Michigan Criminal Attorney Blog

Sentencing in Michigan Felony Cases

2010-04-20T16:07:08Z

The trial judge in People v Pinkney sentenced defendant Jamar Pinkney to 35-80 years after a jury found him guilty of second degree murder and a handful of other charges. Because the defendant used a gun in the commission of the crime and the jury found him guilty of felony firearm, the defendant must serve an additional 2 years, for a minimum sentence of 37 years before he will be eligible for parole. Felony firearm charges essentially arise when a defendant uses a gun while committing a felony. Michigan law does not allow this 2 year felony firearm sentence to run concurrently with the larger felony sentence. Therefore, the defendant convicted of felony firearm must always serve an additional 2 years in prison. This is a mandatory sentence, and a trial judge does not have discretion to sentence a defendant to less than 2 years for a felony firearm conviction.
The judge has wide latitude to sentence for a second degree murder conviction. After a felony conviction, the probation department interviews and assesses the defendant, then makes a recommendation to the judge on the proposed sentence. This recommendation is just that, and is not binding on the judge. The judge also considers the sentencing guidelines. These guidelines are comprised of a number of variables and considerations. They depend on the crime committed, how the crime occurred and the defendant's previous record. Both the prosecution and the defense have an opportunity to score the defendant and challenge the proposed guidelines if they disagree with the guidelines as drafted by the probation department. Ultimately, the judge has the final decision as to any disputed variables within the guidelines. In People v Pinkney the judge exceeded the guidelines, after giving his reasons for doing so on the record. At the sentencing, victims, the defendant and lawyers for both sides have an opportunity to explain why they think a sentence is appropriate. Judges can also consider other evidence such as written letters when determining the sentence. Sentencing is a very important part of the criminal process and should be carefully considered by a defendant and her attorney. Make sure that you consult with an experienced criminal attorney before you or a loved is sentenced in a Michigan felony case.
Judge slams door on killer dad.

To view the contents on www.detnews.com, go to:
http://detnews.com/article/20100415/METRO01/4150467/Judge-slams-door-on-killer-dad

Cross Examination in Michigan Criminal Cases

2010-03-31T17:00:56Z

Criminal trials in Michigan will always involve evidence, some of which will come in via witnesses. Defendants have the right to cross examine these witnesses. This right means that a defendant, usually through her attorney, can question and often discredit a witness. There are many ways to cross examine a prosecution witness. This might include using the witness testimony from the preliminary examination and comparing it to their trial testimony. Any inconsistencies, particularly on critical issues, may lead the judge or jury to give less or even no weight to the offered testimony. This is a subtle skill, one that lawyers take many years to perfect. It is most effective after an attorney has had an opportunity to cross examine hundreds or even thousands of witnesses in trial, deposition, preliminary examination and other sworn testimony settings.
Likewise, if the defense puts forth any witnesses, the prosecution may cross examine them. The same techniques apply, with the prosecutor looking for differences from prior statements to challenge testimony from the defense witnesses. Proper preparation by the defense attorney is key to help combat the weaknesses in the defense testimony that the prosecution will likely attempt to exploit. Sometimes the defense attorney will elicit seemingly negative aspects of a defense witness' testimony. This way, the prosecution cannot get the "ah hah!" moment when the witness is confronted with something that appears negative for the defense. If the fact comes out voluntarily through the defense attorney's questioning on direct exam, the jury will not view it as damaging to the defense.

Doctors testify in fatal shooting trial; possible sex abuse at issue.

To view the contents on www.freep.com, go to:
http://www.freep.com/article/201003311354/NEWS02/100331047

Michigan First Degree Murder Case

2010-03-31T16:58:05Z

In a closely watched Michigan murder case, Jamar Pinkney took the stand in his own defense. People v Pinkney involves allegations that Jamar Pinkney fatally shot his son, Jamar Pinkney, Jr after his son admitted to improperly touching his 3 year old sister. While the defendant was charged with murder in the first degree, felony firearm and felonious assault, the defense is countering that the shooting actually constituted manslaughter. The defendant testified that he lost control after learning of the admitted molestation of his daughter, resulting in the beating and shooting of his son. The jury can consider all testimony and evidence. If the jury is convinced that the defendant acted in the heat of passion, they could convict him of manslaughter. Various witnesses testified essentially consistently that Jamar Pinkney, Sr did not exhibit any signs that he might commit such a crime in the three hours leading up to the shooting. Instead, the witnesses agreed that he sat and talked to his son, his son's mother and others while they tried to determine how to handle the alleged sexual assault.
To view the contents on www.detnews.com, go to:
http://detnews.com/article/20100331/METRO01/3310385/

Penalties for Drunk Driving in Michigan

2010-01-31T22:41:44Z

In a previous post we offered a general overview of drunk driving law in Michigan. In this entry we will explain the basic penalties for various drunk driving violations. The two most common first time offenses related to drinking and driving are Operating While Intoxicated (OWI) and Operating While Visibly Impaired (OWVI). OWI convictions can carry a fine of $100 to $500 and one or more of the following: 1) up to 93 days in jail; 2) up to 360 hours of community service; 3) driver license suspension for 30 days plus further restrictions; 4) possible vehicle immobilization; 5) possible ignition interlock; 6) 6 points on your driving record; and 7) $1,000 Driver Responsibility Fee for 2 years.

OWVI is a lesser charge than OWI and the punishment involves a fine of up to $300 and one or more of the following: 1) up to 93 days in jail; 2) as much as 360 hours of community service; 3) driver license restriction for 90 days; 4) possible vehicle immobilization; 5) 4 points on your driving record; and 6) $500 Driver Responsibility Fee for 2 years.

The penalties increase significantly for any 2 such convictions within 7 years. Most importantly, 3 alcohol-related offenses within your lifetime are a felony and carry mandatory jail time.

Alcohol-related offenses that cause death or serious injury are also felonies. An accident resulting in death includes a sentence of up to 15 years and one resulting in serious injury can result in a 5 year sentence. A special exception is carved out for a drunk driving accident that results in the death of an emergency responder. This crime carries up to a 20 year prison sentence.

Courts are imposing stiffer penalties for these crimes everyday. This makes it imperative that you seek out competent legal representation as soon as you are able.

Michigan Drunk Driving Overview

2010-01-26T01:48:06Z

Each year, nearly 50 thousand Michigan drivers are charged with impaired driving offenses. While people generally think of alcohol intoxication as the only way a person can violate this area of the criminal law, infractions can occur because of driving after ingesting illegal drugs and even certain prescribed drugs. This entry will act as a broad overview of this very complex subject. If you find yourself charged with impaired driving contact a lawyer immediately.

Alcohol and drugs effect each of us differently. Lack of sleep or food can make a person more susceptible to the effects of drinking. It is always a good idea to have a designated driver, but if you are reading this entry, you or a loved one may be facing a drunk driving charge. Having an attorney who understands the science behind drunk driving cases is important. The Draper Law Firm regularly represents drivers charged with alcohol related offenses. We also act as counsel for insurance companies and bars where alcohol consumption is at the center of a civil lawsuit. Because of this nearly two- decade experience, our attorneys can look at the lab results and other scientific evidence to determine whether an expert would assist the defense of the impaired driving offense. We also have relationships with top local toxicologists who can review the case and, if necessary, testify at trial.

A Preliminary Breath Test (PBT), is often offered at the scene by a law enforcement officer. If you refuse the PBT you will be charged with a civil infraction and be fined up to $150.00. The PBT is not a test that will be used at trial, but it gives the officer valuable information and can lead to further testing such as a Breathalyzer or a blood test. Just because a driver "passes" a PBT, does not mean that they cannot be checked for some other type of chemical intoxication.

Michigan has an Implied Consent Law, meaning that all drivers are considered to have consented to a chemical test to determine bodily alcohol content. Refusal of the test will result in a suspension of driving privileges and 6 points on your driving record.

There are a number of different charges that fall under the broad umbrella of "drunk driving." Operating While Visibly Impaired means just that, that the driver has her ability to operate a motor vehicle visibly impaired by alcohol or drugs. Operating While Intoxicated means that alcohol or drugs have substantially affected your ability to drive, usually shown by a blood alcohol content above 0.08 or a positive drug test. There are separate rules and conditions for drivers under the age of 21. If you are a young person charged with such a crime, ask your attorney about the special ramifications on your license and your future. Young adults have specific concerns and some additional ways to resolve cases based upon their youth.

Appearing in a Michigan Criminal Court

2010-01-25T00:06:27Z

When you have a scheduled court hearing in a criminal case, you need to take it very seriously. Unlike a civil case where you may only appear in court for a settlement conference and then trial, in a criminal case the defendant is required to appear at each of the sometimes numerous steps along the way. These can include the arraignment, the pretrial, the preliminary examination, the arraignment on the information, the final pretrial and all motions. Besides checking with your lawyer to find out the time, date and location of the hearing, you should consider your personal appearance. While it may not seem fair, the judge, jury and prosecutor will assess you based upon how you look. The best plan is to wear something clean and professional. Treat this court appearance the way you would treat a job interview. A good visual impression will likely mean that you are going to get the best deal, sentence or verdict that you possibly can. How can you do this?

Start with any body piercings. While you may love that nose ring, the judge probably will not. Take out any facial hardware other than earrings. Never wear shorts, denim or t-shirts, particularly ones with political or humorous statements. If you are a man and have a suit, that is almost always the best choice. If you do not own a suit, dress pants and a button down shirt will work just fine. Women should wear a conservative dress or suit. If you have a mohawk, this is the time to wear it down or slicked back. If you have a bunch of tattoos on your arms or legs, do your best to cover them up. You do not want the judge or jury to rate you based on body art.

Check the court website prior to your hearing to see if they allow cell phones in the courthouse. Some courts allow only phones without cameras, others outlaw cell phones entirely. Make sure you know the rule, especially if you are getting dropped off. I have had clients who have been forced to hide their cell phones outside in the bushes because they did not have a car at the court and the court did not have storage lockers. Fewer courts have such lockers, so do not count on this accomodation. The rules are really simple: plan ahead, find out when and where you are to appear and make sure you put your best foot forward so your experience with the criminal justice system is as painless as possible.

Aggravated Stalking in Michigan

2010-01-14T01:00:20Z

In a previous post, we discussed basic misdemeanor stalking in Michigan. If certain elements are met, the charge may increase to aggravated, or felony stalking. Because it is a felony, it carries enhanced penalties including up to 5 years in prison and a fine of $10,000.00. Aggravated stalking includes the typical definition of a willful course of conduct involving repeated harassment of another that would cause that individual to feel terrorized, frightened, intimidated, threatened, harassed or molested. The course of conduct is a pattern involving 2 or more instances of contact. The contact can take many forms, the most common being visiting a person's home or workplace or contacting the person by phone or email.
What makes stalking a felony is when the alleged stalking violates a restraining order, injunction, condition of probation or parole. It can also become a felony if a credible threat is made against the victim or the victim's family. A threat is called credible if it includes a threat to kill or seriously injure another and importantly, that causes the purported victim to reasonably fear for his or her safety. This excludes a joking claim that you are going to "kill" your friend for eating the last brownie at a party.
The penalty can increase to a 10 year prison term if the victim is less than 18 years of age and the alleged stalker is 5 or more years older than the victim.
Felony stalking is a very serious matter, with the real likelihood that the prosecution will seek a significant term behind bars. If you or someone you know is charged with this crime, get help from a Michigan criminal defense attorney immediately.

Stalking Laws in Michigan

2010-01-05T01:50:54Z

With the increasing modes of electronic communication available, charges of stalking are on the rise. In Michigan, misdemeanor stalking means a series of two or more separate noncontinuous acts involving harassment of another that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed or molested and actually causes the victim to feel that way. MCL 750.411h.

The 2 or more acts must be unconsented contact and may include any of the following:

appearing within the sight of the victim;

visiting the individual's workplace or residence;

contacting the victim by telephone;

sending mail and electronic communication to the individual.

If convicted of basic misdemeanor stalking, the penalty can be imprisonment for up to 1 year and/or a fine not to exceed $1,000.00. The punishment can increase significantly if the victim is a minor and there is a 5 year age gap. These facts turn the acts into a felony punishable by 5 years in prison and a fine up to $10,000.00. Misdemeanor stalking convictions can include a 5 year term of probation and court-ordered psychiatric treatment or evaluation. With texting, Facebook, Myspace, email and instant messaging, this crime can be quickly committed. Of course, as with all criminal matters, there are available defenses.

If you are charged with any type of stalking, immediately refrain from all contact with the alleged victim. Next, contact a Michigan criminal defense attorney. Your first inclination might be to explain to the police how this is just one big misunderstanding. Fight this urge to tell the authorities your side of the story. Your initial explanation should be to your lawyer. Save all of the allegedly offending communications (texts, emails, etc.) and provide a copy to your attorney. While this may seem like a petty complaint by a former friend or ex, law enforcement and the courts take it very seriously.

Psychiatric Examinations in Michigan Murder Cases

2009-12-08T19:35:31Z

In Michigan, defendants charged with murder may be ordered to undergo a psychiatric examination. The People will likely have a state sponsored doctor conduct an exam, and likewise, the defense will often request a similar study of the defendant. Sometimes the issue is the defendant's state of mind at the time of the alleged crime, other times the question is the defendant's general ability to tell right from wrong. The court may also inquire as to the defendant's ability to stand trial, whether she understands the charges against her and whether she is competent to stand trial. In People v Pinkney, the defendant was examined for criminal responsibility and competency to stand trial. These examinations may last a number of hours and take place over a period of days or weeks. The findings may spur a battle of the experts, that is if the defense and People's experts disagree as to the defendant's mental state.

To view the contents on www.wwj.com, go to:
http://www.wwj.com/Pinkney-To-Undergo-Evaluation-Before-Murder-Trial/5845939

Preliminary Exam Michigan First Degree Murder

2009-12-01T19:01:18Z

The case of People v Pinkney progressed to the preliminary examination stage on December 1, 2009. Attorneys David Draper and Corbett Edge O'Meara held the examination. In Michigan, the preliminary exam is the People's opportunity to produce enough evidence for the district court judge to determine whether there is sufficient evidence to bind the defendant over for trial in the circuit court. Preliminary exams are only held in Michigan felony cases. They are often waived in cases where the defense would rather not make a permanent record of the alleged crime. Sometimes, the defense suspects that a witness may not be available for trial, so it is advantageous to waive the exam. In other cases, the defense wants to hear all that it can regarding the People's case. Often after the exam, the defense will move to dismiss certain or all of the charges.

To view the contents on www.tv20detroit.com, go to:
http://www.tv20detroit.com/news/local/78283867.html

Michigan First Degree Murder Case

2009-11-18T18:20:06Z

In November 2009, an alleged First Degree Murder case captured the attention of residents of Michigan. People v Pinkney involved charges of a father shooting his son after learning of an alleged sexual assault. The alleged assault involved the defendant's 15 year old son and his 3 year old half sister. The defendant retained attorneys David Draper and Corbett Edge O'Meara to defend him in this incredibly difficult case. As the case progressed, it took on a life of its own, drawing coverage from CNN, The Detroit Free Press, The Detroit News, Associated Press, Court TV, Fox2, WXYZ TV, WDIV TV and numerous other media sources.

To view the contents on www.tv20detroit.com, go to:
http://www.tv20detroit.com/news/70427117.html