Articles Posted in Criminal Defense Overview

The preliminary examination (prelim) is a hearing in front of a District Court Judge to determine if there is probable cause to believe that a crime occurred within the jurisdiction of the District Court, and probable cause to believe that the defendant committed that offense. The defendant has 14 days from their arrest to hold their prelim.  This timeframe can be extended for good cause by either the prosecutor or the defendant.  Today, we discuss whether or not a prelim should be held, review the benefits and pitfalls of the exam and provide a tutorial of the subject matter from top criminal minds within the state of Michigan. 68916_law_education_series_2-300x225

Scott Grabel is the founder of Grabel and Associates in Lansing, Michigan, and has developed a law firm that is known as the top criminal defense firm in the state of Michigan.  When asked about the prelim, Grabel was quoted as saying, “The prelim is the criminal equivalent of the deposition.  It gives the criminal defense attorney the opportunity to test the merits of the case and see the strengths and weaknesses of the witnesses.  Recently, we won a prelim in Ingham County which garnered a lot of attention, but the goal at the prelim is not always to win, it is a low threshold for the prosecutor to have their case bound over, instead, you should be looking to find weaknesses in the state’s case that can help your client obtain a favorable plea or win the case at trial.”

Matthew McManus runs Ann Arbor Legal PLLC in Ann Arbor, Michigan, and his firm has become one of the top criminal firms in our state.  When asked about the prelim, McManus stated, “Knowing your audience is essential.  What may work in Washtenaw County may not be the same strategy to employ in Shiawassee County.  Knowledge of your District and Circuit Court is what you should know when approaching this subject.  If your client is not incarcerated, it’s best to waive the 14-day timeframe because it will give the attorney more time to study the matter.  This is an issue we usually address at the arraignment.  It is crucial to understand that in counties such as Lapeer or Macomb the prosecutor may want to run the prelim to preserve testimony.  The prelim is not a one-size-fits-all proposition.”

In the state of Michigan, the concept of an affirmative defense is one that places an argument in reverse, but it is also a theory that can lead to the preservation of one’s freedom. Often with an affirmative defense, one’s medical condition can play a vital role in the arsenal of the diligent defense attorney and the disease of “Fetal Alcohol Syndrome” (FAS) has become a hidden issue in the field of criminal law. iStock_000011602905_Large-2-300x200

When we look at FAS, we see a situation where an individual has an uphill battle in understanding right from wrong and one’s quality of life is compromised. FAS is a condition in a child that results from alcohol exposure during the mother’s pregnancy. The disease causes brain damage, and growth problems and defects are generally not reversible and often appears more magnificently as the child grows older. FAS is something that affects many young defendants in the criminal justice system across the state of Michigan. To gain more insight on the subject, we discussed the topic with criminal lawyers in our state that have utilized affirmative defenses based upon the issue.

Scott Grabel is the founder of Grabel and Associates and runs a firm that has developed a reputation as the top criminal defense team in the state. When asked about FAS, Grabel stated, “Generally, this is an overlooked subject, and that is tragic on many levels. To begin, when dealing with specific intent crimes, an intelligent lawyer can display that the defendant did not have the desire to commit the crime, for other crimes such as CSC, the defense becomes more problematic and as an attorney, your job should be two-fold: The first would be to try to obtain a dismissal or an HYTA outcome and in the alternative, create an appealable right for your client.”

The mistrial is a concept that has evolved dramatically during the last year within the state of Michigan. With the addition of Michigan Court Rule (MCR) 6.417, we find a new theory of law that is ripe to present appellate issues for the foreseeable future. 68916_law_education_series_2-300x225

According to MCR 6.417, we find that “Before ordering a mistrial, the court must, on the record, give each defendant and the prosecutor an opportunity to comment on the propriety of the order, to state whether that party consents, and to suggest alternatives.”

Scott Grabel is the owner and operator of Grabel and Associates and has built a firm that is arguably the strongest in the state of Michigan. When asked about the new court rule, Grabel was quoted as saying, “The new rule is really based on the Federal Rules of Criminal Procedure (Rule 26.3) and came to light in consideration in the case of “People v. Howard” (docket 153651). We learned that many judges did not follow procedure when ordering a mistrial and with this new court rule, the concept of Double Jeopardy can easily be compromised if the sitting judge is not up to date on the new order.”

A common sentiment that is often uttered by the criminal defendant is “Get me probation”. While that concept seems to have benefits on its face, the practicality of probation is far more difficult than what we one may initially think of the subject matter. Today, we will explore the subject with a textbook definition and hopefully provide an understanding of the term. iStock_000000182036XSmall-300x224

When we look for a definition of probation, “Black’s Law Dictionary” defines the topic as a period of supervision over an offender, ordered by the court instead of serving time in prison. In some jurisdictions, the term probation applies only to community sentences (alternatives to incarceration), such as suspended sentences while in others, probation also includes supervision of those conditionally released from prison on parole. An understanding of the concept in Michigan presents a different view the norm because in our state we combine the above-stated definition into a very unique blend. To understand this in greater detail, we have sought commentary from leaders in the criminal law sector to obtain their perspective.

Scott Grabel is the founder of Grabel and Associates and has developed a law firm that is known as the strongest within the state of Michigan. When asked about probation, Grabel stated, “What the defendant has to understand is that probation presents them a great opportunity at freedom. Sometimes, in exchange for incarceration, a term of probation could be the prosecutor banking on the fact that the defendant will not meet their obligations and the punishment forthcoming could be worse than what was initially offered. As lawyers, it is our obligation to train our clients on how to behave at this level.”

One concept that seems to be lost among the criminal law field is the power that the polygraph examination (AKA lie detector) can have on the court. While the law states that the polygraph is not admissible in court, many attorneys seem to lose sight of the power that a passed test can have on the outcome of a criminal trial. For years, we have understood that the polygraph is inadmissible at trial but there are other aspects of the litigation process that allow the test to play a vital role in the outcome of a contested criminal matter. With that stated, the purpose of this article is to determine if the alleged victim should be subjected to a polygraph? iStock_000025943007_XXXLarge-2-300x200

When we look at the Michigan Legislature, we see that MCL 776.21 (5) allows for a criminal defendant a statutory right to have a polygraph when charged with a CSC. What many fail to realize is that MCL 776.21 (2) explains that a law enforcement officer cannot offer a polygraph to the alleged victim. While the law presents information stating the lie detector does not play a role in the questioning of the complaining witness, we learn that there are exceptions to the general rule.

Scott Grabel is the founder of Grabel and Associates and has built a firm that is known as the strongest criminal defense firm in the state of Michigan. When asked about the polygraph of the complaining witness Grabel stated, “This is the point of criminal law when you are definitely in the deep end of the pool. The law is clear that the officer cannot offer a lie detector to the complaining witness but we often see that the prosecutor will not inform the party that they can take a polygraph. If you are truly a victim of a crime, why would you not take a polygraph to prove your case? We still live under the mantra that someone is deemed innocent until proven guilty and that gets lost on officers of the court at times.”

One issue that most criminal lawyers seem to overlook on a regular basis is the transferred intent doctrine. When we look at Black’s Law Dictionary, we find a definition that states when the intention to harm one individual inadvertently causes a second person to be hurt instead, the perpetrator is still held responsible. To be held legally responsible under the law, usually, the court must demonstrate that the person has criminal intent, that is, that the person knew another would be harmed by his or her actions and wanted this harm to occur. We see that the transferred intent doctrine carries with it the requirement of specific intent but the legal definition and the practicality are very different. To learn more about this doctrine, we turned to leaders in the criminal law firm for commentary. criminal-justice-attorney-300x225

Scott Grabel is the founder of Grabel and Associates and has developed a reputation for having the top criminal defense firm in the state of Michigan. When asked about the transferred intent doctrine, Grabel was quoted as saying, “Just because someone does not mean to hurt someone does not mean they cannot be tried for a crime. This is one of the most overlooked concepts in the field of criminal law. In actuality, if the defendant meant to hurt one person and harmed another they could be charged with both an inchoate and a principal crime. The transferred intent doctrine was meant to broaden criminal prosecutions.”

John Granger runs The Granger Law Office in Tuscon, Arizona. Granger is highly experienced with this legal concept and stated, “The transferred intent doctrine can add to the confusion and misunderstanding the client experiences with his/her case. it is important to have a firm grasp of the applications and complexities of the doctrine to be able to explore all possible defenses and to better explain why the charges were brought against the client.”

One aspect of criminal defense that is often forgotten about is the value of a strong sentencing memorandum. The sentencing memo gives the attorney an opportunity to have one last chance to display to the court why their client should be given the best possible sentence and sadly, it is a tool that is frequently overlooked. iStock_000013714975_Double-2-300x217

In Michigan, the sentencing memo carries more weight than in most other states. In the criminal defense sect of our state, the memo can allow the attorney to speak from the heart and give the court something to consider aside from the facts of the case. To discuss this issue in greater detail, we spoke to leaders in the criminal defense community to gain further insight into the sentencing memo.

Scott Grabel is the founder of Grabel and Associates and has built a law firm that has the reputation as the strongest criminal defense team in the state of Michigan. When asked about the sentencing memo, Grabel stated, “Far too often the attorney is too lazy to write the memo. To generate a strong memo, there are a number of aspects that have to be addressed such as the defendant’s mental health history and their education. Sometimes, the littlest fact about the history of the defendant could be the thing that keeps them out of incarceration and it is our job to present the client to the court in the best possible light.”

Living in the age of social media, we are seeing situations where the best way to extract revenge seems to be posting messages or going through the e-mails of others without their permission. While this may seem like a quick form of revenge for the predators of these messages, in the state of Michigan the consequences can lead to prison time. iStock_000013860209_Full-2-300x200

According to Michigan Compiled Laws (MCL) 750.411s, “If a person posts a message through any medium of communication without the victim’s consent with the intent of making the individual feel terrorized, frightened, intimidated, threatened, harassed or molested” the defendant could face a 2-year felony, a fine of $5,000 or both and these penalties can be enhanced to a 5-year felony, a fine of $10,000 or a combination thereof. To gather more insight on how these laws are applied in our state we gathered commentary from top criminal law defense attorneys’ throughout the state of Michigan.

Scott Grabel is the founder of Grabel and Associates and has built a reputation as having the top criminal defense firm in the state of Michigan. When asked about the statute in question, Grabel stated, “We see this applied a great deal in criminal defense law when someone goes through the phone of another or distributes e-mails to the authorities. Quite often, this occurs during divorce proceedings when one spouse is charged with a crime. The other spouse will go through the phone and provide harmful information to the police and/or the prosecution. What the distributor of the information fails to realize is that they just committed a felony in the process.”

When somebody is faced with a serious criminal charge it is the obligation of defense counsel to explore all options and defenses that may be available. In the state of Michigan, the idea of an affirmative defense can often be frowned upon by the trier of fact unless there is a medical condition attached to the argument. One such condition that has flown under the radar for some time is Kleine-Levin syndrome (KLS) which is affectionately known as “Sleeping Beauty syndrome” in the field of medicine. iStock_000003118029_Large-2-300x200

When asked to describe what exactly is KLS or “Sleeping Beauty syndrome” we see an unusual circumstance that is often overlooked by the medical profession. KLS is defined as a rare sleep disorder that is characterized by persistent episodic hypersomnia and a wide array of cognitive changes that can vastly affect the mood of the individual with the disease. To discuss how this issue is addressed in the field of criminal law we spoke to several experienced lawyers that are at the top of their sector to gather their insight.

Scott Grabel is the founder of Grabel and Associates and has developed a law firm that is known as the top criminal defense team throughout the state of Michigan. When asked about Sleeping Beauty syndrome, Grabel was quoted as saying, “It’s truly an outside of the box defense and far too often the condition goes undiagnosed. A patient can have recurrent episodes for more than a decade and then symptoms may not resurface for another decade. When we view this from a criminal defense perspective, we find that a loss of one’s emotions can negate the intent for specific intent crime and even serve as a defense to a strict liability offense. When you view the topic globally, we see a scenario where someone truly has no control over their actions and with that being stated, how can one be prosecuted?”

In the field of criminal defense, there are many hard-fought battles that can end in a dismissal or an advantageous plea bargain for the defendant if the attorney is at the top of their game. Regardless of the work of the attorney, some accountability falls upon the defendant themselves and this is what we often call “The Danger Zone.” The “Danger Zone” is the time period between the plea and the sentence and the behavior of the defendant during that time period can be the difference between incarceration and freedom. To discuss the issue in greater detail, we spoke to leaders in the criminal defense sector to learn more about the issue. criminal-justice-attorney-300x225

Scott Grabel is the founder of Grabel and Associates and has developed the top criminal defense firm in the state of Michigan. When asked about the “Danger Zone”, Grabel stated, “Michigan Court Rule (MCR) 6.310 (B)(3) is very clear that if the defendant commits misconduct between the plea and sentencing the deal made could fall apart. Surprisingly, and what many lawyers do not even realize is that MCR 6.310 (B)(3) can even trump a Killebrew or a Cobbs Agreement so the behavior of the defendant is crucial to their own survival in the criminal justice system.”

The court rule states, “Except as allowed by the trial court for good cause, a defendant is not entitled to withdraw a plea under subsection (2)(a) or (2)(b) if the defendant commits misconduct after the plea is accepted but before sentencing. For purposes of this rule, misconduct is defined to include, but is not limited to: absconding or failing to appear for sentencing, violating terms of conditions on bond or the terms of any sentencing or plea agreement, or otherwise failing to comply with an order of the court pending sentencing.”