Articles Posted in Criminal Defense Overview

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.

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.

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.”

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.

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.

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.”

Michigan criminal defense attorneys know all too well that many defendants, regardless of their innocence or guilt, accept plea bargains (plea deal, agreement) offered by prosecutors. Why would anyone who is innocent ever agree to such a deal? Why not plead not guilty and go forward to trial? This is a question many people who have not been put in this position ponder, but unfortunately it’s a terrible truth. The fact is, our criminal justice (or injustice, as you may want to view it) is so unstable that those who are completely innocent could be found guilty at trial. If you were in this position, would you rather accept a plea deal that results in two years in prison, or go to trial knowing you could possibly face 10, 20 or even more years behind bars if for some inconceivable reason you were found guilty? Exactly.

Defendants in any criminal case are presumed innocent until found guilty beyond a reasonable doubt, however often this is not the case. Jurors often form their own opinions based on emotions or feelings, rather than indisputable evidence. The fact is, among convicted felons between two and eight percent are innocent individuals who accepted plea agreements. It’s easy to assume many criminal cases go to trial, however the hard truth is that 94% of state convictions occur because the defendant accepted a plea deal, or in other words pleaded guilty to a lesser crime. Sure, some are guilty – but considering up to eight out of 100 who are convicted because they accepted plea deals, it’s easy to see there are many innocent folks serving time behind bars – not to mention the ruin of their careers, reputations, even relationships.

Why do those who are innocent ever agree to plead guilty? It’s simple, really. Most fear the worst possible outcome at trial. In other cases, going forward toward trial often means months or even years in jail awaiting trial, considering the delays and postponements. For most people, taking weeks or months off from work just isn’t feasible financially, and even when a case does eventually go to trial it could possible end in a hung jury, which in many cases means yet another trial. Think of those who have families, young children or teens, responsibility; waiting for an interminable length of time to go to trial and even then not knowing what the outcome could be is simply unimaginable.

One concept that is often overlooked by lawyers in the criminal field is the importance of a “Walker Hearing”. Brought to us in the case of People v. Walker (1), a “Walker Hearing” is used when interpreting whether or not a confession was done in a voluntary fashion.

In the state of Michigan, for a confession to be deemed valid, the defendant must have made it in a knowingly, intelligently and voluntary fashion. The element of a coerced confession is one that can be the difference between freedom and incarceration because if a defense counsel can display the confession was done in an involuntary fashion, the statement will be suppressed through the exclusionary rule.

When a defendant claims that the confession was done in an involuntary fashion the judge can hold a hearing to determine voluntariness of confession. The thing that is often misunderstood by practitioners is that the defendant may take the stand and testify for limited purpose of making of record his or her version of facts and circumstances under which confession was obtained. Even with the defendant taking the stand at the “Walker Hearing”, the defendant will still have the option not to take the stand at their trial should the confession be deemed to be admissible because of the protections afforded in both the United States and the Michigan Constitution.

In life, sometimes we make mistakes and sometimes, those mistakes were never warranted in the first place. One way to recapture your reputation is presented with the concept of an expungement. To understand the meaning of an expungement, we need to understand that it is a concept that has the effect of settling aside a criminal conviction that will allow a former defendant to be truthful in job applications and grasp a sense of freedom that they did not after receiving a conviction.

While the concept of an expungement is something that is a potential dream come true, the theory of an expungement is far easier said than done. Lawyers such as Scott Grabel have developed a reputation for winning expungements on a regular basis but as Grabel and his team will be the first to tell you, the biggest thing to understand with an expungement is a careful research of the law and making the determination that not all crimes can be expunged. The law to research when looking at expungements is not an overly difficult one to understand but presents an extremely hard concept to apply (MCL 780.621).

One leader in the criminal field is Ravi Gurumurthy, whom practices in Cadillac, Michigan. Ravi has recently won several hotly contested expungement cases in a 200-mile radius. When asked about expungements, Gurumurthy said the biggest mistake that people make is not having their paperwork in place. “The forms that are needed are often get overlooked. A lot of people feel that they can do the process on their own but without a certified copy of their conviction, they stand lose their petition. In addition to this, they need two copies of certified fingerprints completed. While this sounds easy, the majority of people hire lawyers that lose the matter in the preparation. There is no question that the devil is in the details and without details, the only thing that the client will get is an attorney bill that does not equate to success.”

If you’re someone who has been arrested or is under investigation for a crime, you may decide you can represent yourself – or, you may believe your criminal defense attorney can provide you with an impenetrable defense. The fact is, while a skilled Michigan criminal defense lawyer can win many cases despite tough odds, those who are facing charges of rape, drug trafficking, theft, robbery, or even something as seemingly minor as marijuana possession should always expect the unexpected. With a criminal defense case, nothing is ever cut and dried.

Most criminal defense lawyers have several battle scars after coming up against surprise verdicts delivered by judges or juries, in addition to the inexplicable “high” of winning even the toughest cases they thought would likely go the other way. Ask any attorney whose practice focuses on defending the alleged “bad guy,” and you’ll find that at times he/she has likely felt the feeling of free-falling from the highest cliff in the world. It’s not unusual for attorneys in the world of criminal defense to experience an exhilarating ride, however we all know what can happen when we come back down to earth – something we never expected.

Even though many who specialize in criminal defense feel right at home in the courtroom, there are countless times attorneys feel almost like they should don a suit of armor to prepare for what will undoubtedly be a tough battle. Great defense lawyers thoroughly prepare for every battle, however when even the toughest, most well-prepared defense ends in defeat, it’s often a case of the old adage “hindsight is 20-20.” Understandably, anyone who is charged with a crime regardless of how minor or serious it may seem wants his or her attorney’s reassurance there isn’t an invisible land mine or “booby trap” ahead.