Michigan Criminal Defense Lawyer Blog

In part 1 of this article, we began examining the role of the PSI in a Criminal case. We learned that the PSI, or Pre-Sentence Investigation, is a comprehensive process that ultimately results in written Sentencing Recommendation being made to the Judge presiding in any given case. We also learned that the PSI Recommendation could be thought of as a "blueprint" for what the Sentence will be, as almost every Judge out there follows that Recommendation to the letter, or extremely close to it.

Here, in part 2, we'll pick up where we left off, beginning with a look at how the Probation Officer interviewing someone is likely to perceive that person. We'll continue by examining why, in a DUI case, for example, how well or poorly a person scores on the legally required alcohol assessment test impacts what happens to them at Sentencing.

First, bear in mind that everyone showing up for a PSI has been convicted of a crime. Technically speaking, Probation only deals with convicted Criminals. This may seem too harsh or strong a label for someone who has, for example, received their first DUI, and it may not sit well with them, but it does not change the reality that no one is required to meet with a Probation Officer for singing too much in the church choir. A person needs to understand how they are perceived by Probation Officer who will be interviewing them, if they want to positively influence that Probation Officer's conclusions about them.

And make no mistake about it, there is a whole psychological profile to Probation Officers. They are an interesting group, and, whatever else, really are the single most important person in a Criminal case, in that they write the Recommendation that will, in almost every case, be followed by the Judge. Knowing how to deal with them, and understanding things from their side of the desk is an important component in producing a better Sentence.

An example of what not to do in a PSI applies to those first-time Offenders, like the 1st Offense DUI person we mentioned above. Most middle-class DUI Offenders have a hard time thinking of themselves as "Criminals." DUI is, after all, more a crime of bad judgment more than anything else. Almost anyone facing a DUI would never think of robbing or harming someone, or stealing anything. So these individuals, who lack any kind of criminal mindset, are typically horrified at the prospect of being considered, much less treated, as a "Criminal."

Continue reading "How to get a Better Sentence in a Michigan Criminal or DUI Case - Part 2" »

When a person is facing a Criminal charge, they usually have lots of questions. First amongst them, however, is some version of "what's going to happen to me?" In this article we'll take a step back, and instead of trying to answer the question "what's going to happen," we'll examine why whatever does happen, in fact happens. In other words, we'll try to find out why a particular Sentence is handed down in a Criminal case.

Having been a Criminal Lawyer for over 20 years, I certainly have learned a lot. And while I hated to be on the receiving end of these comparisons 15 or so years ago, the reality is that I know a lot more now than I did then. I have learned things that go way beyond knowledge of the Law itself. Often, what is most important in predicting the outcome of any specific case has more to do with where the case is pending, or the identity of the Judge to whom it has been assigned, rather than the rule of Law itself.

This is why, when we speak of Doctors and Lawyers and other professionals who have around 20 years experience, we say they're "hitting their stride." This is also why you'll never see a rich and famous person being represented by a newbie Lawyer. Think of any celebrity Criminal case; the Lawyer who stands in front of the microphones is always a seasoned veteran.

Yet for all that, I began to figure out certain truths about why cases turned out the way they did pretty early on in my career. Here's where anyone who has ever had a prior Criminal case will instinctively understand what I'm about to say, while everyone else will simply have to believe the logic of it:

What happens, meaning the Sentence that a person receives, in any case, is always either identical to, or nearly identical to the Sentencing recommendation sent to the Judge by the Court's Probation Department.

This bears some explanation.

In all Felony cases, and in many Misdemeanor cases (such as DUI), the Law requires that, prior to a person being Sentenced by the Judge, they go to the Court's Probation Department for an evaluation and interview, called a Pre-Sentence Investigation (PSI), and that the Probation Department, as a result of that process, generate a written Report and Sentencing Recommendation to be used by the Judge in Sentencing the person.

Continue reading "How to get a Better Sentence in a Michigan Criminal or DUI Case - Part 1" »

This article is the companion piece to the last Blog installment about Misdemeanor Cases - From Start to Finish. To begin with, its scope is limited by my experience in the types of Felony cases that I handle (what I call "light-to-medium severity"), as well as the fact that I limit my practice to Macomb, Oakland and Wayne Counties (with the occasional exception of a trip to Lapeer, Livingston or St. Clair Counties). In other words, this article will describe the typical chain of events in a Metro-Detroit area Felony charge for crimes less severe than murder, armed-robbery, and the like.

Just as with Misdemeanors, most, but certainly not all Felony Cases begin with an Arrest. An example of a Felony that often begins without an arrest is the charge of Embezzlement. Usually, these crimes occur in an employer-employee relationship, or something similar, and the Victim goes to the Police. Often during the investigative phase, the Police will call the person suspected of Embezzling, and want to speak with them. Whatever does or doesn't happen, once the case gets to the point of Charging the Defendant (which means obtaining a Warrant, signed by the Prosecutor), the Police will often again contact the person named in the Warrant and try to make arrangements for them to voluntarily turn themselves in.

Whether by Arrest or voluntary turn-in, the person to be charged is "booked" (mug shots and fingerprints) at the Police Station and then brought before a Judge or Magistrate in the District Court of the Municipality where the Offense is alleged to have occurred, to be Arraigned. The Arraignment is the first step in a case, and serves several purposes. It allows the person being charged to be told exactly what they are being charged with, what the maximum possible penalty is that can be imposed (as well as any mandatory minimum penalty) and to be informed of the Constitutional Rights. In addition, there is the setting of Bond, and the imposition of any Bond Condition (like a GPS tether, or a provision requiring the Defendant to have "no contact" with the alleged Victim).

By Law, within 14 days from the date of Arraignment, the next step, called a Preliminary Examination, must be held. This is unique to Felony Cases; there is no Preliminary Exam in Misdemeanor Cases. The Preliminary exam phase requires that the Prosecutor be able to come forward on that date and present enough evidence to the District Court Judge to prove 2 things:

1. That there is "Probable Cause" to believe a Crime has been committed, and
2. That there is "Probable Cause" to believe the Defendant (the person charged) committed it.

In practical terms, the Courts have interpreted this as meaning that the Prosecutor must be able to show the Judge that there is "Probable Cause" to believe a Crime has been committed, and that there is an honest, debatable "question of fact" that the Defendant committed it. This means that unless the Judge is satisfied that the case is so weak that Justice demands it's dismissal, the matter will be "Bound Over," or transferred to the County's Circuit Court.

Continue reading "How a Michigan Felony Case Works" »