Criminal

Most people are aware that the State Legislature proposes laws, and if acceptable to the Governor, they are signed into law.  This is also true at the Federal level; Congress proposes laws, and if acceptable to the President, those laws are signed into law, at the Federal level.  We are just going to talk here about Michigan law.

So, most people are aware of the laws passed by the State Legislature, and that when signed into law, they are called “statutes”, kept in compiled form, called “Michigan Compiled Laws”.  You can use this link here, to search Michigan statutory law, either by statute number or by key words.

However, when your case is on trial, whether it is a criminal or even a civil matter, what is really important, is the law that the judge instructs the jury on.  Juries are made up of folks who do not really know the law, and therefore, they must be instructed on the law.

Most of the time, jury instructions are “pattern”, meaning that they are devised ahead of time, by panels of accomplished, seasoned, knowledgeable professionals, based on statutory law, and based on Appellate Court decisions interpreting that law.  Most cases can be tried properly, using these “pattern” jury instructions, although judges will at least consider using jury instructions, specially drafted by one of the trial lawyers, if the facts and the law require it.

Thus, no matter how much people talk about this law and that law, what often matters the most, is what the jury thinks the law is, and that is what the judge tells them the law is.  Everything we do, in both civil and criminal cases, is leveraged against what the jury might do with this case, in the event the matter gets that far.  That is why some lawyers, myself included, will often cite to jury instructions, to support whatever legal proposition they want to make before a court. 

In criminal cases, you can find the Michigan Criminal Jury Instructions at this hyperlink, and the Michigan Civil Jury Instructions at this hyperlink.

If you have any questions about your rights in a matter that might require input of an experienced trial lawyer, give Jon Frank a call at (586) 727-1900, or email at jon@jonfranklaw.com.

Can a criminal history, going back far enough in time, be wiped out? Many times, folks lived life differently in the past, than they do now; the need to work, support a family, pursue educational opportunities, etc, require that a criminal history be “buried” as much as the law will allow.  Can this be done?

Traditional Michigan Expungements

Yes and no.  Under Michigan law, “expungement” merely makes a formerly public adult criminal conviction record, nonpublic.  As far as the criminal justice system is concerned, you were still convicted of the crime; the only difference, is that after the conviction is “expunged”, it will not be visible to persons/entities outside the criminal justice system.  Who does that include? Potential employers, educational institutions, and lawyers like me, who are not employed by Prosecutors’ offices.  I am informed that Federal Immigration/Customs authorities will continue to have access to this information.

Expungements are governed by statute, specifically MCLA §780.621, which requires eligible persons to apply to the court where the conviction was entered.  If the conviction was out-of-state, you must go there (if you are eligible for expungement at all, in that other state); if your conviction was in a Michigan court far away, you must go there.

Who is eligible?

1. A person who has at least five years since the latest of the following:
2. Imposition of sentence;
3. Completion of probation;
4. Discharge from parole;
5. Completion of any term of imprisonment
6. A person convicted of no more than one felony, AND no more than 2 misdemeanors, can petition the convicting court to set aside the felony;
7. A person with no more than two misdemeanor offenses, and no other felony offenses, may ask the convicting court to set aside one or both of the misdemeanor convictions;
8. A person convicted of 4^th degree criminal sexual conduct under MCLA §750.520e, provided that:
9. The person who committed the offense is not older than 21 years of age;
10. The conviction predated January 12, 2015;
11. The person who committed the offense has not been convicted of another offense, other than two “minor offenses”, defined as
12. Offenses with maximum imprisonment time not exceeding 90 days;
13. The maximum fine is no more than $1,000.00

New “Clean Slate” Legislation

New legislation passed into law in Michigan, should start making the process of expungements easier, and in some cases, starting in April 2023, automatic. Specifically:

1. Beginning in 2023, creating an automatic process for expunging eligible misdemeanors after seven years, and eligible non-assault felonies after 10 years;
2. Expanding the number and revising the types of felonies and misdemeanors eligible to be set aside by application (effective April 2021);
3. Revising the waiting periods before being eligible for expungement;
4. Treating multiple felonies or misdemeanor offenses arising from the same transaction as a single felony or misdemeanor conviction, provided that the offenses happened within 24 hours of one another, and do not involve assault, possession/use of a dangerous weapon, or any other crime carry a penalty of 10 years or more in prison;
5. Expanding the eligibility for expungement of various traffic offenses; paragraph on the person to petition to set aside one or more marijuana offenses if the offense would not have been a crime, if committed after the use of recreational marijuana by adults became legal in Michigan

Do you have questions regarding your eligibility for expungement of a past criminal offense? Give Jon Frank a call at (586) 727-1900, or email at jon@jonfranklaw.com

I am limiting my comments here to misdemeanor drunk driving & drug possession cases. (Don’t try handling your own felony cases either, folks) Let’s face it. While a significant percentage of these cases are “bogus”, and should never have been brought, the vast majority of these cases DO have a basis in fact/law, and a significant majority of THOSE cases are disposed of by plea bargain.

However, you will likely never be able to fight the misdemeanor drunk driving & drug possession case, which should never have been filed, without a lawyer’s help. As to those cases that seem to move inevitably, toward a plea, you will need a lawyer, to help you get the best deal available. There is a big difference, in what Prosecutors and the courts will give represented v. unrepresented people. Get a lawyer, and yes, call me. Jon Frank. 877-FRANK-LAW

It is unlikely that you will find yourself unrepresented in a criminal case, because the Courts will offer you court-appointed counsel. They are actually anxious to get you a court-appointed attorney, because they do not want to see your case visit their courtroom again, on appeal. That might happen, where the first time around, you were denied your right to an attorney. But let us say, that you find yourself approaching a sentencing hearing, without the benefit of an attorney.

My first piece of advice is to see what you can do, to turn back the hands of time. Yes, I am being a bit sarcastic here, because we all know, that we cannot go back in time. However, I am not being completely sarcastic. The time to start preparing for a sentencing hearing, particularly one where we know that a finding of guilt is likely, is immediately after the offense. Even before getting a lawyer. ESPECIALLY before getting a lawyer.

The benefit to starting some concrete steps, before retaining a lawyer, is that it looks like you took responsibility for your actions, and did not merely “follow the program”, because your lawyer told you to do so. That’s not to say that “following the program”, on the advice of counsel is a bad idea; if you have hired a lawyer, it makes sense to follow their advice. However, it always looks better if it looks like you took concrete constructive steps on your own, without having to be told.
AA/NA

Lawyers vary in their opinions on whether a client should be advised to pursue counseling, or Alcoholics Anonymous. Some believe that it is effectively an admission by the client, to the Court system, that the bust was good, and that the client really does have all of the problems the Prosecutor says he/she has.

I take a different view. I believe that Prosecutors and Judges will go more leniently on a client in a sentencing hearing, when the client can truthfully say, that they have been in counseling since shortly after the arrest, or that they have been attending AA.

On the subject of AA, I cannot say that I myself have been a big believer in it; clients are often uncomfortable in AA groups, where religion is discussed. Many clients in on misdemeanor drunk driving or drug use/possession really do not have drug/alcohol problems, and they go to AA to influence a judge. They don’t feel like they belong in an AA meeting, because they probably don’t belong in an AA meeting. Of course, judges don’t really know if the client belongs in AA or not, and they default to sending them, thinking that it cannot hurt.

Statistics are tough to come by, as to the effectiveness of 12-step programs, like AA/NA, due to the anonymous nature of the groups. However, there are some studies showing that AA/NA programs are effective, and that is why judges keep ordering them. I am linking to some studies here and here. Whatever the case, AA/NA will be around for awhile, and you need to think about how your attendance can help favorably influence a judge at the time of sentencing.
Timing is everything here, too. If I can say, as your lawyer, that you were in counseling, before you even retained me, this goes a long way toward convincing the judge to go easier on you.

Make sure that all of your counseling and attendance at AA/NA is documented. Your mere word will not be sufficient. Everything, from your attendance at counseling sessions, AA/NA, to your payment of fines, and your compliance with community service requirements, must be documented. On papers you can show a judge.
Do It Early

Whatever requirements the court imposes on you, at the time of the guilty plea, make sure you are in full compliance. If you are not, you can bet the judge will take it out on you, at the time of sentencing. If there are deadlines or time limits, make sure that you can document you did EARLY, whatever the judge ordered you to do. Not just on time, but early.
That includes payment of fines, presenting for urine/blood testing, fingerprints, community service, probation appointments, etc. Anything & everything. Early.

Say Nothing – Or At Least As Little As Possible – “OK, Jon, I know all that, but what I need to know is how to handle the actual hearing”

As your attorney, if I were appearing for you, I would marshal the facts to present you in the best possible light for sentencing. I might file a Sentencing Memorandum.
After I give the Judge my pitch, on your behalf, the Judge usually turns toward the client, and asks if he/she has anything to add. I counsel the client at this point, to offer their apologies, say it will never happen again, and to then shut up.

The judges sometimes get aggressive with the client, and say something like, “you BETTER have something to say!” When that happens, the judges do not want to hear from me, and I counsel people to have something good to say. At the very least, you should be able to tell the judge that “nobody could feel worse about the situation”, than you. However, if you find yourself alone at a sentencing hearing, you will probably be reminded yet again, by the Judge, that you have a right to an attorney at this stage of the proceedings.

However, if you are alone, you will discuss what you have done, to earn the judge’s leniency. Not what you say you will do, if the judge goes easy on you, but what you have done. Done. Past tense. Documented. AA/NA. Counseling. Personal factors that you think should make the judge go easy on you, better be documented; you are the only one to take Grandma to the doctors and the grocery store, etc? Better be able to somehow prove it. As someone who did those things for his Grandma, I know that will not be easy.

Demonstrate to the Court, that you are not like the vast majority of people coming into sentencing hearings.
1. Dress like a prospect, and not like a suspect.
2. Speak respectfully, and clearly.
3. Say what you need to say, and then say nothing more.
4. Make darn sure that everything you say is true, or you WILL be going to jail.

Conclusion? In the final analysis, you should never go into court unrepresented, any more than you should attempt to take a stroll in the middle of a busy freeway. Get a lawyer, and yes, call me. Jon Frank. 877-FRANK-LAW.

The procedure is the same as for “misdemeanors”, except that felonies are tried in Circuit Court; because felonies are more serious offenses with more jail time, there are procedures & hearings designed to provide you with additional legal protections.

After the District Court arraignment, the Court will set a “Probable Cause Conference” (PCC), at which you will have an opportunity to inform the Court whether you want to waive the “Preliminary Exam” (see FAQ on Preliminary Exams, for what is at stake in this decision).

Assuming that the Preliminary Examination is not waived, the question is whether there is enough evidence to transfer your case to the Circuit Court for trial on the felony. 

If the Judge finds that there is enough such evidence, your case will be transferred to the Circuit Court, where you will undergo another Arraignment and pre-trial.  If the matter is not resolved at the pre-trial, or by means of a Motion (see FAQ on motions), the matter then proceeds to a criminal trial, in the Circuit Court.

“Preliminary examinations”, or PE’s are set in cases where a felony is charged. These examinations are “mini-trials”, at which the District Court Judge must determine if there is enough evidence against you, to transfer your case to Circuit Court. A decision to transfer your case is sometimes called “being bound over to Circuit Court”.

If the District Court binds you over, you go to Circuit Court (see FAQ on Felonies), on all charges, including misdemeanors that the District Court would have tried, had they been the only charges.

If you were charged with a felony only, and the Judge denies “bind over”, your case might theoretically be dismissed, but this is not likely. Prosecutors are supposed to base their charging decisions; on a calculation of whether they can prove their case “beyond a reasonable doubt”. Therefore, a Prosecutor is less likely to charge, where he/she knows they have a weak prosecution case.

Also, you need to know that District Court Judges are often deferential to prosecutors, giving them the opportunity to try their cases. Chances are that “bind over” will be granted.

Because the burden, however light, is on the Prosecutor to show at a PE, that there is enough evidence to bind you over to Circuit, you gain nothing by putting evidence on here. Indeed, there is no reason you should “show your hand” to the prosecution, by putting on evidence here (There may be some exceptions to this).

The reason I normally do not waive PE’s, is because these hearings give me an opportunity to meet, assess, and cross-examine police officers and adverse witnesses, and to commit them to testimony. If the witness deviates from the preliminary exam testimony at time of trial, I have a transcript of the PE to use at trial to undermine their testimony at your Circuit Court trial.

Crimes generally fall into two categories, misdemeanors & felonies. Normally, the difference between the two, is that misdemeanors have potential jail time of one year or less, while felonies involve jail time of one year or more (NOTE: Michigan does have some two-year “high” misdemeanors).

If you have been charged with a misdemeanor, the first court appearance is the “Arraignment”, in District Court, where the charges will be read to you, and at which you can enter a plea.  If you are represented by a lawyer, you will typically plead “not guilty”, so that you can move on with the process.  

Arraignments also involve the issue of bail. Are you a flight risk? Do you have ties to the community? Did you voluntarily appear for arraignment following news of an arrest warrant? Your lawyer will handle all of these issues for you, and will get the information from you, that they need to represent you.

The next hearing in a misdemeanor case will be the “pre-trial”.  Formally, the only question at the pre-trial, is whether there will be a plea bargain, or if the matter should be set for trial. By this time, experienced defense counsel will have already received a copy of the Prosecutor’s “discovery” file, and will know enough to make informed decisions about whether you should plead, or move on to trial.

There may be pre-trial Motions, such as motions to suppress illegally obtained evidence.  Those may be scheduled at the pre-trial, or in the period between then and trial.

The last step is the jury trial, when a final determination will be made on whether you are formally found guilty or not guilty.

The evidence against you in a criminal case has to be obtained by the police, lawfully. If not, your case could be dismissed in whole, or in part, by means of a “Motion to Suppress”.

In order to stop you, the police must have, a “reasonable suspicion” that a crime was committed, and that you committed it. In order to seize evidence from your home, your person, your vehicle, etc, the standard is a bit higher; they must have “probable cause” to believe that you have evidence of a crime in your possession. What constitutes “reasonable suspicion” and “probable cause”? Specifics are set forth in appellate court cases from Michigan, and from the Federal Court system. Your lawyer will help you determine if the police made “a good stop”, or if the seizure was lawful.

Not all seizures of persons or evidence require warrants.  There are well-defined exceptions to the requirement of a search/arrest warrant, and again, your lawyer should be able to guide you through this subject.

If your lawyer DOES decide that the police did not follow the law, he/she may file a “Motion to Suppress” evidence.  If granted, a Motion to Suppress may result in significantly reduced charges, and may in fact, result in all charges being dismissed.

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