35 Years as a Lawyer

35 years ago today, I was Motioned in by Ron Bretz to become a member of the Michigan State Bar. I came to law school in Lansing MI (Cooley) with one purpose. To leave as a criminal defense attorney. If ever asked, I have often said I am living the ultimate “hippy” dream. I get paid to hold the government accountable and to fight for the Constitution.

I have dedicated my entire career to indigent defense (along with also representing parents and children in abuse and neglect cases) and as an elected board member of the Criminal Defense Attorneys of MI for over 2 decades, I have had a direct hand in reformation of the indigent defense system. Our crown jewel contributing to the creation of and having critical oversight of the Michigan Indigent Defense Commission. Lawyers have resources as do our clients. Best regardless of charge, anyone accused of a crime has a lawyer at a bail hearing. As many will be enjoying a well earned time off for Memorial Day weekend, I will be at a courthouse (Sat) arraigning people countywide, who were arrested. I cannot not think of a better thing to do as we honor men and women who made the ultimate sacrifice to our Country.

It has been a gift of the Creator to have had 1000s of clients on my public defense docket, along with many who paid for my services. I have never distinguished delivery of defense between those assigned and those paying. All get zealous advocacy with a holistic approach. The latter being that we will, together, explore the underlying causes/contributions of the behavior and develop strategies to address them. My personal journey of recovery is implemented but not imposed. Each client I have served is a human regardless of what they have been charged with.

I am so grateful that I have been entrusted with the lives of many people. The reviews that have been posted on my law office pages are reflective of that trust.

I have been blessed to meet some of the best colleagues in the world. Some are now sitting on benches throughout this great state. My life is better because of these folks

These are trying times for lawyers. There is regrettable action afoot to undermine the Constitution and the Rule of Law-the cornerstones of our democracy. Each day, I do a self check and ask myself, do I still have the fight in me. Each day, a resounding yes.

Creator, thank you for these 35 years as an attorney . . .

The Lawyers Oath

Due Process Prevails: Case Dismissed After 911 Evidence Not Preserved

Today in a courtroom in Macomb County, the 5th Amendment right to due process of law prevailed. The issue was rather simple and frankly one we do not see as much in the modern era of technology. I filed a Motion to Dismiss a case on the grounds that 911 recordings were not preserve. The 911 recording would have shown that my client was the caller and the so called “victim” (I do not use that word, I use ‘complainant) was the aggressor. On the body camera, which remarkably was preserved, my client is seen telling the police that the complainant was the aggressor.

The prosecutor put the detective in charge on the stand. He agreed that preserving evidence was essential in cases and that 911 evidence is the type of evidence that must be preserved, He tried to flimsily state that the 911 recordings are destroyed unless demanded after 90 days. I said flimsily because he was not the proper witness on evidence preservation and the policies of the Macomb County Sheriff Dept on the topic. So the judge struck that line of testimony My judge was a former defense attorney and knows that evidence flows in at different times. I made sure to argue in closing that preservation of evidence does not have some magical timeline that relieves the government of its burden to preserve evidence.

The Judge was seriously troubled that the evidence, which the prosecution conceded was exculpatory, was not preserved. She agreed with my analysis that Federal Supreme Court law classifies that evidence as the type that must be preserved. She also agreed that it would be impossible for the jury to assess the credibility of the complainant without this evidence. That is one of the prongs necessary to grant a dismissal.

Bottom line the Constitution was alive and well in a Macomb County courtroom today.

Knowing Whom You Really Represent

I take a lot of pride in representing some of the most marginalized people in society. One area of specialty has been dealing with the truly mentally ill (not what segments of our society like to label to rationalize the actions they take) and developmentally disabled folks. Autism falls into the latter To that extent, I have had my share of clients who fall on the spectrum and do not get that diagnosis until they are adults. The Detroit Free Press just did an article yesterday on the subject https://www.freep.com/story/news/education/2023/05/08/adult-autism-diagnosis-michigan/70169698007/

One of the God sends of the diagnosis is, for the first time, is getting an answer to things. And also a clear path of how to cope. 

From my first meeting with A.H. I knew I was dealing with an autistic adult. His mannerisms, lack of eye contact, clenching of his hands, etc. He was charged with domestic violence and the so-called victim was a “family” member. That family member preyed upon A.H.’s idiosyncrasies and pushed him too far. A.H. reacted with some assaultive behavior. Not atypical of people on the spectrum. As an aside, A.H. had some other interactions with the law and frankly, his previous lawyers should have known they were dealing with someone who was “off.” 

I informed A.H. that he needed to be tested for autism. Many doctors will not test adults because the syndrome is best detected in childhood. But as the above Freep article provides, that is changing.

Dealing with A.H., was the product of my trying to educate myself on autism as it intersects the criminal law. I read lots of journal articles in the field where law and psychology intersect. I learned, for example, autistic individuals when interviewed by the police, will agree with the accusations and even make statements in support. It is called accommodation. They want to please their inquirer and not upset him or her. Hence rendering a false confession. Some studies show that they process information differently and will adapt in a way to compensate 

There can be a large degree of substance abuse as autistic individuals get older. It is to deal with the discomfort of being in society or social settings. So a DUI charge or possession is not unheard of. 

In A.H.’s case, the diagnosis came back as suspected autism. Based on that, after a lengthy email outlining how autism would explain my client’s behavior and his statements, I was able to prevail upon the city attorney to reduce the charge to disturbing the peace with a delayed sentence. Upon completion of the period, the case would be dismissed. The judge that took the plea, referred my client to the wellness and behavior court. A voluntary program, which allowed treatment monitoring and medication compliance. Many autistic individuals take medications to deal with the mood disorders and anxieties that come with the disorder.

We returned to court today. I was not surprised that the evaluator was able to find criteria to have my client be placed in this program. The difficulty is that autism, while it may have symptoms that appear to be akin to mental health issues, it is not a mental illness under the Michigan Mental Health Code. So I advised the judge that it was basically a non-starter for us to put him in their program because he does not have a mental illness. Trust me, I wish it was. It would allow me to have a statutory defense for my cases. I had a developmentally disabled individual go to prison because DD is not in the Code and I could not even bring before the jury that my client processes information differently than others. Getting back to A.H., he consented to the program. Of course, he did, because he is an accommodator. A.H. is also able to work a job (many DDs and autistic people do. Autistic individuals tend to work alone and many employers make accommodations for them. A. H. is intelligent and an asset to his employer) and told the court he was anguished when he had to leave work to deal with probation or go to testing while the case was pending. It pended, in part, for a long time because we had to find the right assessor to diagnose his condition 

The outcome was awesome. A.H. came to court and, sadly, his autism was on full display. He had to excuse himself from the court because of the anxiety We got through it. The judge, probation and I met separately. She specifically made of finding he was of no harm to himself or others She ultimately decided he was treated in the community and did not need this specialty court. Fines and costs, case over.

I had my first exposure to mentally ill individuals when I worked as a court reporter, doing MH hearings, back in Maryland in the mid 8os. I handled this docket as a young lawyer at the beginning of my career. I feel we, who are in the criminal justice system, have to be educated on these cases. When it comes to dealing with folks with developmental disabilities we have to know their characteristic, how they might impact a case, and explain behaviors that may look criminal in nature but are not. We must prevent the police, the prosecutor, or the bench from trying to characterize them as mental health cases, even if the temptation is there. This is not a place for us to cut corners to just get the case over with. Sorry, not sorry. Great outcomes can be achieved.

Today was another day, in many, where my mission on why I became a lawyer was validated. This is not about me. My client had an individualized outcome. He has gotten better treatment to address his issues and justice was served.