Articles Posted in Legal

Bond reform is an issue that was at the center of controversy before COVID-19. With the coronavirus causing deaths and stealing headlines, the effect of protecting the community with bond has become a significant issue of division between prosecutors and defense lawyers across the United States. In the state of Michigan, we are known to have higher bonds than most of our sister states. This leads to a debate of whether COVID-19 plays a role in the issuance of a bond or should the defendant be forced to swipe their credit card to stay out of jail pending their criminal case. More importantly, what happens if the defendant cannot afford to pay for their bond. To review this issue, we spoke to several criminal defense lawyers and a prosecutor to gain their insight.

Scott Grabel is the founder of Grabel and Associates, which is known as the top criminal defense firm across the state of Michigan. When asked about the issue of bond during COVID-19, Grabel said, “District Court judges and Magistrates need to understand what we are dealing with. If the defendant turned themselves in and has retained counsel, that should be enough to show that the defendant is cooperating and should be given a Personal Recognizance Bond. These are tough times, and placing somebody in jail with the presumption of innocence is dangerous to society.”

A prosecutor in Michigan that would not give her name added her point of view when she said, “Our job is to protect the community. The reason for a bond is to make sure that somebody cannot flee the state. I must protect society, and that is what I plan to do.”

COVID-19 has affected many across the United States and has created what many have phrased as the “new normal.” Governor Gretchen Whitmer has extended the “stay at home” order until May 15, and the Michigan Supreme Court has adjourned all trials until at least June 22, 2020. Administrative Order 2020-10 has mentioned that a “Pilot Program” made be put in place for jury trials where our circuit courts may allow jury trials via Zoom. We spoke to some of the top criminal lawyers in our state to get their perspective on this issue.

Scott Grabel is the founder of Grabel and Associates. Grabel’s firm is known as the top criminal defense team in the state of Michigan. When asked about Zoom trials, Grabel said, “We need to fight this. We are risking the freedom of others if we move to remote trials. The concept of jury trials is embedded in our history. If we move from that, we are asking for a compromise of the United States Constitution.”

William Amadeo is a partner at McManus and Amadeo in Ann Arbor, Michigan, and a Senior Associate for Grabel and Associates covering Wayne and Shiawassee Counties. Amadeo said, “This is a joke. How am I going to conduct Voir Dire? At a place like Frank Murphy, Voir Dire is where the rubber meets the road. What’s next, should I just potential jurors a text? We cannot let any pilot program happen, and if the courts allow it, we all better get into motion practice.”

Original Case Details

Desmond Ricks was convicted of second-degree murder and spent 25 years in prison for a crime he did not commit. He accused of shooting a friend outside a Detroit restaurant and blamed the police for pinning the case on him without the proper evidence. He accuses police of seizing his mother’s gun and switching the bullets in an attempt to frame him for the murder. An analysis of bullets from the victim in the case has shown that they do not match the gun that was presented at trial against Ricks back in 1992. The University of Michigan Innocence Project took the lead on this case and got a judge to reopen the case back in 2016 when they found that the bullets didn’t match. It has never been disputed the Ricks was there at the restaurant when the shooting occurred, but he has always maintained that he was not the shooter who killed the victim in this case.

Where The Case Stands Now

The Wayne County Jail has seen a dramatic decline in inmates due to the COVID-19 pandemic. Wayne County Sheriff Benny Napolean stated that the only people left that are currently in custody at Wayne County Jail are those who are charged with felonies and those who pose some sort of public safety threat. The jail population has been reduced by over 400 inmates since early March. As of March 10, the Wayne County Jail population was almost 1,400 inmates. Now the current jail population at Wayne County is approximately 950 inmates. Currently, if someone is in custody on a misdemeanor charge, it is likely that they are charged with domestic violence or some other sort of assaultive or dangerous crime. The County Jail and Wayne County Prosecutor’s Office are doing regular checkups on every individual case to determine who needs to be in custody and who doesn’t. The final determination of this, as always, resides with a judge or magistrate who can set bond and bond conditions.

Reduced Arrests And Police Activity

Fewer arrests are being made due to the state shelter in place order, along with a reduction in overall police activity due to the COVID-19 pandemic. This is all part of an initiative from Wayne County to reduce the jail population and steer people away from this virus which spreads from close, person to person contact. These releases have been ordered administratively, without the need for a typical bond hearing in front of a judge or magistrate. For the remaining inmates, the County expects that massive push in emergency bond motions will be filed to address each remaining case in terms of bond and release. If you have a loved one who is currently in custody at Wayne County or any other jail, they might be eligible to be released due to the health and safety concerns of the current pandemic. It is imperative to speak to an experienced criminal defense attorney immediately to file any relevant motions and get in front of a judge or magistrate to see if a release is possible. The danger inside a jail currently can far outweigh the risk of an inmate being out of custody because of COVID-19. Those who need a bondsman can also find out more information here.

A Circuit Court judge out of Genesee County has reinstated criminal charges against former Thetford Township police chief Robert Kenny. This ruling overrules the District Court judge’s decision dismissing the case at preliminary exam. Genesee County Circuit Judge David J. Newblatt overturned 67th District Court Judge Vikki Bayeh Haley’s decision to dismiss embezzlement and obstruction of justice charges against Kenny.

Original Case Details

Now former Thetford Township police chief Robert Kenny was alleged to have pocketed more than $5,000 after scrapping surplus military equipment that was owned by the city. This surplus equipment was said to have been obtained by the Thetford Police Department through the federal Law Enforcement Support Office (LESO) program. This program would give excess military equipment that might otherwise be destroyed to law enforcement agencies across the country. All of this equipment is simply given, not sold, to law enforcement agencies. The military equipment would include clothing, office supplies, tools, vehicles, and guns etc. Since the beginning of the program, LESO has transferred more than $7 billion worth of military gear to law enforcement agencies nationwide. Items that are obtained through LESO can be sold off after one year as long as the money is then put back into the police department for improvements. Genesee County Prosecutors allege that Kenny sold off some of this surplus equipment and pocketed the money, over $5,000 worth. 67th District Court Judge Bayeh Haley said that the case “may be bad bookkeeping, but not probable cause for embezzlement.” She also found that there was no evidence of any obstruction of justice charges due to his cooperation with officers.

There are approximately 4000 people in the state of Michigan that are on parole and wear an electronic tether. The Michigan Department of Correction first made an order to have electronic tethers taken off 3000 of these parolees to only change their minds a short time afterwards. On Monday April 6, 2020 Michigan parole agents were given a verbal order to remove the electronic tethers from their parolees. The following day, this order came in writing and ordered tethers removed for offenders for a whole variety of crimes which included things like home invasion and possibly even homicide. Offenders who had sexual assault and stalking related cases were not affected. This order was short lived however, as the order was retracted on Wednesday, April 8, 2020. While some people had already removed their electronic tethers, many had not done so yet, so the effects of the original order were not strongly felt. Michigan Department of Correction spokesman Chris Gautz said that the original order was made in an effort to try to maximize the department’s resources. Due to the current stay at home order, parole officers are literally watching parolees walk circles inside their own homes. Gautz said that the department deems this time spent by parole agents to not be the best use of their time.

Important Facts About Electronic Tethers

Electronic tethers have been in use with the Michigan Department of Corrections since 1987. Offenders supervised by electronic tethers are watched more closely than other offenders. The technology in these electronic tethers uses both GPS tracking and cellular service to monitor offenders in real time. Those who are on “Curfew Monitoring” have an approved schedule of where they are physically expected to be at different times of the day around their residence. Parole agents have the ability to track and verify if their parolee actually went to required treatment, along with work or school. The Secure Continuous Remote Alcohol Monitoring (SCRAM) tether is a 24-hour alcohol monitor tether that takes hourly readings of an offenders sweat to determine if he or she had ingested alcohol.

Wayne and Oakland Counties are two of Michigan’s most populous counties. They are also two of the hardest hit counties when it comes to infections of COVID-19. The Wayne County Jail has already reduced population due to the outbreak of the virus. The jail population has been reduced by over 400 inmates since early March. As of March 10, the Wayne County Jail population was almost 1,400 inmates. Now the current jail population at Wayne County is approximately 950 inmates. Two members of the Wayne County Sheriff’s Office have died so far due to COVID-19. Due to these numbers, the police have looked to relax enforcement on the more minor traffic offenses like speeding or even expired plates. The police department realizes that people are unable to go to government offices and are generally locked in anyways due to the governor’s shelter in place order. Traffic stops also increase the risk of infection for police as they can come into close contact with people who may be carriers of COVID-19.

Police Departments Hit By Pandemic

In Ingham County, MI the Lansing Police Chief has sent a memo to his officers entitled “Coronavirus Exposure Mitigation.” In this memo he details how the Lansing police is to not respond in person to any reports of fraud, larceny or malicious destruction of property of less than $1,000. Any of these cases are to be handled over the phone in taking reports and talking to witnesses etc. The memo also covered breaking and entering cases of vacant homes and buildings. These and other measures are meant to try to limit the potential exposure of police as so many people in various government jobs have been infected during this pandemic.

In the wake of COVID-19, the Michigan criminal justice system is in a state of disarray. While it has always been understood if every case went to trial under normal circumstances, our courts would be in jeopardy; we are now in an area that has never been seen before. One of the ways to combat this backlog is for courts to run preliminary exams using Zoom technology. This is a concept that is being entertained by different counties in the state of Michigan.

The preliminary exam is a proceeding after a criminal complaint has been filed by the prosecutor, to determine whether there is enough evidence to require a trial. Hearsay is typically allowed. Should the court decide that there is probable cause, a formal charging instrument (called the information in some jurisdictions) will issue; and the prosecution will continue. If the court should find that there is no probable cause, then typically the trial will cease. Many jurisdictions, however, allow the lawyer to seek a new preliminary hearing, or even seek a bill of an indictment from a grand jury. The critical questions that a preliminary hearing addresses typically are:

1. Is there probable cause to believe the alleged crime occurred and did it happen within the court’s jurisdiction?

Current Stay At Home Order

Order 2020-21 is the executive order that was put in place by Michigan Governor Gretchen Whitmer. This order has limited gatherings, travel, and required “non-essential” workers to stay home to help protect against the spread of COVID-19. Facemasks, gloves, and social distancing have become a symbol for the year 2020. This incredible sudden change of life has left many people confused, scared, and looking for answers. Michiganders have shown mixed feelings over the stay-at-home orders and their provisions, which has contributed to the fear and hysteria we are all facing. Adding to many Michiganders anxiety levels is that you can be charged criminally for violating the governor’s stay-at-home order. A willful violation of this stay at home order is now considered a misdemeanor offense that carries a fine of up to $1,000 per offense. Does that mean that you can get pulled over for “willfully violating the state order?” The answer is no. This offense is what police are considering a “secondary offense.” A secondary offense is an offense that isn’t the reason for the stop, but they can inquire about your plans, route, etc. if you are stopped for another reason. Police can also speak to and question passengers in a vehicle freely as there is no constitutional provision that prevents them from doing so. If you are pulled over and the officers are given different stories about where you are going from the different passengers in a vehicle, then you may encounter some issues with the police at that stop.

Requirement Of Probable Cause

Macomb County Circuit Court judges plan to meet in May to appoint an interim prosecutor to fill the role vacated by now-former prosecutor Eric Smith. These judges plan to meet on May 20 remotely to alleviate any current health and safety concerns due to the ongoing pandemic. 15 judges plan to take part in the decision to appoint a new prosecutor. There will be a 12-day application period for those interested in the position that ends on May 15. This interim position will end with the November election, where a prosecutor will then be elected to serve for the next four years. Any sitting prosecutor, however, will get a leg up on the competition in the general election whether interim or not. Having any experience in the position will be helpful to any of the prospective hopefuls to fill the newly-vacated role.

Former Prosecutor Eric Smith Facing Charges

Former Macomb County Prosecutor Eric Smith has been charged with 10 separate criminal corruption offenses relating to the alleged misuse of money forfeited to Macomb County. This money comes from the forfeiture of funds and property of criminal defendants, most typically people accused of drug trafficking. He is charged with conducting a criminal enterprise, five separate counts of embezzlement by a public official, tampering with evidence, conspiracy to commit forgery, accessory to a crime after the fact, and public office misconduct. There are three other defendants in this case for their alleged acts that contributed to these crimes. Smith has been arraigned on the ten charges and a $100,000 personal bond has been set. His passport has been seized by the court and he is not allowed to leave the state of Michigan during the pendency of his case. He was arraigned at 41B District Court in Mount Clemens. He has since resigned from his position at Macomb County Prosecutor amid these charges, opening the way for a new prosecutor. Jean Cloud who was Smith’s lead trial attorney has been serving as the active prosecutor until an interim is named.