Michigan Criminal Lawyers Blog

Rape Confession Excluded From Criminal Sexual Conduct Trial

Fri, 11 May 2012 13:00:07 -0600

A recent Lansing case examined a fundamental privilege - the right to confess to a pastor. In People v. Bragg, a Michigan Court of Appeals upheld a Wayne County Circuit Judge decision that determined that a boy's alleged confession that he raped a girl could not be admitted in a first-degree criminal sexual conduct trial against him.

Michigan criminal sexual conduct charges are serious. If you have been investigated for or are facing any charges for any Michigan sex crime it is important to consult with an aggressive Michigan criminal defense attorney immediately.

First-degree criminal sexual conduct is one of Michigan's most serious sex crimes. Criminal sexual conduct first degree involves some sort of penetration of the alleged victim, with one or more of the variables described in the statue MCL 750.250b.

If convicted, Bragg faces a 25-year mandatory jail term.

Here, Reverend John Vaprezsan of Metro Baptist Church in Belleville testified at a preliminary exam that Samuel Bragg, a 17-year-old parishioner had confessed to raping a 9-year-old girl two years earlier. The confession occurred in the pastor's office. However, at trial the Reverend's testimony was excluded as privileged.

On appeal, Judge Elizabeth Gleicher, joined by Judges Pat Donofrio and Patrick Meter agreed, distinguishing between the situations when a pastor learns of "ongoing or future criminal activity" and may be obligated to report it from when a parishioner discusses prior behavior - especially in the context of seeking penance. Conversations are privileged under Michigan law where a parishioner is seeking penance, even if they're not in the form of formal confessions.

Pursuant to MCL 600.2156, a cleric is not permitted to 'disclose' certain statements made to him. Further, the conversation falls within the scope of privileged and confidential communications as defined by MCL 767.5a(2), as "necessary to enable Vaprezsan to serve as a pastor, because the defendant communicated with Vaprezsan in his professional character in the course of discipline enjoined by the Baptist Church."

Unlawful Entry By Police Leads To Charges Being Thrown Out In Michigan v. Moreno

Fri, 04 May 2012 12:37:54 -0600

A recent Michigan Supreme Court decision dismissed charges against a Michigan man after determining that Holland police officers had entered his house illegally. In Michigan v. Moreno, two Holland police officers tried to enter the house of Angel Moreno, Jr. without a valid warrant.

Your fourth amendment right to be free of illegal searches and seizures protects you from unlawful searches of places where you have a reasonable expectation of privacy - such as your home. If you believe police have subjected you to an unlawful search or seizure, its important to contact an aggressive Michigan criminal defense lawyer right away to protect your rights.

Here, the police officers were in search of another man - Adams - on several outstanding warrants. Adam's car was parked near Moreno's house. The police officers were told that Adams wasn't in the house and that they couldn't come in without a warrant. After saying they wanted to secure the home, the police officers tried to enter the home. Moreno began closing the door, but one of the officers put his shoulder against the door preventing it from shutting. Moreno then struggled with the police officers, and was arrested for and charged pursuant to MCL 750.81d with resisting and obstructing a police officer.

The court determined that the police had unlawfully entered the house. They did not have a warrant and no exigent circumstances existed that provided an exception to the warrant requirement.

New Michigan Criminal Law Makes It A Crime To Lie To Police

Tue, 24 Apr 2012 11:09:37 -0600

Lieutenant Governor Brian Calley has just signed a new bill prohibiting lying to police during a Michigan criminal investigation. Michigan House Bills 5050 and 5051 make it illegal to "conceal material facts or provide misleading statements" in a criminal investigation.

Specifically, Michigan House Bill 5050 amends the Michigan Penal Code to prohibit and
prescribe criminal penalties for concealing a material fact from a peace officer, or misleading a peace officer regarding a material fact, in a criminal investigation of a felony or a misdemeanor.

Michigan House Bill 5051 sets forth penalties for "lying."

Where an individual lies in an investigation related to a serious misdemeanor, the potential penalty is 93 days and/or $500. For misdemeanors punishable by more than 1 year, or felonies punishable by less than four years, the potential penalty is 1 year and or $2500. For felonies punishable by 4 years or more that are under investigation, the potential penalty would be 2 years and/or $5000.

The bills are now Public Acts 104 and 105.

Official statements provide "Public safety is a key priority in Michigan, and police officers need to be guaranteed factual information in criminal investigations ... Ensuring the truth of statements in criminal investigations is simply a common-sense step to providing the best criminal justice system possible."

Probable Cause Existed For Search Warrant Of Home And Car In Counterfeiting Case

Mon, 16 Apr 2012 11:03:08 -0600

A recent case evaluated whether the police executed a valid search of a suspect's home and car, and whether the evidence found should have been suppressed. In United States v. Carney, the defendant Carney was sentenced to 51 months after entering a guilty plea to charges of being a felon in possession of a firearm, making counterfeit money, and passing counterfeit money. The 6th Circuit Court of Appeals denied his motion to suppress, finding that probable cause existed for the warrant to search the man's apartment and car.

The affidavit supporting the search warrant covered "evidence that someone using the car in question tried to pass counterfeit bills of different denominations at different times, that the car and residence were Carney's, that the car was seen in front of the residence, and that Carney was identified as attempting to pass a counterfeit bill."

If you have been arrested for criminal activity, or have been subjected to a search, it is important to consult with an experienced Michigan criminal defense attorney immediately. When police conduct a search without a valid warrant, an experienced Michigan criminal defense lawyer can fight to suppress any evidence they collect and may be able to get charges reduced or dismissed.

Here, Carney argued on appeal that the police did not have probable cause, that the search warrant was constitutionally defective and that the search warrant was not supported by probable cause. The appellate court denied the appeal, noting:

"the search warrant issued in this case was supported by probable cause because the support affidavit contained enough facts to indicate a fair probability that evidence of a crime would be located in both the white Chevy SUV and the apartment. That is all that is required. (emphasis added)."

This rule has been used to find valid search warrants of individuals' homes where a suspected thief may have stolen property in their home, or a drug dealer may have evidence of drug activity in his or her home, or a suspected counterfeiter may have different bills in his or her home.

Trial Court Error In Arson Case Not Considered An Acquittal In Michigan v. Evans

Sun, 08 Apr 2012 12:03:39 -0600

A recent 6th Circuit Court of Appeals case evaluated what an "acquittal" means for purposes of double jeopardy. Double jeopardy is the legal concept that means you can't be tried twice on the same charges. This means a prosecutor is forbidden from being a second lawsuit against a defendant after he or she has been convicted or acquitted of a particular charge.

In Michigan v. Evans, the defendant Lamar Evans was accused of burning a vacant house pursuant to MCL 750.73, Michigan's arson statute, which provides:

"Any person who willfully of maliciously burns any building or other real property, or the contents thereof ... shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 10 years."

If you have been charged with arson or any other Michigan criminal offense, consulting with an experienced Michigan criminal defense law firm is important to protect your rights and begin preparing your defense.

At trial, the court erroneously told the prosecution that in order to prove Evans' guilt, it had to show that the burned house was not a dwelling. Because the prosecution failed to provide this evidence, the court granted a directed verdict for the defendant and entered an acquittal dismissing the case.

In Michigan, arson is defined as the deliberate burning of a house or building and the law distinguishes among:

• Arson involving houses;
• Arson involving "other real property"; and
• Arson involving personal property.

Despite the distinction, it is not necessary to show where the alleged crime involves "other real property" that the building was not a dwelling.

U.S. Supreme Court Extends Constitutional Right To Effective Assistance Of Counsel in Lafler v. Cooper

Tue, 03 Apr 2012 21:23:08 -0600

After considering two cases - one from Michigan and another from Missouri - the Supreme Court extended a defendant's right to effective assistance of counsel. In Missouri v. Frye, the Court determined that an individual's right to effective assistance of counsel extends to informal plea bargains between criminal defendants and prosecutors. Further, in Lafler v. Cooper the Court determined that a defendant has a claim for ineffective assistance of counsel where he or she can show with "a reasonable probability" that a plea offer may have been accepted by a judge, but a lawyer's bad advice caused the defendant to reject a plea bargain and stand trial.

If you have been changed with any criminal offense, it is important to consult with an experienced criminal defense attorney in Michigan to ensure your rights are protected.

In the court's opinion, Justice Kennedy provided "that a defense counsel as a general rule has a duty to communicate to the client formal prosecution offers of a plea deal on terms and conditions that may be favorable to the accused."

To show harm when a plea offer has lapsed or been rejected because of a lawyer's bad performance, Justice Kennedy stated "defendants must show they probably would have accepted the more favorable plea offer if they had received effective legal advice and that the plea deal would have been accepted in court."

In Lafler v. Cooper, the defendant Anthony Cooper decided not to accept a plea deal that would send him to jail for 4 to 7 years for shooting a woman four times. His attorney advised him against accepting the deal because the accused shot the woman below the waist and missed her head. However, at trial Cooper was convicted of assault with intent to murder and received a sentence of up to 30 years in jail.

In Missouri v. Frye, the defendant Frye was charged with driving without a license. Although the prosecutor offered two separate plea deals, Frye's lawyer failed to tell him about the offers.

Supreme Court To Determine Whether Sentencing 14-year-olds To Life Without Possibility Of Parole Is Cruel And Unusual Punishment

Fri, 23 Mar 2012 11:13:46 -0600

This past week two cases took center stage at the Supreme Court on the issue of what constitutes "cruel and unusual punishment" and whether it's a violation of the 8th Amendment to sentence 14-year-olds convicted of murder to life in prison without the possibility of parole. News reports indicate that Justice Kennedy, who is likely the swing vote, is looking for legal grounds to invalidate a law that mandates a life sentence without parole for some young offenders.

If your minor aged child is under investigation for or has been arrested for any crime, it is imperative to contact an aggressive Michigan criminal defense lawyer to immediately begin preparing a defense and protect your child's future.

The cases before the Supreme Court involve two separate incidents of 14-year-old boys convicted of murder. In Jackson v. Hobbs, the 14-year-old Jackson was involved in a robbery of a video store when another teenager shot and killed the store clerk. Although Jackson did not pull the trigger, he was given a mandatory life sentence without the possibility of parole based on his involvement. In Miller v. Alabama, Miller, who was 14, and his 16-year-old friend set a neighbor's house on fire following a dispute. The neighbor died and the 16-year-old blamed Miller. Miller was sentenced to life in prison.

The Supreme Court will now determine if the same reasoning that determined that the death penalty for those age 18 years and younger is cruel and unusual punishment applies to life without parole sentences to 14-year-olds convicted of murder.

While acknowledging the need for serious punishment, a representative of one of the boys pointed out "young offenders are less culpable than adults for the crimes they commit. Studies have shown that biologically and psychologically, teens are more susceptible to peer pressure and more prone to impulsive and reckless behavior. Studies show that their judgment and character are not yet fully formed."

False Arrest Of Woman On Identity Theft Charges Leads To Lawsuit

Fri, 16 Mar 2012 13:39:34 -0600

A recent case shows the importance of having a top Michigan criminal defense attorney representing you and how overzealous law enforcement can turn your life upside down.

In Milligan v. United States, a woman was falsely arrested as part of a 24-state round up of fugitives. Nearly 11, 000 people were arrested, including an innocent woman, Paula Milligan. A data-entry clerk responsible for entering the warrant information for processing allowed the database to auto-fill all of the entries, and in the process identified the wrong woman. The woman arrested had had her name in the system solely based on a parking ticket.

If you have been arrested it is important to contact an aggressive Michigan criminal defense attorney immediately to protect your rights and investigate the charges against you. Fighting back right away can help protect your reputation.

Here, based on the inaccurate information in the warrant, a police officer arrived at Milligan's house and arrested her for forgery and four counts of identity theft. As part of the operation, the marshalls had contacted local media outlets to ride along and report on the operation, agreeing to air the report only after the operation was over. The day after the charges were dropped against Milligan, the news story aired showing footage of her arrest. The story was also on its website.

Based on police error, Milligan filed several lawsuits against the United States and the U.S. Marshals Service, including false arrest, false imprisonment and assault and battery.

Unfortunately far too often in an effort to crack down on crime, law enforcement over steps its bounds and makes mistakes. The rights given to criminal defendants under the Constitution extend to all U.S. citizens. These include such fundamental rights as the right to counsel, the right to due process, the right to a jury trial, the privilege against self-incrimination, and the right to be free from unreasonable searches and seizures. Not only does the constitution guarantee you certain rights but also law provides that you cannot be held in custody without probable cause.

Law Banning Sex Offenders From Social Networking Sites Struck Down In Doe v. Jindahl

Wed, 07 Mar 2012 12:19:38 -0600

The Louisiana District Court has just struck down a law banning registered sex offenders from accessing facebook and other social-networking sites. In John Doe v. Bobby Jindahl the Louisiana District Court threw out the newly enacted state law as unreasonable and unconstitutional. The court pointed to the statute's use of the definition "chat room" as too broad - noting that it could be used to include the "court's own federal website."

The lawsuit was filed on behalf of two registered sex offenders challenging a Louisiana law against the "unlawful use or access of social media." Pursuant to this law, registered sex offenders who were previously convicted of crimes involving minors or juveniles are prohibited from "using or accessing of social networking websites, chat rooms, and peer-to-peer networks." If you are under investigation for or have been charged with any sex crime, consulting with a knowledgeable Michigan criminal defense lawyer is important to protect your rights and determine your next steps.

In the decision Chief Judge Brian Jackson wrote, "Although the Act is intended to promote the legitimate and compelling state interest of protecting minors from internet predators, the near total ban on internet access imposed by the Act unreasonable restricts many ordinary activities that have become important to everyday life in today's world...The sweeping restrictions on the use of internet for purposes completely unrelated to the activities sought to be banned by the Act imposed severe and unwarranted restraints on constitutionally protected speech. More focused restrictions that are narrowly tailored to address the specific conduct sought to be proscribed should be pursued."

Currently, Michigan does not have a law prohibiting sex offenders from social networking sites. However, in 2009 legislation - House Bill No. 5282 - was introduced seeking to criminalize the use of social network by those convicted of a sex crime against a child. Under this law it would be it a five-year felony for a person convicted of a crime against a minor, or a person the convicted offender thought was a minor, to become involved in or use social networking sites that allow minors to have accounts or access.

Supreme Court Determines Inmate Miranda Rights Not Violated In Lenawee County Sex Abuse Case

Fri, 24 Feb 2012 11:17:54 -0600

The U.S. Supreme Court has just ruled that an inmate's Miranda rights were not violated by Lenawee County sheriff's deputies when they questioned him in jail about a sex abuse case. In Howes v. Fields the Court evaluated whether an inmate must be read his Miranda rights before questioning the prisoner about other cases.

Here, Fields was in a Lenawee County jail for an unrelated misdemeanor offense. While in jail, the deputies decided to ask Fields questions about another cases involved the sexual abuse of a mentally disable teen. Fields confessed to the crime following seven hours of questioning.

The constitution affects every aspect of the criminal law process and guarantees several rights and privileges. Based on a 1966 case, Miranda v. Arizona, police are required to read suspects in custody a "Miranda warning" or their "Miranda rights." A Miranda warning is given to ensure that those in custody are informed about and understand their fifth amendments right against self-incrimination and their right to obtain a lawyer. If you are under investigation for a crime, or have been arrested it is crucial to speak to an aggressive Michigan criminal defense attorney immediately to ensure your constitutional rights are protected and begin preparing your defense.

Here, the Sixth Circuit Court of Appeals determined that the guards violated Fields' rights and that a Miranda warning was required. Taking prisoners outside the general population and questioning them about conduct that occurred outside of jail creates a setting where a Miranda warning was required. The 6th Circuit determined that police are required to read inmates their Miranda rights anytime they are isolated from other inmates and may be likely to incriminate themselves.

Court Determines Plastic Pitcher Is A Dangerous Weapon In United State v. Tolbert, Jr.

Fri, 17 Feb 2012 13:44:43 -0600

In a recent weapons possession case, the 6th Circuit Court of Appeals considered what type of objects may be considered "dangerous weapons" pursuant to federal law. In United States v. Tolbert, Jr., John Tolbert Jr. had just finished his trial for intentional possession of a firearm. When he was told to place his hands behind his back so that law enforcement could cuff them, he grabbed and plastic water pitcher and hit a deputy in the head with it. Although the officer wasn't seriously hurt and didn't need medical attention, the district court determined that the pitcher constituted a "dangerous weapon." Based on the court's characterization of this as a dangerous weapon, the court then increased Tolbert's sentence, applying a "4-level enhancement" stating that any object used "with the intent to commit bodily injury" may be considered a dangerous weapon.

Michigan weapons charges are serious. If you are found to have used a dangerous weapon in connection with committing a crime, the penalties for the underlying charge may increase. It is important to consult with an aggressive Michigan weapons charge attorney immediately to begin preparing your defense. As this case illustrates, courts may find nearly any object is a "dangerous object" depending on how it is used and the person's intent in using it.

Here the both the lower court and the Sixth Circuit Court of Appeals, which includes Michigan, determined that even a plastic water pitcher placed on the courtroom table can be a "dangerous weapon" under certain circumstances. The pitcher was a standard water pitcher, about 10 inches tall, with a 6-inch handle and a 12-inch circumference. It weighed a mere ½ pound to 1 pound when empty. The appellate court stated, "It is reasonable to infer...that such a water pitcher swung with sufficient force and proper aim, was capable of inflicting serious harm." The court cited additional dangerous weapons case law that supports the notion that "Almost any object can be a dangerous weapon depending on how it is wielded in the circumstances." Other items found to be dangerous include "walking sticks, leather straps, rakes, tennis shoes, rubber boots, dogs, rings, concrete curbs, clothes irons, and stink bombs."

Bank Fraud Jury Verdict Overturned Based On A Lack Of Evidence

Thu, 09 Feb 2012 16:08:07 -0600

White-collar crimes can be some of the most complex and technical cases. In a recent Sixth Circuit case, United States v. Parkes, a businessman - Timothy Parkes - was convicted of 10 counts of bank fraud concerning the making of alleged fraudulent entries in the books of a small bank. However on appeal, the 6th circuit - which includes Michigan - reversed this white-collar crime jury verdict based on a lack of evidence.

If you have are under investigation for or have been charged with a white-collar crime such as fraud or embezzlement, it is important to speak with an experienced fraud lawyer in Michigan to immediately begin preparing your defense. Fraud charges often require in-depth knowledge of complex financial matters in order to investigate and defend. Consulting with a knowledgeable Michigan white-collar crimes defense attorney is important to ensure you get the best defense possible.

In Parkes, the prosecution claimed that the businessman had worked together with the bank president to create fraudulent entries meant to disguise troubled loans. Parkes was indicted for and convicted of ten counts of bank fraud pursuant to 18 U.S.C. Sec. 1344. At trial, in order to prove a violation of bank fraud the prosecution must show beyond a reasonable doubt that (1) the defendant knowingly executed or attempted to execute a scheme to defraud a financial institution; (2) that the defendant did so with the intent to defraud; and (3) that the financial institution was insured by the FDIC.

Parkes alleged on appeal that the no evidence existed at trial that he knowingly executed a scheme to defraud, intended to defraud the bank or even participated in the creation of the bank entries. The Sixth Circuit agreed. The appellate court determined that the lower court improperly excluded a number of key pieces of defense evidence, including the fact that the bank president on his own had made identical fraudulent entries.

Child Pornography Sentence Vacated

Fri, 03 Feb 2012 13:57:12 -0600

The sixth circuit has vacated a recent sentence in an Ohio sex crimes case concerning child pornography. In United States of America v. Inman the Court of Appeals for the sixth circuit, which includes Michigan, reviewed the sentence of a man who pleaded guilty to possession of child pornography, 18 U.S.C. 2252(a)(4)(B).

Being under investigation or charged with any sex crime is serious and may significantly affect your future and freedom. Here, where the alleged crime is child pornography, an individual may face jail time and having to place his or her name on the Michigan sex crimes registry.

In United States v. Inman, the Sixth Circuit Court of Appeals reviewed the district court's sentencing of Brandon Inman after he admitted to possession of a computer thumb drive containing images of minors engaged in sexually explicit conduct. Although both parties in this case requested Inman be given a ten-year term of supervised release, the court ordered a lifetime term of supervised release with standard and special measures, including drug testing. The court failed to provide any reasons for the term of the release or the imposition of the special measures.

On appeal, the 6th circuit reviewed whether it was plain error to impose such a sentence with no rationale. USC Sec.3553(a) requires that courts consider numerous factors in determining the length of supervised release imposed, including the history and characteristics of a defendant and the need for the sentence.

To determine whether the lower court erred in imposing the sentence, the court of appeals evaluated whether the decision was a clear and obvious error affecting Inman's substantial rights and whether the decision affected the "fairness, integrity, or public reputation of his judicial proceedings." The court noted, "the record does not demonstrate that the district court considered any of the pertinent Sec. 3553 factors" and also failed to explain many of the conditions imposed on the supervised release. As a result, the court of appeals determined that the order must be vacated.

Supreme Court Unanimously Determines Warrant Necessary For GPS Tracking In United States v. Jones

Tue, 24 Jan 2012 15:04:47 -0600

In a victory for individuals over the often oppressive tactics of law enforcement, a unanimous United Supreme Court determined that police violated the constitution when they placed a Global Positioning System (GPS) tracker on a suspect's vehicle without a warrant. In United States v. Jones, the justices determined that placing the tracking device on the car violated the Fourth Amendment's protection of "persons, houses, papers and effects, against unreasonable searches and seizures." The court determined that this protection also includes private property such as automobiles.

Writing for the majority, Justice Antonin Scalia reasoned, "The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted." Although the court had some differences in reasoning, all unanimously agreed that the police actions went too far and violated the suspect's rights.

The constitution impacts nearly every aspect of the criminal process - from investigation, to charges, arrest and trial. Where police or other law enforcement officials overstep their bounds, their conduct that may serve as a defense to criminal charges. If you believe your rights may have been violated, it is important to speak to an experienced criminal lawyer in Michigan to protect your rights and begin preparing your defense.

Here, the government claimed that the Federal Bureau of Investigation agents use GPS tracking devices in thousands of cases each year and argued that using the tiny devices is too trivial to constitute a violation of a property right. However, the Court strongly disagreed, noting that even a small trespass if committed in "an attempt to find something or to obtain information" constitutes a "search" under the Fourth Amendment. As stated by Justice Sotomayor, "In the digital age I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every website they have visited in the last week, or month, or year."

Supreme Court Misses Opportunity To Make It More Difficult To Introduce Eyewitness Testimony In Perry v. New Hampshire

Thu, 12 Jan 2012 14:49:48 -0600

The United States Supreme Court has just passed on an opportunity to ensure greater fairness is criminal trials. In Perry v. New Hampshire, the Supreme Court justices evaluated the circumstances surrounding eyewitness testimony and when it may be introduced at testimony. In an 8 to 1 decision, the Court concluded that unless evidence exists that police have "manipulated" the circumstances, judges cannot throw out eyewitness testimony on their own. However Justice Sonia Sotomayor, the only dissenter, asserts this is "backwards." The primary goal is to "assure a fair trial" and "[w]hether the police have created suggestive circumstances intentionally or inadvertently ...it is no more or less likely to misidentify the perpetrator." Eyewitness testimony is just as powerful in persuading a jury regardless of the circumstances.

As a criminal defense attorney in Michigan, I agree. When an individual faces the possibility of arrest, charges and a possible conviction in a crime such as theft or robbery, a drug offense or violent crime, his or her fate may depend in part on eye witness testimony. When that testimony is flawed, the possibility for great injustice exists. Under any circumstance, if you are facing criminal charges in Michigan, it is crucial to speak with an aggressive Michigan criminal defense lawyer immediately to begin preparing your defense and challenge the evidence against you - including any eye witness statements.

Perry is a criminal law case out of New Hampshire involving car robberies. In Perry, police officers were notified about a man breaking into cars behind an apartment building. A woman gave a vague description of a potential suspect. However, after seeing Perry standing next to a police officer she then identified him as the suspect. Based on her identification, Perry was convicted. Perry argued that his standing next to the police officer unduly influenced the woman's identification. The New Hampshire Supreme Court determined that because the police did not create the suggestive circumstance, the eyewitness identification testimony was allowed. The U.S. Supreme Court has just affirmed this decision.