I’m not accusing anybody of anything.
I’m assuming it’s an oversight. But I filed
Q: Do your clients often offend again?
the motion to reopen the case and say, “He
needs to be resentenced to 7411 because
this was what his plea bargain was.”
So we got it fixed, and that reduced my
client’s pending marijuana charge to a first
offense, which he promptly pled guilty to and
went on about his way. And justice was done.
A: Some do. Some don’t. [Many] recognize
that they are on very thin ice. People get
charged with crimes often as a result of the
worst day in their life. Here’s a good example.
My client was charged with assaulting
her boyfriend with a knife during a fight.
This is felonious assault. It’s a four-year
felony. My client has no criminal history,
and frankly, if she gets convicted of a four-year felony, she’s going to have a terrible
time getting a job and getting into school.
The case is being charged under one of
Michigan’s domestic violence laws. In order
for her to be convicted under domestic
violence assault, rather than simple assault,
they have to prove that these two people
are in a dating relationship. That doesn’t
require that you be married, but it requires
that you be in a relationship characterized
by affection and involvement.
Q: That’s the definition of a dating
A: Yes. So I have this young man on the
stand, and he’s testifying about her, and I ask
him, “You’re not in love with her, are you?”
and he says, “Oh no.” I said, “In fact, you’re
just with her for the sex, aren’t you?” and he
says, “Yeah.” I said, “You don’t think of her as
your girlfriend, do you?” and he says, “No.” I
thought she was going to get right up and go
after him again, because she clearly thought
that they had something going on.
Anyway, at the end of the exam, the
So we resolved the case with two
proceeding, the judge says, “Well, I’m
going to find probable cause.” But she
added, “You know, I’ve got to tell you, I’m
not sure that the prosecution is going to be
able to prove the [dating relationship].”
The judge, as judges will, was trying
very hard to resolve the case. I had given
her the transcript of the preliminary exam,
the probable cause proceeding. I told her
that they cannot prove dating relationship
here, and she agreed that maybe they
wouldn’t be able to do it, but you never
know [because] it’s a jury question.
misdemeanors under diversion programs,
and at the end of the year both offenses
Q: With those misdemeanors, they go to
something like anger management?
A: Actually, the judge sort of crafted
her own diversion program for my client
and basically said, “Stay out of trouble.
Stay away from this guy and go to anger
management,” which she did. And I told
her, “Be a little more fussy about guys.”
Q: Tell me about your federal cases.
A: The federal cases are always more
complicated factually. They’re more
complicated legally. There’s always much
more work expected of an assigned attorney.
But I just had a case—my client was a
City of Detroit policewoman charged with
participating in what was alleged to be a
very large auto insurance fraud scheme.
Cars were supposedly purchased, insurance
fraudulently obtained, and then there would
be these staged accidents or thefts of the
car and the filing of insurance claims, which
were fraudulent, because the cars were overinsured, and the accidents were sketchy, iffy.
The government actually indicted my
client separately and then indicted the
rest of the defendants seven minutes
later, all of them together. I believe the
government’s intention was to get a guilty
plea from my client and then turn her into
a witness against the others.
We plowed through 2,500 pages of
Q: What’s your trial strategy?
insurance reports and all the rest of this,
and she tells me right from the start, “I did
not do anything wrong.” She said, “The only
thing I did was I bought these cars from this
guy. I bought them from him because I have
crappy credit, I can’t get a car loan.”
These federal cases are scary, because
the sentences are so much higher than the
state stuff, but my client says to me, she
says, “You know, I have a good job with
benefits.” She’s a single mother. She said,
“Why would I jeopardize what I have to do
something with him?” And I went, “OK. All
right. Let’s go to trial.”
So we go to trial and she’s acquitted of
the conspiracy to commit insurance fraud,
and she’s acquitted of one count of mail
fraud, which is the sending of the insurance
checks through the mail, and the jury hangs,
10 to two, to acquit her on the other count.
This is a very good result. The
government immediately announces they’re
going to retry her on the hung count, and
then indicts her into the other case. That
creates an issue about double jeopardy.
She’s already been acquitted of the scheme
to defraud in her first case, and it’s the same
scheme to defraud in the other case.
This is a terrific legal issue from a
criminal defense standpoint. So I file a
motion to dismiss her out of the second
case on the basis that the jury has already
decided in the first case that she wasn’t a
participant in this scheme to defraud.
The trial court denies my motion, so I
take an interlocutory appeal to the Sixth
Circuit Court of Appeals in Cincinnati. I file
my pleadings, and the week before the
prosecutors’ response is due, they call and
say, they think they’d like to offer dismissal
of the charges in the second case. And I say,
“Well, that would be terrific, but you have to
throw in the remaining count from the first
case, too,” and there’s some hemming and
hawing, but they agree to do it.
A: You have to know your client; you have to
know your case. Sometimes the prosecution’s
case is so loosey-goosey that the best thing is
to just sit there and be quiet.
I’ve been doing this pretty consistently
since 1986, and I still love what I do.
I remember sitting in constitutional law
while I was in law school and just loving
it. It was so pure and so important. Most
attorneys never get a chance to litigate
constitutional principles, but the only
lawyers mentioned in the Constitution are
in the Sixth Amendment, the right to the
assistance of counsel.
That’s what we do, because the power
of the prosecution is so enormous and so
unchecked. It is absolutely unchecked. You
know that image of that Chinese student
standing there while the tank rolls right up
to him? That’s how I feel about the criminal
justice system. The only thing protecting my
client from the power of the state, let alone the
federal government, is his or her defender.
This interview was edited and condensed.