Arraignments: What you should know and what to do

An arraignment is the first court appearance for a person facing criminal charges. The purpose of an arraignment is 1) inform the person of the charge or charges pending against him or her 2) set bond 3) set the next court date. Generally, arraignments are fairly quick and painless. That is not to say that they can’t be somewhat stressful; particularly for those who have never been in trouble before.

After the judge or magistrate reads the charges, he will ask if you wish to enter a plea of guilty or not guilty. (or stand mute which operates like a not guilty). Many judges will automatically enter a not guilty plea for a felony. He or she may also appoint an attorney if you say you can not afford one or if you are not yet sure if you will retain one. You can always replace your court appointed attorney with an attorney of your choice, though it is generally to your advantage to do so sooner than later.

For a misdemeanor, it is wise to enter a not guilty plea as well. Even if you are in fact guilty, you may wish to at least move the case forward to a pre-trial conference and see if the prosecutor may offer you a “plea deal” which may include reduced charges and/or no jail. You have nothing to lose at this point.

Some courts allows you to waive your arraignment via sending in certain paperwork. You have to hire an attorney to do so. This is only allowed in certain misdemeanors, never in felonies.


Maybe it is time to get rid of all court appointed attorneys

As the article below shows, their are major problems with the court appointed attorney system in Michigan. While I am sympathetic to those who truly can’t afford an attorney, many people are given a court appointed attorney even when they have good jobs and should have assets to pay for one. They are just being cheap. I have many clients who are on disability or even unemployed who can still pay. Why can’t families help out? The bigger problem is that we don’t have a set definition “indigent” and we don’t have a culture that wants people to take responsibly for their own lives.

Their are no government appointed mechanics to fix your car or sell your house. We don’t expect the government to mow our lawns or buy or clothes. Yet me expect the same government that is spending astronomical amounts of money to prosecutor, convict and house a person to also pay to defend them? The conflict of interest alone should raise some eyebrows.

You get what you pay for. Like it or not, that is the reality.

Court Appointed Attorneys do Little Work

It would be nice if Courts would make this the law

I practice throughout West Michigan working almost entirely for people charged with a crime. One thing I have noticed lately, particularly is the lower population counties is a basic law of professional courtesy. I am talking specifically about counties such as Barry, Muskegon, Ionia, and Montcalm. Sometimes a person charged with a crime in these counties will want to hire an attorney from out of town. A client may do this for a number of reasons. Sometimes they believe that “big city” attorneys are somehow better (and to be honest, that is usually the case), they may have had a bad experience with the local attorneys, or they may feel that having someone who is not “part of the club” can give them an advantage and who is not afraid to ruffle feathers. All of these are valid reasons in certain cases.

Whatever the reason, one thing I have noticed recently is a form of overt discrimination against the out of town attorneys and their clients. If court starts at 8:30 AM (and the podunk counties always seem to want to start at the asscrack of dawn), I often don’t have my case called until 11. I think that is rude. I am on the clock and most likely my client has to get back to work. It is costing us money to sit there for nearly three hours to see the judge for 5 minutes. I am tired of seeing endless people paraded out in their jail suits with their sloppy court appointed attorneys. Neither they nor their attorney have anywhere to be. Why not let those who are actually paying for their defense go first? It is basic decency. If someone is unwilling to pay for justice, then why should they be rewarded? I feel this is a deliberate attempt to prevent people from hiring of town attorneys and rocking the boat.

They ought to call out of town attorneys first, then retained counsel, and last the court appointed attorneys with their in custody clients. I am proud to say that many times when in these counties, I am the only attorney whose client walks free and out free. You get what you pay for.

Don’t Believe Everything you Read in the News

On occasion, one of my clients and their case will be featured in the news. I am ethically prohibited from talking to the media in a way that would influence public opinion about the case, so I usually keep my mouth shut. That being said, there are a few a things that I need to get off my chest.

First of all, the media is looking for a headline and are rarely interest in reporting all of the facts. Their are two sides to every story and really are both of them given.

Second, a person charged with a crime is merely accused of doing something wrong. There has yet to be a trial, or any witnesses called against him. He has not yet had a chance to publicly state his side of events. Yet many people believe that just because some one is accused that he or she is guilty. That is a very dangers thing to assume.

And third, when a person is in fact acquitted or found not guilty, the media very often doesn’t report on this, or if they do, give it a very skimpy amount of coverage. When a person is falsely accused of a crime and is then exonerated, that is BIG news. The government got it wrong. In many cases, they flat out tried to frame some for something they didn’t do. That is wrong and it is disturbing little accountability society requires or our criminal justice system.

The Trouble with Bonds

In many criminal cases, the defendant is required to post some type of bond. There are four main types, a PR (personal recognizance bond), a cash bond, a cash/surety bond and a 10% bond. While clients typically prefer the PR bond, many judges do not grant PR bonds in most cases. I can say from experience that a person has a much better chance of getting a PR is he/she hires a lawyer and has him/her present at the arraignment. However, because a person is often arrested before he can speak with or hire an attorney, he is often stuck with whatever type of bond the judge decides to give out. Below is a brief description of each type of bond.

Types of Bonds

  •   A personal recognizance bond is a bond that does require  person to post any cash. Just sign a paper acknowledging the bond conditions and you are on your way.
  •   A cash bond requires that the full amount be posted in cash. Obviously most courts accept a credit card as well.
  •   A cash/surety bond means that you must post 10% of the bond have collateral for the rest of it.
  •   A 10% bond simply requires 1o% of the bond total be posted. There is not requirement for collateral.

A word of Caution

One of the most frustrating parts of being a criminal defense attorney is when a client calls you and has no money to retain you because they spent all their money on the bondsman. That is a completely backwards way of thinking. Get an attorney first and then see if he or she can lower the bond. Sometime a relative in jail is very insistent on “get me out.” However, you need to keep in mind big picture. It is far better to sit in jail for a few days and get a good lawyer than to get out only to go back later because you have an ineffective public defender. Do you want to get out or stay out. The family needs to keep the person in the jail calm and let the situation work itself out. Too many people are in jails and prisons that don’t have to be simply because they wanted to “bond out” right away. Very dumb and completely avoidable.

A recent story: A man called me yesterday. To get a bond for his son, who was facing serious drug charges, he put up both his vehicles and his modular home.  When his son didn’t show up for one of his court dates (he didn’t tell me the reason), the bondsmen went to his son’s house to arrest him and then seized the dad’s vehicles and his modular home leaving a 60 year old man with nothing; all because his son didn’t show put court once. I have had numerous clients not show up to court and their family’s property was not seized. What a shitty break.


Talking to the Police and Miranda

The police must read your your Miranda rights or “Mirandize” when two conditions are met. First, you must be under arrest or be able to leave. And second, the information they are attempting to glean from you must be incriminating. Trust me, if you are being investigated for committing a crime, they are always trying to get you to incriminate yourself. That is never the issue. The real issue centers on whether or not you are under arrest. The police have become masters of trying to get a person to talk without mirandizing him or her by making trying to convince the person they he or she is in fact free to leave or not under arrest.

Some of the tricks they use include the following:

  • Leaving the door open the police cruiser
  • Pointing at the door of the interrogation room and saying you leave at anytime.
  • Sitting on your couch and saying “you are not under arrest and can ask us to leave at anytime.”
  • Telling you that if you just talk, that everything will go away.
  • You aren’t in trouble, we just want to talk

See the pattern?

Don’t fall for their tricks.

You can always say no to police questions. Most experienced criminal defense attorneys won’t allow you talk to the police in almost every situation. We have had charges not brought in cases because with a confession or statement, the police knew there was not enough evidence to charge the person with a crime.

It is also impossible to talk yourself out of getting charged. If they are talking to you, they probably think you did it. They want a confession. If you don’t “admit” to it, then you think you are lying. It is a no win situation.

You can distribute child porn to yourself

Believe it or not, people in Michigan are now being charged as distributors of Child Porn merely be downloading it on their own computer. There is not need for it to be forwarded to a third party.

Recently, I have noticed a number of cases in which the prosecution is charing my client with possessing and distributing child pornography, or in the technical term of the statute, child sexually abusive material. The possession is usually straightforward enough; a person allegedly has it on his or her computer, tablet or mobile device.

The distribution is what concerns me. Not so long ago, a person charged with distributing child sexually abuse material had to actually attempt or in fact give or sell the material another person. And in some cases, that is exactly what has happened. However, in many recent cases, the charge of distribution has been based the statutory language “copies” under MCL 750.145(c)(2). That is not what the legislature intended. This is a case of prosecutorial heavy-handedness.

The distinction between possession and distribution is important because possession carries a maximum penalty of 4 years whereas distribution carries a maximum penalty of 20 years.

I have even had cases where the prosecution couldn’t prove possession due to to chain of custody issues but then tried to force a person to “take a deal” by threatening to add distribution charges. These cases are tough enough without the added charges.

In short, in Michigan, you can distribute child porn to yourself even if you merely download to your own computer. Be very careful at what you are looking at online. File sharing services are watched closely by law enforcement because they know that these services are often used to peddle child porn. Don’t get wrapped up in something you are not actively looking for. You have have the police show up at your door.


Jeffery Willis

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Proving Guilt Beyond a Reasonable Doubt

To convict some one of a crime, the state has the burdend of proving guilt “beyond a reasonable doubt.” More specifically, each element of the charged offense or offenses must be proved beyond a reasonable doubt.

Reasonable doubt does not mean beyond all doubt but rather is means ” a fair, honest doubt growing out of the evidence or lack of evidence. It is not merely an imaginary or possible doubt, but a doubt based on reason and common sense. A reasonable doubt is just that—a doubt that is reasonable, after a careful and considered examination of the facts and circumstances of this case.”

An element is a subpart of a crime. Each crime requires proof of several things in order for a person to be guilty. For example, to prove larceny in a building, a prosecutor must introduce evidence beyond a reasonable doubt for the following 7 elements:

Larceny in a Building
(1) The defendant is charged with the crime of larceny in a building. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant, took someone else’s property.
(3) Second, that the property was taken without consent.
(4) Third, that the property was taken in a [state type of building] 1.
(5) Fourth, that there was some movement of the property. [It does not matter whether the defendant actually kept the property or whether the property was taken off the premises] .
(6) Fifth, that the property was worth something at the time it was taken.
(7) Sixth, that at the time the property was taken, the defendant intended to permanently deprive the owner of the property.2

Elements 5 and 7 are the most difficult for the prosecution to prove and for the defense to dispute. Element 7 is almost always shown by circumstancial evidence. Rarely will a person admit to stealing something. Element 5 is much too generous to the prosecution. A person could try on a coat and then put it down and that could constitute movement. It is very weak. I think a person should at least have to attempt to take the property off the premises to be charged.

One important thing a criminal defense lawyer does is makes sure the jury understands that there will always be some evidence. But some evidence is not enough. I own a copy of the Koran. That is some evidence that I may be Muslim but certainly not enough to say I am Muslim beyond a reasonable doubt. (I am Catholic FYI).

Recently I had a case where a department store thought my client was shoplifting. Even though he purchased alot of merchandise, the loss prevention department stopped him after he had left to store to search him. He was fully cooperative and the search found nothing stolen, only the stuff he bought. He was released. However, a few days later, he received a letter from the Walker police saying they were charging him with shoplifting because a camera caught him allegedly taking something. Naturally, after a month of asking for this tape, I have yet to receive a copy of it.

The state would have a tough time convicting him at trial, but there is enough there for charges to be filed.