or judge, prosecutor, or probation officer) uses when describing sentencing guidelines refers to the range of months that judge must sentence you to for the minimum portion of your sentence. The maximum is set by the statute and your attorney doesn’t have much say at all what happens on the back end of a sentence. A defendant is at the mercy of the Department of Corrections and the parole board. However, most inmates are paroled as soon they are eligible to it is important to work hard to get the minimum number (the sentencing guidelines range) down to the lowest amount possible.

For example, if a particular person’s sentencing guidelines are 51-80 months and the person is convicted of a 15 year felony, the maximum sentence is 15 years and the minimum part will be between 51-80 months. The judge has the discretion to sentence the defendant to some term between 51-80 months before the defendant is eligible for parole. So the final sentence may be 60 months to 180 months or 5-15 years.

People often get confused when they hear their attorney say the guidelines are 10-23 months on a ten year felony and think that the person will be out in 23 months at the latest. That is NOT the case. The 23 months is the maximum for the minimum portion of the sentence. The judge could set the minimum as low as 10 months or as high as 23 but it will be a set number within that range.

Some crimes have mandatory minimum terms and some require life in prison. There is another tricky category that sets the penalty at “life of any term of years.” In those cases, the judge can set the maximum wherever she feels fit; often a chilling proposition. In many cases, however, there is a plea agreement to a lesser charge that removes this possibility. I have also had clients that are convicted of a crime that has “life or any term of years” get a maximum sentence of only 5 years, so it isn’t necessarily a “death sentence.”

In a future blog, I will discuss the factors that go into determining a person’s sentencing guideline range.

It can pay to fight

The majority of people charged with a crime end up taking a plea deal. That means that the prosecutor offers them an opportunity to plea down to a lesser charge or a lesser penalty if they plea guilty and avoid a trial. This can make a lot of sense for some people.

If you are a first time offender and can get a deferred sentence or a diversionary program where you have no permanent record, this can be an enticing offer. If you are not a first time offender but are facing your first felony charge, an opportunity to plea down to a misdemeanor can be a good thing; particularly if you are concerned about getting a job as a convicted felon. Sometimes just staying out of jail is enough to make this worthwhile. Even an innocent person will sometimes take a plea deal to avoid the risk of a lengthy prison sentence if he were to lose at trial.

On the other hand, there are times where people should think long and hard about the consequences of just “pleading out.” For example, if the state’s case isn’t very strong, you may very well get a jury to return a not guilty verdict. It can and does happen. Also, occasionally the prosecutor will make a better offer nearer a trial or may even dismiss the case outright. Having the stomach to hang in there is difficult but can be worth it.

Also, because Michigan tends to punish repeat offenders more severely, avoiding any kind of a record can be to one’s long-term advantage. No one thinks that she will get in trouble again, but if she does, having a clean slate the second time around can be a large bargaining chip. Michigan has a number or crimes that become an automatic felony the third time through. Domestic violence, retail fraud, and drunk driving are three common ones.

Those long ago guilty pleas can come back to bite you later on. Think long and hard about the merits of the state’s case before accepting any plea offer.