Articles Posted in Criminal Appeals

Last month, 30-year-old Jason G. Lehre gained an outright acquittal from the state Court of Appeals, something that rarely happens. Lehre’s conviction for unarmed robbery of a man outside a bowling alley in Warren was overturned. Lehre had been sentenced to 11 to 20 years in prison for the robbery in which a man’s gold necklace was allegedly stolen.

Another man who was allegedly involved in the robbery, 34-year-old Michael C. Garrison, also had his conviction overturned by the appeals court, although he will get a new trial. Lehre was tried by prosecutors for aiding and abetting in the commission of the crime.

The Michigan Court of Appeals found that two elements of three which must be proven by prosecutors beyond a reasonable doubt were not proven due to insufficient evidence. To be convicted of unarmed robbery in Michigan, it has to be proven that:

 The crime the defendant is charged with was committed by the defendant or another person, and
 the defendant offered encouragement or performed an action that assisted in carrying out the crime, and
 the defendant intended to commit the crime, or knew at the time he/she gave encouragement that the other person intended to commit the crime
At trial, police claimed that Lehre punched Andrew Ashton, the victim, then ripped a gold necklace from his neck. Ashton testified that Lehre may have tried to intervene to prevent the robbery, as he stood between Ashton and Garrison and did not help or encourage Garrison.

The Court of Appeals determined that the second and third elements were not proven by prosecutors because there was not sufficient evidence to prove that Lehre gave encouragement or assisted in the unarmed robbery.

Michigan criminal appeal attorneys know that it is highly unusual for the state’s Court of Appeals to acquit an individual who has been convicted of a crime. Having a conviction overturned is very rare, and typically requires that the individual be re-tried.

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Jackob Trakhtenberg, a Russian man who entered the U.S. in 1974 and is now an Oakland County resident, is suing his defense attorney after the Michigan Supreme Court threw out Trakhtenberg’s 2006 sexual assault conviction based on the lawyer’s poor performance. Trakhtenberg, who is now 76 years old, served seven years in prison according to a news article at Mlive.com.

Trakhtenberg was the only defense witness in a trial which lasted only 53 minutes; he maintains that Deborah McKelvy, his defense attorney at trial, did not make an opening statement or request a jury. He is suing her for malpractice. Trakhtenberg’s attorney in the malpractice suit, James Elliott, said that the trial and the result was a “horrific miscarriage of justice” and that McKelvy took seven years of Trakhtenberg’s life.

Jackob Trakhtenberg was released from prison in 2012 following a 4-2 decision by the state Supreme Court, which noted that McKelvy did not deny that she chose not to secure additional evidence or consult witnesses in an effort to help her client. The court ultimately said that McKelvy’s performance in the sexual assault case was constitutionally inadequate.

Trakhtenberg was sued on behalf of the alleged victim following his 2006 conviction; he ultimately won the civil trial when new evidence emerged that may have helped him avoid a conviction in the criminal case, had that evidence been available at the time.

Michael Sullivan, McKelvy’s attorney in the malpractice suit, maintains that his client is an excellent criminal defense lawyer, and that her strategy at Trakhtenberg’s criminal trial was sound.

Individuals who are wrongly convicted of a criminal offense such as sexual assault may choose to file an appeal of their conviction. While many appeals are taken before the Michigan Court of Appeals, those involving attorney or judicial misconduct often are heard by the Michigan Supreme Court.

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In January of 2012, Benjamin French was sentenced to life in prison for allegedly killing an MSU student and his roommate in the course of an armed robbery involving drugs. The double murder occurred on March 25 of 2010; the victims were Owen Goodenow and Darren Brown Jr.

French, who is now 25 years old, appealed his conviction. Recently, a three-judge panel upheld the convictions for armed robbery and murder, according to a news article at The Lansing State Journal. Another man, David Marion Jr., is serving 40 to 60 years after pleading guilty to two counts of second-degree murder in the case.

Testimony in court indicated that Brown and Goodenow sold marijuana. According to detectives, French and Marion planned to set up a drug buy from Goodenow. They would get him to open his safe, then shoot him. Brown, who was 18 years old, came home unexpectedly early after attending class at MSU. Both of the victims were shot in the head.

In appealing his conviction, French argued that police did not have a warrant when they listened in on a telephone conversation between himself and Marion, and that this was illegal. He also argued that the calls should not have been allowed at trial, because they originated in Illinois, a state where all parties involved must agree before phone conversations may be recorded.

Marion had signed an FBI consent form prior to the phone calls with French, and agreed to investigators recording the calls. The appeals court found that when one party consents to the monitoring and recording of telephone conversations, a warrant is not needed. His request to have his conviction overturned was denied.
Appealing a criminal conviction or sentence is a process which requires the skill and ability of an experienced Michigan criminal appeals attorney. It is not often the appeals court overturns a conviction or sends a case back to court for resentencing. To have the best possible chance of success, the quality of lawyer you choose is paramount.

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Last month we wrote about Umar Farouk Abdulmutallab, a Nigerian man sentenced to life for attempting to blow up a Northwest Airlines flight headed to Detroit from Amsterdam on Christmas day in 2009. Abdulmutallab had explosives concealed in his underwear, and attempted to ignite the explosives as the plane was approaching the Detroit Metropolitan Airport. While the explosive caught fire, it failed to detonate. Abdulmutallab was the only passenger out of the 289 on board who was injured.

Abdulmutallab was charged with several criminal offenses including conspiracy to commit an act of terrorism and attempted murder. He chose to represent himself at trial, and pleaded guilty to all eight counts one day later. He was sentenced to four consecutive life sentences plus 30 years and 240 months.

The defendant appealed his conviction, arguing whether his sentences were constitutional, the admission of statements he made while in the hospital being treated for his injuries, and the court’s decision to allow him to represent himself.

Ultimately the U.S. Court of Appeals for the Sixth Circuit upheld Abdulmutallab’s conviction, ruling that when he pleaded guilty to the charges, he waived any right to challenge the suppression of statements he gave while in the hospital. The appeals panel also rejected his arguments that he should not have been allowed to proceed without a defense lawyer without a competency hearing being ordered. It was determined by the appeals court that Abdulmutallab’s sentence was not ‘cruel and unusual’ punishment, as had the bomb detonated the defendant would not have been the only one harmed.

Michigan criminal appeals attorneys understand how difficult the appeals process is, and the low odds of winning. Regardless of whether an individual is appealing a conviction for armed robbery, DUI, carjacking, murder, or any criminal offense, it is critical the defendant is represented by a capable and aggressive lawyer who is highly familiar with the appeals process.

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On December 17, the Michigan Court of Appeals upheld the conviction of Rodell Brown, an intake corrections officer at the Ryan Correctional Facility convicted of larceny in a building in connection money taken from detainees at the facility. Brown was responsible for processing parole detainees, and allegedly stole four inmates’ cash when processing their money and property. When the four inmates were transferred to other facilities, they claim to have received their physical property, but not the cash they had turned over to Brown.

In this case, the business office staff at the Ryan Correctional Facility maintained they had not received cash, and that Brown had not signed receipts for the money given to him by the four inmates. Brown’s supervisor questioned him as to why he had not signed the receipts, and Brown said he was paranoid about signing the receipts due to the fact that he was a “correction officer,” and the signature line on receipts stated “receiving clerk.” Brown also claimed to have placed the money received from the first two detainees in the safe. He was ultimately found guilty of four counts of larceny in a building.

Brown appealed his conviction, arguing on the grounds of insufficient evidence. The defendant also contended that he could not be guilty of larceny in a building because the parolees surrendered their funds voluntarily during the intake procedure. He argued that he may have committed extortion or embezzlement instead.

The defendant also argued that he should not have been charged with larceny in a building, saying that the proper route for the victims to have taken would have been to bring a civil suit against the Michigan Department of Corrections.

Ultimately, the Court of Appeals shot down all of Brown’s arguments, affirming his conviction.

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Many people are not aware that if they are convicted of a misdemeanor or felony offense, they have the right to appeal their conviction. A conviction is not “the end of the road.” However, it’s also important to note that winning an appeal is not easy, and in fact rare without the guidance of a highly skilled Michigan criminal appeals attorney.

First of all, an appeal is not a “second trial.” Appeals court judges will not review the evidence in an effort to determine whether the jury or judge was right or wrong. An appeal is a process in which a panel of judges determine whether legal errors were made, evidence prohibited should have been allowed at trial, the jury was not properly instructed, or other “errors of law” were made.

There are two types of appellate rights, an automatic right to appeal, and leave to appeal. What is the difference?

Those who have not pleaded guilty or no contest to a crime but who have gone through trial and been found guilty have an automatic right to appeal. Essentially, the Michigan Court of Appeals must consider your arguments, whether improper evidence was admitted, a judge erred in instructing the jury, or due to ineffective counsel, etc.

Those who pleaded guilty to a crime may request a leave to appeal. With a leave to appeal, the court is not required to hear your case. A leave to appeal may be requested when you feel a legal error was made. Unlike with a trial in which a defendant was convicted by a jury or judge, the appeals court does not have to consider your claim.

A unique type of appellate motion is a 6.500 motion, which may be filed only one time and is a motion which allows a defendant to challenge a conviction based on reasons such as newly discovered evidence, ineffective assistance of counsel, or other arguments which have not already been used in an appeal. Because a 6.500 motion can only be filed once, it is critical to have a lawyer who is familiar with the process and understands the importance of a well researched and written brief, and the arguments which will or will not be effective before a panel of judges.

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Winning an appeal from a criminal conviction is a rarity; in fact, reversal rates (meaning the court of appeals reverses a conviction) fall between approximately 5% and 15% of all criminal appeals across the nation, according to studies that have been conducted in some of the largest U.S. cities. Does this mean you hardly stand a chance if you have been convicted of a crime in Michigan, and appeal your conviction? It all depends on the skill and experience of your Michigan criminal appeals attorney.

Unfortunately, there are many people who remain behind bars today simply because their defense attorney was not effective, or did not properly advocate on behalf of the client. There have been countless defendants who have appealed their conviction, only to have the Michigan Court of Appeals uphold it. Essentially, this means the defendant goes back to prison and finishes serving out his or her term, even if it means life behind bars. What may have prevented this?

A criminal defense lawyer who is thoroughly involved and attentive to the client’s case. There is more to it than having charges dismissed, or winning at trial. For instance, may a defendant have faced greatly reduced penalties had he or she negotiated a plea bargain with prosecutors? Possibly. In many cases, defendants are poorly educated or may not even be able to read well. When handed copies of court documents, the defendant still has no clue what is going on. This is why it is critical defendants have a good criminal defense attorney, one who is dedicated to informing the client throughout every stage and who will advocate for an agreeable plea bargain when the situation warrants it.

The fact of the matter is that defendants deserve an attorney who will enlighten them regarding every option, because it is the defendant’s future and freedom which is at stake. All too often, a defendant goes to trial never aware that there may be a plea agreement which would substantially reduce penalties. The defendant ends up being found guilty, sentenced to decades or even life in prison. At this point, if a defendant decides to appeal the conviction, he or she had better have a thoroughly experienced and qualified Michigan criminal appeals lawyer given the odds of winning mentioned above.

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Winning on appeal of a criminal conviction or sentencing with the Michigan Court of Appeals is never easy, and truthfully, rare. This is particularly true when defendants argue ineffective assistance of counsel in appealing a conviction. On December 12, Rosa Sharie Watson’s conviction of arson of a dwelling and arson of insured property was overturned after a divided panel of the appeals court found Watson’s defense attorney ineffective due to the fact he failed to retain an independent fire expert.

The defendant had allegedly told her defense lawyer about a fire expert who would testify on her behalf, demonstrating that positive evidence of an intentional fire was lacking, and that the incident should have been classified as outcome undetermined. However, Watson’s lawyer did not contact this expert fire witness. At trial, an expert fire witness for the prosecution testified that evidence concluding that the fire was accidental was non-existent, and because other witnesses contradicted the defendant the fire must have been started intentionally.

Watson’s attorney also failed to challenge the admission of other criminal offenses she had been accused of, which had nothing to do with committing arson or the destruction of a dwelling. These events included uttering and publishing, embezzlement, and attempt to commit insurance fraud, which Watson was never charged with. The appeals court found that the trial court should and would have denied admission of this evidence had her defense lawyer challenged its admission.

In the end, two of the three appeals court panel judges sided with Watson. Judges Douglas Shapiro and Jane Beckering concluded that the defendant deserves a new trial. Had the Michigan Court of Appeals not reversed Watson’s conviction, she would continue to serve 7 to 30 years in prison.

Appealing a conviction with the Michigan Court of Appeals is a complex process. While it is a second chance for a defendant to obtain a better outcome, judges rarely side with a defendant who claims ineffective assistance of counsel. This is a huge win for Ms. Watson at this time, although there is no way to determine whether the new trial will end in a conviction or acquittal.

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Two days prior to Christmas, a federal appeals court panel signed an order which temporarily stayed an order issued in November by U.S. District Judge John Corbett O’Meara requiring Michigan to give parole hearings to “juvenile lifers,” or inmates who are serving mandatory life sentences for offenses committed as minors. This order would have affected some 350 inmates, according to news reports.

In November, Judge O’Meara ordered the state to develop a process for offering parole hearings to these inmates. The deadline for developing the process was December 31. The judge issued the order saying that in the wake of the June 2012 U.S. Supreme Court ruling regarding Michigan’s sentencing scheme for juveniles as cruel and unusual punishment, the state had failed to take action.

Michigan Attorney General Bill Schuette called the order by the federal appeals court a “Christmas gift” for the families of victims murdered by the inmates who were at the time juveniles. Schuette has been staunchly against offering inmates an opportunity for parole. The Attorney General said in a statement that “I will continue to fight for murder victims and their families who should not be forced to go through unnecessary parole hearings. We will also aggressively defend the authority of state court sentencing judges to object to parole when public safety requires it.”

The U.S. Supreme Court struck down mandatory life sentences for juvenile offenders in June of 2012, however state and federal courts have not been in agreement regarding whether the ruling should be applicable to inmates who committed murder as juveniles, but who are already in custody.

U.S. Supreme Court justices determined in 2012 that certain sentencing schemes are unconstitutional, such as those for juveniles which to not take into consideration factors such as a young person’s potential for cognitive and character development. It was determined that placing juveniles in prison and essentially “throwing away the key” without taking into account factors such as the child’s maturity level, age, and circumstances equates to cruel and unusual punishment.

Schuette is appealing Judge O’Meara’s order; in the meantime, several of the inmates have brought a lawsuit against Michigan which is being considered by the Sixth Circuit Court of Appeals.

Should inmates who were ultimately children when they were imprisoned for violent crimes such as murder be incarcerated for their entire lives? This is certainly a topic that has been hotly debated.

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Carlton Vur Adams of Hastings was found guilty in May of 2012 of operating a motor vehicle while having a controlled substance in his body, according to a news report at the Hastings Banner. Adams was also charged with operating a vehicle while having a controlled substance in his body causing death, however the jury acquitted him of those charges. The 63-year-old Hastings resident was sentenced to one year in jail, 60 months probation, drug court, and ordered to pay nearly $5,700 in court costs.

News reports indicate that Adams was charged in connection with a September 2010 accident involving the death of an individual riding a motorcycle; the motorcycle was allegedly traveling at speeds of about 100 MPH when it struck Adams’ vehicle as he was turning left onto a cross street on M-37.

Adams appealed the jail time handed down at sentencing, arguing that the trial court erred in calculating scoring points to determine the length of sentence. The Michigan Appeals Court disagreed, ruling that scoring points were accurately used in determining jail time for the offense by the local court. The appeals court said that the call was “close,” and that if Adams had not been operating his vehicle with intoxicants in his blood, he likely would have noticed the bright headlights of the motorcycle approaching, and would not have turned in front of it. Jeremy Easterbrook, driver of the motorcycle, died from injuries sustained in the accident. The appeals court said that ‘but for’ Adams’ act, the victim would not have died and the accident would not have occurred.

Court of Appeals Judges Jane E. Markey, Jane M. Beckering, and E. Thomas Fitzgerald heard the appeal; the court issued the ruling on November 19.

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