Michigan Criminal Defense Lawyer Blog

On both my website and in this Blog we have discussed the difference between Misdemeanor and Felony Cases, and examined various aspects of each in detail. This article will be more of an "overview" post, providing a look at how the various parts of a Misdemeanor case fit together. The next article will, in turn, examine How a Michigan Felony Case Works.

In my nearly 20 years as a Criminal Defense Lawyer, I have handled pretty much every kind of Misdemeanor there is, and even some I didn't know existed. What follows is an explanation of the procedure that is common to all Misdemeanor Cases, at least in Macomb, Oakland and Wayne Counties, where I practice.

Most, but not all Misdemeanor Cases begin with an Arrest. Depending on the usual procedure of any given Court, and/or the type of Charge, a person can be taken to the Police Station, processed, and released without having posted any Bond, or after having posted a small, nominal Bond. In other cases, particularly DUI matters, the person may be held until they are sober enough to be released. Still other Courts require anyone arrested to be brought before a Judge or Magistrate (sometimes this is done by video from the Jail or Police Station) to be formally Arraigned on whatever charge or charges they face, and have the Bond, and it's attendant Conditions, set.

Sometimes, a person will not be arrested, but given a Citation (Ticket). The Citation will advise them as to when they should contact the Court. In other cases, a person will not even be given a Citation, but will be told that they'll receive something in the mail. This means that they will either be notified to appear directly, in Court, or to go to the Police Station to be "booked."

Whether by Arrest, or Court Notice or notification to first appear at the Police Station, there is usually no doubt when a person has been formally charged with a Misdemeanor.

A Pre-Trial is the first Substantive (i.e. important) proceeding in a Misdemeanor Case. Sometimes, certain Courts will combine the Arraignment and Pre-Trial proceedings on the same date.

Either way, the Pre-Trial is an opportunity for the Defense Lawyer to meet with the Prosecutor and discuss whether there might be a way to work the case out without having to go through a full-blown Jury Trial. The goal, or course, is for each side to compromise a little and hopefully come to an agreement that is fair to both sides, which usually means some kind of Plea Bargain.

Continue reading "Misdemeanor Cases in Michigan from Start to Finish - Putting the Pieces Together" »

As part of an ongoing series of "Short Version" Blog articles which summarize the essential points from previous, full-coverage versions of the same subject, we'll turn to the subject of Pre-Trials in Misdemeanor Cases. In the full-version Blog posts on this subject, we broke the subject into 2 parts: Part 1 dealt with the various technical terms involved in a Misdemeanor Pre-Trial, and Part 2 dealt with what happens when the Prosecutor and the Defense Lawyer discuss how to resolve a Criminal Case.

In my Practice as Criminal Defense Attorney, I almost exclusively handle cases in Macomb, Oakland or Wayne Counties. On occasion, I'll handle a matter in St. Clair, Lapeer, or Livingston County. My point is that what I write about in this Blog really arises from my day-to-day experience in the Metropolitan Detroit area.

The term "Pre-Trial" is both descriptive and helpful in understanding the nature and purpose of the proceeding. A Pre-Trial is, at the heart of the matter, a meeting between the Defense Lawyer and the Prosecutor to discuss the issues involved in any particular case, and how they can be worked out. In practice, the Pre-Trial is a meeting pre, or prior to, an actual Trial, to see if the whole Trial thing can be avoided.

The vast, vast majority of Criminal Cases are resolved through a Plea, or Plea Bargain. Only a relatively small percentage of cases actually go to Trial and result in a verdict of either "Guilty" or "Not Guilty." Most Plea Bargains are worked out at the Pre-Trial stage. Therefore, the Pre-Trial is very important in the Criminal process.

When we talk about a "Plea Deal" or a "Plea Bargain," we're talking about everything from a way to keep the whole case off of someone's record, to reducing the charge, or just working out a deal to keep someone out of Jail.

Sometimes, a Pre-Trial results in the scheduling of another Pre-Trial, as both sides work toward a resolution. Sometimes, a matter will be scheduled for a Trial, with the hope that some deal can be worked out to avoid the expense and hassle involved in actually trying a case. This is not to say that Trials are not necessary; people are sometimes charged with crimes of which they are not guilty. Those cases, while more the exception rather than the rule, should be decided after a full airing of the facts.

It is during the Pre-Trial that both the Prosecutor and the Defense Lawyer learn what the other side has by way of evidence, witnesses, and the like. Sometimes one Party or the other discovers that their side of the case is much stronger than they thought, or, on the flip side, that their side of the case isn't nearly as good as they thought. Whatever the facts, the Pre-Trial really represents the first, solid opportunity for each Party to get a clear picture of both the strengths and weaknesses of both sides of a Criminal Case.

In the end, most Pre-Trials result in a Plea Bargain that puts the case to rest. As an example, the majority of Drivers charged with a First Offense Drunk Driving are able, through the negotiations of their Lawyer, to avoid the penalties associated with that Offense and instead work out a Plea Bargain to the less serious charge of Impaired Driving.

Whether a case is strong, or weak, and whether a Plea deal or Plea Bargain can, or even should be worked out, are all part of what make the Pre-Trial so important. It is the first and best opportunity for the 2 sides to get together and take and honest, hard look at the case and work toward its final resolution.

In Part 1 of this article, we began examining the Pre-trial process, and what's involved. In this second part of the article, about Pre-Trials, we'll take a closer look at how the Prosecutor and the Defense Attorney negotiate at a Pre-Trial, and what happens when those negotiations are successful at producing some kind of deal, as well as what happens when they are not.

As we embark on the second part of this article, remember that we were using, in the first part, an example wherein a guy was arrested for Drunk Driving (really OWI, although pretty much everyone uses the term "DUI") and he had already been Arraigned, hired a Lawyer, and checked into Court on the date of his Pre-Trial (remember, back in Part 1 of this article we decided that we would speak of "Pre-Trial Conferences" as simply "Pre-Trials"). His Lawyer has gone into a conference room in the Court to meet with the Prosecutor, and after having reviewed all of the Prosecutor's evidence, is ready to start discussing the case and negotiating with the Prosecutor. We'll pick up there.

In our Drunk Driving (DUI) example, the Prosecutor may look to the Defense Lawyer and point out that the Defendant was caught on Police-car video swerving all over the road, and that based upon all of the evidence the case looks "airtight." In response, the Defense Lawyer may admit as much, but will point out that the Defendant was very cooperative with the Police Officer, and that his Bodily Alcohol Content (BAC) was not very high. Then the Defense Attorney may then simply ask the Prosecutor if he or she will agree to reduce the charge from OWI (Operating while Intoxicated) to OWVI (Operating While Visibly Impaired). This reduction in the severity of the offense to which the Defendant pleads, from the more serious one with which he was originally charged, to one less severe, is called a "Plea Bargain." Even though, from the Prosecutor's point of view, the case looks "airtight," unless the Defendant just rolls over and Pleads guilty, the matter will still have to go through a Trial.

This is where, no matter how "airtight" the Prosecutor's case appears to be, the Defense Lawyer has some leverage. Even a relatively simple and straightforward case eats up a lot of time if it is decided at Trial. By agreeing to reduce the Charge and agreeing to a Plea Bargain, the Prosecutor avoids getting caught up in a log-jam of cases. Sure, the Prosecutor would like to have everyone come in and Plead guilty-as-charged, and the Defense Lawyer would like to walk into Court and have every case against everyone of his or her Clients dismissed outright, but that almost never happens. The majority of Criminal Cases, like the sale of houses, are finalized through compromise and negotiation. Each party has to give up a little of what they want in order to facilitate a deal.

At this point, the discussion between the Prosecutor and the Defense Lawyer are squarely within the scope of what is meant when the term "Pre-Trial" is used. Of course, in our DUI example, the Prosecutor may (and, absent anything unusual, like a prior DUI conviction, usually will) agree to the Plea Bargain, or they may not. Let's continue and see what happens in either situation.

Continue reading "Pre-Trial in a Typical Michigan Misdemeanor Case - Part 2" »

In Part 1 and Part 2 of a previous Blog Post, we examined the very first proceeding in a Criminal case, known as the Arraignment. This article will deal with the next step in all Misdemeanor cases, called the "Pre-Trial." In particular, we'll be talking about what's known as a "Pre-Trial Conference." Because there is a lot of ground to cover, we'll split this discussion of Misdemeanor Pre-Trials into 2 parts. In a future post, we'll explore Felony Pre-Trials. Although a Pre-Trial is substantially similar in both Felony and Misdemeanor cases, there are enough differences between them to merit dealing with each in a separate article.

We can learn a little about the purpose and meaning of a Pre-Trial just by looking at its name. Technically speaking, there are two kinds of Pre-Trials. The first, both in terms of occurrence and how we'll examine them, is called a "Pre-Trial Conference." This is mostly what we'll be discussing in both parts of this article. The second, which takes place second, if at all, are called "Pre-Trial Proceedings." "Pre-Trial Conferences" always occur in a Criminal Case. "Pre-Trial Proceedings" frequently do not happen in a Criminal Case. We'll explore that term in the second part of this article, but the focus of our discussion and examination in both parts of this article will be on the Pre-Trial Conference, which, throughout this article, we'll mostly and simply be calling the "Pre-Trial."

The most important word here is "pre." "Pre-Trial" means "before trial." This means that before a case actually goes to Trial, there is at least a Pre-Trial Conference. The whole point of this Conference is to determine if there is a way to work out or resolve the case without the need for an actual trial.

What actually takes place at a Pre-Trial Conference has little to do with any kind of Court hearing. The main purpose of the Pre-Trial is to bring the Prosecutor and the Defense Attorney together so that they may discuss the case and see if they can come to an agreement to resolve it without the need to have the case decided through a trial. This can perhaps be better understood by looking at an example.

Let's say a person has been Arrested and Charged with a DUI. In Michigan, the actual charge is OWI, or Operating While Intoxicated. For our purposes, we'll skip over the details of the Stop and the Arrest, and assume the Evidence against the Driver (the Defendant) is rock-solid.

Continue reading "Pre-Trial in a Typical Michigan Misdemeanor Case - Part 1" »