Criminal Defense Detroit MI

This week, LEWIS & DICKSTEIN, P.L.L.C. secured a complete dismissal of a felonious assault case in an Oakland County district court. Senior trial attorney George MacAvoy Brown handled the case and won the dismissal at the preliminary exam in an historic victory that exonerated the client and saved him from having to defend himself at trial in Oakland County Circuit Court.

Background

The firm’s client (here called Clint), was accused of pointing a pistol at his wife’s brother (here called Lyle), thereby committing the crime of felonious assault. In reality, the event began with a verbal argument, Lyle punched Clint in the face, and Clint legally drew his firearm and pointed it at Lyle in self-defense. Clint then went to his car, secured the weapon, and called the police to report that he was assaulted.

When sheriff’s deputies arrived, Clint and Lyle each wrote statements. Clint did not want to cause further family drama so he signed a waiver telling police that he did not want to see Lyle prosecuted. Lyle, however, indicated that he did want Clint prosecuted. Despite being the victim, Clint was arrested by the police and the county prosecutor brought a felony charge against him that could have subjected him to up to four years in prison.

Clint knew he was in serious trouble. He needed someone to fight for him. He called LEWIS & DICKSTEIN, P.L.L.C.

What is a Preliminary Exam?

In Michigan, felony cases always begin in district courts where a defendant has a right to a preliminary exam. The purpose of the exam is to force the prosecution to show that there is probable cause that a crime was committed and that the defendant was the person who committed the crime. Probable cause means that there is enough evidence to cause a regular person to conscientiously entertain a reasonable belief of the defendant’s guilt. It is a low standard of proof and prosecutors rarely have trouble meeting it. If probable cause exists, the case is bound over to the circuit court for trial. An exam is a hearing, something like a mini-trial, where the prosecutor calls witnesses to testify.

For a variety of reasons, defendants often waive their right to the exam. When exams are held in district courts, the district court judge almost always finds that probable cause exists. It is almost perfunctory because the charges have already been approved by police and a prosecutor. Those determinations alone suggest to many judges that probable cause already exists. Demonstrating that it does not, therefore, requires an extraordinary amount of effort and skill.

Clint’s Exam

Here, the defendant maintained his innocence. He was legally justified in drawing his weapon because Lyle punched him. Clint did not want to take a plea. He wanted a preliminary exam. He wanted justice.

As the hearing began, the county prosecutor called Lyle to the stand. He was placed under oath. Lyle stated that Clint had come to the house and the two began arguing about a family matter. He said that, unprovoked, Clint pulled out his pistol and pointed it at Lyle’s head. The prosecutor ended direct examination, taking the position that she had established probable cause that Clint committed a felonious assault on Lyle.

Defense attorney George Brown then took the opportunity to cross-examine Lyle. Mr. Brown pointed to a number of inconsistencies in the police report. For example, the report stated that Lyle told one deputy Clint pointed the firearm only once but also that Lyle told another deputy Clint pointed the firearm twice. Lyle insisted that he only said Clint pointed the gun once and stated, when prompted, that the other deputy must have been lying if he wrote in the police report that Lyle said “twice.”

Mr. Brown then asked Lyle if he would ever hit someone. Lyle denied that he would. Unknowingly, Lyle had just opened to the door to the introduction of character evidence by claiming that his character was such that he would not hit someone. Mr. Brown was prepared and knew that Lyle had recently been charged with assault and battery for punching another person. Mr. Brown asked if Lyle had hit that man, and if he was charged and convicted of a crime. Lyle admitted that, yes, he did hit someone else but again denied that he ever hit Clint.

Mr. Brown then asked Lyle if having a gun pointed at him was a big deal, something that would have a profound effect on a person. Lyle agreed. Mr. Brown then handed Lyle a copy of his written statement and asked him to direct the court to any reference of a gun. Lyle could not because he never mentioned the gun in his written statement! Mr. Brown pressed Lyle, asking him if he had forgotten to write about the gun because he was too busy lying about hitting Clint. Lyle angrily denied this but his credibility was already in tatters.

The Ruling

The district court judge had a determination to make. In nearly every case where there is a factual dispute raised at exam, district court judges bind the cases over to circuit court because questions of fact are best left for trial. The district court judge does not need to believe the evidence beyond a reasonable doubt to find probable cause and judges almost always find probable cause.

The judge here ruled that no probable cause existed. For the first time in her 20-year tenure on the bench, she found a witness to be so lacking in credibility that she could not entertain a reasonable belief that Clint was guilty. Without Clint ever opening his mouth in court, Clint’s defense attorney was able to prove his innocence.

Lawyers Who Will Fight

The dedicated, experienced and zealous criminal defense attorneys at LEWIS & DICKSTEIN, P.L.L.C. fight for their clients at every step of every case when handling felony and misdemeanor charges in federal court or in state courts in Oakland, Macomb, Wayne, Washtenaw, and Livingston Counties and throughout Michigan. George Brown and the rest of the Defense Team have well-earned reputations for providing the highest quality defense and aggressive representation, making prosecutors defend the charges they bring against our clients. Call us today at (248) 263-6800 or complete a Request for Assistance Form and we will contact you promptly.

Getting evidence suppressed and charges dismissed is something that only the most successful and persuasive criminal defense attorneys can accomplish. This information is what you need to know if your rights have been violated.

The Exclusionary Rule

The Exclusionary Rule is a judge-made rule which states that when evidence is obtained by law enforcement in violation of a suspect’s constitutional rights, that evidence may not be used against that suspect in court. The exclusionary rule was initially born in the United States Supreme Court. All states have since adopted it in one form or another, because all states must follow constitutional holdings of the United States Supreme Court. A state court may provide more constitutional protection than the US Supreme Court, but no state may provide less protection. Any evidence obtained through a constitutional violation is potentially and likely to be suppressed. Any evidence derived from a violation of constitutional rights has come to be known as “the fruit of the poisonous tree.” The violation itself is the poisonous tree and this evidence must be suppressed as well.

If your constitutional rights have been violated, your criminal defense attorney needs to have the experience to successfully challenge the admission of such tainted evidence, get a dismissal of all charges, and have the case thrown out of court. If no challenge is made, or if an attorney is not astute enough to spot that a constitutional violation or strong enough to fight for suppression, the evidence can and will come in. A judge will not step in and tell a defendant he or she should challenge evidence, and neither, of course, will the prosecutor.

Purpose of the Exclusionary Rule

The purpose intended by keeping unconstitutionally obtained evidence out of court is to deter unconstitutional police conduct. If police know evidence will be kept out if they violate rights, then the theory is that they will probably try not to violate rights. At least, that’s the idea. The idea is a good one, and has had a very significant effect on criminal cases in the United States. This being said, police are not perfect and there are bad apples in every bunch. There are plenty of police officers that can and will violate a suspect’s right believing that the ends justify the means.

Good Faith Exception to the Exclusionary Rule

As is the case with almost everything in life, things are not usually black and white. Most things exist in a gray area. Therefore, exceptions to the exclusionary rule have developed. One primary exception to the exclusionary rule is the so-called “good faith exception.” The good faith exception exists where police or any law enforcement personnel rely, in objective actual good faith, upon a search warrant issued by a detached and neutral magistrate or judge, but the warrant is ultimately determined not to be supported by probable cause. The reason that evidence can come in despite a defect in a search warrant is that excluding evidence when police were mistaken but “behaved honorably” will not serve a deterrent effect on bad police conduct. Remember, deterrence is the reason for the exclusionary rule. It would be like punishing a child for eating someone else’s cookies when the child actually had good reason to believe they were his cookies.

The Procedure for Suppression of Evidence

When an experienced, perceptive defense attorney spots a potential ground for dismissal based upon an illegal search, he or she should file a Motion to Suppress. If the motion is successful, he or she should then move for a dismissal of all charges based upon insufficient remaining evidence. The government will assuredly always argue the good faith exception, but courts are arenas for the combat of ideas. A great boxer would never step into the ring, look at his opponent, and say, “Wow, I can’t beat this opponent.” He would simply fight with all his heart, like we do on a daily basis.

The right firm to fight for you and suppress evidence

The dedicated, experienced and zealous defense attorneys at LEWIS & DICKSTEIN, P.L.L.C. have successfully fought to suppress tainted evidence and get charges dismissed in state and federal cases in Oakland, Macomb, Wayne, Washtenaw, and Livingston Counties and throughout Michigan. We have a well-earned reputation for providing the highest quality defense and aggressive representation, while showing empathy and care for each client. Call us today at (248) 263-6800 or complete a Request for Assistance Form and we will contact you promptly.

We will find a way to help you and, most importantly,
we are not afraid to win!

If you are accused of committed an act that may be a crime, you need to hire a top-rated criminal defense attorney immediately. Waiting for the police or prosecutor to decide if you will be charged may be one of the biggest mistakes you’ve ever made.

You have good reason to believe you may be charged with a crime. Now what?

Many people believe that they may get lucky and a criminal act will either not be discovered or the police will give it a “pass.” Such people are fooling themselves. It is exceedingly rare that the police will not follow up on a case they believe exists. It is just a matter of time before there is a knock on your door, or police car lights in your rear-view mirror, or you get a visit by several police at your place of employment. You will be handcuffed in front of whoever is around, put into the back of a police car, and taken to jail. If you get arrested at work, it is most likely you will not be returning to that job.

Because of the fact that hiring an attorney costs money, many people believing they are going to be charged decide to wait until they have been charged. They even go so far as to speak to the police who are investigating the case without the advice and protection of an attorney. This is a terrible mistake. If the police consider you a suspect, you will not be able to “talk your way out of it” with the police. All that will happen is the police will gain information they can use against you that they didn’t have before. You may think you can explain things to the police and say the right things, but this, again, is a huge mistake. Remember that anything you say to the police “can and will” be used against you, not “may” be used against you.

If you are innocent and being falsely accused there is even more of a reason to hire a lawyer right away. An aggressive, respected and proactive attorney may be able to stop you from being charged, even when a charge seems inevitable. Avoiding a charge is always better than defending a charge.

The Pre-Charge Stage

If you believe you are a suspect and have a strong belief you may be questioned or arrested, it is absolutely critical that you hire an attorney. The attorney can call, meet with, and send a letter to the police and tell them you have a retained attorney, and all contacts must be through the attorney. The police will not have any access to you; you will be shielded. An experienced, savvy defense attorney will not allow the police to talk to you.

The pre-charge stage is very critical because in some cases an astute attorney can actually convince the police not to charge you. This is because a talented attorney will know how to address each piece of evidence the police claim to have against you, and show the police their case is weak and not worthy of being charged.

Another reason to have an attorney before you are charged is because the attorney will communicate with the police and ensure them that you do not have to be arrested on the street. You will walk in to court and booking when they request you to do so. And of course, you will have your attorney by your side. Once in court, your attorney will argue for a personal bond or low bond.

If you think you can wait until you are charged and then get a court appointed attorney to help you, think again. You may sit in jail for quite a while (sometimes weeks) until you see your court-appointed attorney, probably at the first court date. Court-appointed attorneys do not come into the picture until after you have been charged. And very frequently, if not usually, you will not see your court-appointed attorney until you get to court. If any attorney tells you to wait and call them back if you get charged, you do not want to hire that attorney; they are leaving you totally unprotected. Top-rated, astute criminal defense attorneys know that you need to be protected even before you are charged.

In many cases, evidence that can be used in defense of an allegation can be lost if not properly preserved. When the police wait days, weeks, or even months to bring charges, evidence favorable to the accused may get destroyed, erased, altered, or otherwise become inadmissible. An experienced, retained lawyer that is hired early on in an investigation will have the best chance of preserving evidence helpful to the defense. As mentioned before, the lawyer can sometimes use this evidence to help their client avoid being charged in the first place.

LEWIS & DICKSTEIN, P.L.L.C., The Pre-Charge Criminal Defense Expert Attorneys

The dedicated, experienced and zealous defense attorneys at LEWIS & DICKSTEIN, P.L.L.C. have successfully represented thousands of clients who were being investigation for possible felony and misdemeanor charges in Oakland, Macomb, Wayne, Washtenaw, and Livingston Counties and throughout Michigan. We have a well-earned reputation for providing the highest quality defense and aggressive representation. If charges in your case can be avoided, we will do everything possible to make that happen. Call us today at (248) 263-6800 or complete a Request for Assistance Form and we will contact you promptly.

We will find a way to help you and, most importantly,
we are not afraid to win!

The expectation of Privacy in Intimate or Vulnerable Situations

Under Michigan law, “Surveillance” means to secretly observe the activities of another person for the purpose of spying upon and invading the privacy of the person observed. In addition to secretly observing someone, it is also illegal to capture images of what is being observed. The potential penalties substantially increase for distribution of these images.

Michigan has enacted laws punishing intrusions into the privacy of others. Judges and prosecutors take privacy very seriously. Laws cover secretly “surveilling,” and/or capturing images of a private nature without the knowledge of the person being surveilled are prosecuted to the fullest extent of the law and sentences frequently include jail or prison time. Just because jail might be common, doesn’t mean that there is no hope. There are great lawyers that have a track-record and reputation for defending these charges zealously and successfully.

What, specifically, is prohibited?

I. Observation: A person my not secretly observe another who is:

“clad only in his or her undergarments, the unclad genitalia or buttocks of another individual, or the unclad breasts of a female individual under circumstances in which the individual would have a reasonable expectation of privacy.”

The key to criminality here is whether the person observed has an expectation of privacy. In other words, as an extreme example, if someone is walking down the street naked, they of course should not expect that they have any privacy. In those cases, anyone could legally observe them.

II. Capturing images: A person may not secretly capture images (pictures or video) of:

“the undergarments worn by another individual, the unclad genitalia or buttocks of another individual, or the unclad breasts of a female individual under circumstances in which the individual would have a reasonable expectation of privacy.”

Again, the key is whether the person photographed or videoed has a reasonable expectation of privacy. If not, as in the example above, anyone may photograph or video them legally. A minor cannot be photographed for sexual purposes under any circumstances. Images of minors under these circumstances would be even more serious.

III. Distributing images: A person may not:

“Distribute, disseminate, or transmit for access by any other person a recording, photograph, or visual image the person knows or has reason to know was obtained in violation” of the rules above.

The Michigan Court of Appeals recently ruled that downloading and saving a video is “distribution” under Michigan law. Although criminal courts bend over backwards to help prosecutor’s get convictions in these cases, a strong and zealous defense lawyer can take measures to protect you.

What are the penalties for illegally observing someone who is naked?

First offense: If someone is convicted of surveilling another for the first time, it is a 2-year felony, a $2,000.00 fine, or both.

Second or further offense: A second offense is a 5-year felony, a $5,000.00 fine, or both.

What is the penalty for illegally capturing images or distributing images?

The penalty for capturing images or distributing images, first offense, or even attempting to do it for the first time, is 5 years in prison and a $5,000.00 fine, or both.

A Defendant May Face Additional Charges

The law makes it clear that if you have been charged with surveilling, capturing or distributing, you can also be charged with other offenses as well. Probably most importantly, if the activity above involves minors, you may be subject to child sexually abusive activity charges. The penalties for involving a minor in this activity are treated significantly more seriously, and carry potential prison terms up to 20-years in jail.

In many of these cases, the government will charge an additional felony called Using a Computer to Commit a Crime. This is a felony with a potentially long prison term that depends on the severity of the underlying crime. A phone, computer, tablet, or other electronic device is considered a “computer” under this law.

Exceptions to the Rules

Private security cameras, as long as they are not used for a lewd or lascivious reason, which happen to surveil individuals or capture otherwise prohibited images, and law enforcement officers acting in the legitimate performance of their duties, are exempt from criminal liability even if the surveilling or capturing images would otherwise be illegal. There are many other defenses to these charges as well and it will take a seasoned lawyer to figure out what strategy is best for your defense or to mitigate any sentence that might be imposed if you are convicted.

What to do if you are charged with violating the rules on illegal surveillance or capturing or distributing images

The dedicated, experienced and zealous defense attorneys at LEWIS & DICKSTEIN, P.L.L.C. have successfully defended many people charged with the offenses discussed above, both federal cases in the United States District Court and state charges in Oakland, Macomb, Wayne, Washtenaw, and Livingston Counties and throughout Michigan. We have a well-earned reputation for providing the highest quality defense and aggressive representation, while showing empathy and care for each client. Call us today at (248) 263-6800 or complete a Request for Assistance Form and we will contact you promptly.

We will find a way to help you and, most importantly,
we are not afraid to win!