Articles Posted in Criminal Defense Overview

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.”

In the state of Michigan, one issue that has been on the rise in the field of criminal law is the probation violation. It has been established that when a client is guilty of a crime and the attorney gets obtains a sentence of probation, a major victory has been achieved but that is not where the story ends. The probation department in each jurisdiction handles violations in a very different manner. To learn more about probation violations, we turned to various criminal law experts in the field to provide their insight on the topic. iStock_000003965027_Large-2-300x200

Scott Grabel is the founder of Grabel and Associates and has developed the top criminal law firm in the state of Michigan. When asked about the probation violation (PV), Grabel stated, “The biggest flaw that you have in fighting a PV is the attorney that does not do their homework. When we look at a PV from a broad perspective, we have to look at the history of the defendant. Is this an isolated mistake or do we see a pattern of misconduct? The lawyer needs to have a relationship with the probation department and a thorough understanding of their client. The Probation Department in Lenawee is very different than the one in Jackson, Michigan. Spending the time to understand the issues facing the probation officer in each particular jurisdiction and having an opened dialogue with them can make the difference between freedom and incarceration.”

Matthew McManus is the Managing Member of Ann Arbor Legal in Ann Arbor, Michigan and is known as a top researcher of criminal legal issues. McManus stated, “What the lawyer needs to understand is that there are 3 phases of the criminal game. There are the prosecutor, the judge, and the probation department. Far too often the lawyer will forget about that third aspect and there are times when a lack of respect for the probation department could destroy the plea that you have so worked hard to obtain. As the attorney, we need to cooperate with the probation department and work with them in the same fashion that we do with the other aspects of the court system.”

Is it possible that wanting to learn more about your family tree and that of your ancestors could lead to the incarceration of loved ones? An April 27, 2018 article written by USA Today journalist Ashley May leads to that conclusion and has caught the attention of the criminal law community. To discuss the matter in greater detail, we have posed the question to members of the Michigan legal community to provide insight on the matter. iStock_000015311791_Full-2-300x200

Scott Grabel is the founder of Grabel and Associates and has developed a reputation as having the top criminal defense firm in the state of Michigan. When asked about the possibility that a DNA test could lead to a criminal conviction, Grabel was quoted as saying, “There are a lot of companies that offer this service. When we review the “Golden State Killer” case we see that Joseph James DeAngelo was arrested after DNA was found due to a match from a DNA website. It’s interesting because when one gets their DNA done on one of these sites there is a possibility they assume the risk of loved ones being subjected to new prosecutions.”

Matthew McManus is the Managing Member of Ann Arbor Legal in Ann Arbor, Michigan and has been heavily involved in criminal cases throughout the state. McManus stated, “We can view DNA sites in the same fashion as cell phone companies. With the cell phone industry, we see a situation where the company will generally attempt to not provide metadata that could be helpful to criminal prosecution. With DNA there is a strong possibility that someone could become a genetic informant and there would be no 4th Amendment protection afforded the defendant. The possibility of compromising one’s rights are present.”

The jailhouse call may be the most dangerous weapon to destroying an individual’s freedom. The call is one way that a criminal defendant can lose the protection of the attorney-client privilege and the United States Constitution. While the Michigan Rules of Professional Conduct will protect conversations between the attorney and their client and the 4th Amendment provides a reasonable expectation of privacy, any protection that the defendant has will be washed away once they make a call from jail. To discuss this issue in greater detail, we gathered commentary from several of the top criminal defense lawyers in the state of Michigan. iStock_000011602905_Large-2-300x200

Scott Grabel is the founder of Grabel and Associates and has developed a reputation as running the top criminal defense firm within the state. Grabel spoke of how a criminal defendant can destroy their own case by not understanding the danger of the jailhouse call. Grabel was quoted as saying, “The expectation of privacy is forfeited when someone is incarcerated. A simple conversation can turn into a party admission that could destroy someone’s defense. Many prosecutors lay in wait for the jailhouse call to gain an advantage should a case go to trial. It is important that the client understands this upon retention. There are far too many lawyers that become careless in this regard.”

Matthew McManus is a Managing Member of Ann Arbor Legal in Ann Arbor, Michigan and provided insight when he said, “The lawyer needs to make a face-to-face interaction with the client to protect the 4th Amendment Rights that the client has. In law school we were taught that the client loses these rights once the jailhouse doors are shut but the face-to-face meeting still provides a strong level of protection. Making the trip to the jail and/or prison and doing a contact visit is what is required to fulfill your obligation of diligence.”

When a defense attorney takes on a capital case, one piece of ammunition that can sway the court is the polygraph examination. While the polygraph examination is believed to not be admissible, there are misconceptions about how and when to use the test. Today, we will break apart the concept of the polygraph and explain how the exam can be the difference between incarceration or freedom.

We start with an understanding of what the polygraph is. If we were to look up the term in Black’s Law Dictionary, we learn that a polygraph is defined as: a machine designed to detect and record changes in physiological characteristics, such as a person’s pulse and breathing rates, used especially as a lie detector. In essence, the polygraph is a key to tell the prosecution if a defendant is telling the truth and while the test is not admissible as a general rule, there are major exceptions that a strong criminal defense attorney should be aware of. iStock_000021611488_Full-2-300x200

To begin, the polygraph may not be admissible at trial without a stipulation from all parties but it can be used by defense counsel to argue for a new trial and also can play a vital role at sentencing. More importantly, the polygraph can carry a great deal of leverage in the pretrial stages which can set the tone for the outcome of the case.

In the last 5 years, one crime that has become the center of controversy is that of Home Invasion. While the statute provides one aspect of the crime, the practicality of the statute has been up for debate in courtrooms across the state of Michigan. In reviewing the statute, we learn that Home Invasion in the First Degree states: 657836_forced_entry-300x224

A person who breaks and enters a dwelling with intent to commit a felony, larceny, or assault in the dwelling, a person who enters a dwelling without permission with intent to commit a felony, larceny, or assault in the dwelling, or a person who breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a felony, larceny, or assault is guilty of home invasion in the first degree if at any time while the person is entering, present in, or exiting the dwelling either of the following circumstances exists:

(a) The person is armed with a dangerous weapon.

For those that practice criminal law, our profession has taken a new turn. Allegations from decades ago are showing up at the courthouse steps as the media is encouraging people to bring claims that would be deemed stale under normal circumstances. With that being said, the lack of physical evidence or eye witness testimony seems to be an issue that is being overlooked in recent prosecutions. One way to fight the issue of a frivolous prosecution is “The Stanaway Motion.” 24259101_s-300x199

While most lawyers in the field are not even familiar with this seldom used motion, the presence of the Stanaway case has provided a lot of power to the aggressive criminal defense attorney (People v. Stanaway, 446 Mich. 643 [1994]). The Stanaway case presents the question of whether, and under what circumstances, records of a psychologist, a sexual assault counselor, a social worker, or a juvenile diversion officer regarding a witness should be discoverable by the accused in a criminal trial. This means medical records of one that was a minor at the time of the allegation can potentially come into admissibility with a successful Stanaway motion. This presents an issue that can sway a judge and/or jury upon reviewing the psychological makeup of the complaining witness.

Scott Grabel is the Founder of Grabel and Associates and is the leader in criminal defense within the state of Michigan. Grabel has won many cases with strong “Stanaway Motions” and uses them whenever the issue is relevant. When asked about the Stanaway motion, Grabel stated, “The attorney has to walk a fine line when crafting the motion. In essence, the court is faced with a major dilemma: Do they breach the privilege of the alleged victim to protect the constitutional rights of the defendant? There will either be a privilege that is pierced or a constitutional right that is violated. We have to remember that the material within those documents could provide a solid defense and can also prevent against frivolous claims. When someone has their freedom at risk, the attorney has an obligation to use all of their resources in an ethical manner. This motion allows the attorney to complete that task.”

When people talk about the arraignment, there is a misconception that a defendant does not need an attorney to be at this stage of the proceedings. While the arraignment is our first introduction to the reaching the court house steps, the absence of an attorney can lead down the road of disaster. Today, we are going to discuss the topic of the arraignment and then provide commentary from three lawyers that also have served as educators in our profession to develop a greater understanding of the issue. 68916_law_education_series_2-300x225

When we look up the topic of the arraignment in Black’s Law Dictionary, we find that the issue is defined as a formal reading of a criminal charging document in the presence of the defendant to inform the defendant of the charges against him or her. In response to arraignment, the accused is expected to enter a plea. In the law school classroom, the topic is not generally discussed in detail and until you take a Barbri course or listen to a Hugh Reed lecture while studying for the bar exam, there is not much said on the topic other than it is one of the 8 testable issues where the right to an attorney attaches. Reality differs greatly from the Michigan Bar Exam and while the Michigan Board of Bar Examiners will test on it, the courtroom will test the issue in far greater detail. Due to the misconception that the arraignment is not a pivotal topic, we decided to get insight from leaders in the criminal defense field.

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. In addition to being a leader in the field, Grabel has also served as an Adjunct Professor at Western Michigan University-Cooley Law School. Grabel stated, “The arraignment is the first step but it truly sets the tone for what is forthcoming. Quite often, we will visit a client in jail before even being retained because we want to let the court and the prosecutor know that we are here to protect our client’s constitutional rights. When the day of the arraignment comes, we have our notice of appearance and demand for discovery in and we are ready to argue for bond. If you’re not ready, the client will suffer.”

There were once famous words that were uttered in law school classrooms and courtrooms across the country and they sounded like this: “Let the punishment fit the crime.” While that sounds like a logical phrase, what happens when punishment grows out of control and we end up with economic hardship within the prison system? Today, we will explore the economic issues that the Michigan Department of Corrections is facing and examine how House Bill 5078 has the potential to change the prison system. In addition to exploring the issue, we will speak with leaders in the criminal defense sector and see how the economic argument can change the sentencing aspect. iStock_000003965027_Large-2-300x200

When we review the legislation from a global view, we see that House Bill 5078 was introduced by Rep. Al Pscholka (R) with the goal of saving the state of Michigan nearly $6 million per year in healthcare for those that are incarcerated. The plan would be to place these prisoners in nursing homes due to the costs that is associated with housing them. As Pscholka told the Associated Press, “A lot of them are bed-ridden. Some of them are taken advantage of or abused in prison, and this is just a better place for them to be.” While Pscholka’s bill has presented ire from many, the logic connected to the verbiage has resonated within the criminal defense sector and caused an ongoing debate.

Scott Grabel of Grabel and Associates is known as the leader in criminal defense within the state of Michigan. When asked about the bill, Grabel responded by saying, “The facts are undisputed. When we review statistics from the Michigan Department of Corrections, we see that it will cost the state of Michigan at least 5-times as much to house a sickly inmate and many older inmates fall into this category. While it would take some structuring from the healthcare sector, we have a possibility to improve the quality of life for many of the elderly while simultaneously saving our state millions of dollars. This is the classic example of a win-win scenario.”

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