Michigan Criminal Defense Lawyer Blog
In Part 6 of this series, we reviewed how the Pre-Sentence Investigation (PSI) Report and Recommendation is completed by the Probation Officer, and how the DUI Driver and his or her Lawyer review the Report and Recommendation in Court, before the actual Sentencing, in order to make sure that the information contained in that Report is accurate.
In this seventh and final installment, we will wrap up our series on the Steps in a Detroit-area (meaning Macomb, Oakland and parts of Wayne County) DUI case by looking at the the 8th and final step in any DUI (or other Criminal case, for that matter), where the Lawyer comments on the Sentencing Recommendation to the Judge at the actual Sentencing Hearing. After this step, the Judge pronounces the Sentence, and the person learns their fate…
8. Commenting on the PSI and Recommendation to the Judge at Sentencing.
As I noted in the previous installment, the PSI Report and Recommendation must be reviewed, in Court, on the day of Sentencing, by both the Defendant and his or her Defense Lawyer before the Sentence can be imposed. It must be reviewed for errors, and then returned to the Court Clerk. Once the case is called, the Judge will ask the Lawyer if he or she has reviewed the Report and Recommendation with their Client. The answer must be “yes, Your Honor.” Next, the Judge will ask something like, “are there any additions, corrections or deletions to be made?” Hopefully, the answer to this question will be “no, Your Honor,” but this is the time to update and correct anything about the person or their background that is not accurate.
Once the Report has been accepted as accurate, the Judge will then ask the Lawyer if there is anything he or she would like to say about the Sentencing Recommendation, and on behalf of his or her Client. This is where those skills I talked about (okay, admittedly more like “ranted” about) in the previous section become so important.
Leaving the self-serving personal endorsement made in the previous section behind, this is really where the persuasive speaking skills of the Lawyer count the most. You only get one chance to “make your case” to the Judge, and this is it. What kind of conditions a person will walk out of Court having to satisfy, and, indeed, whether they walk out of the Court at all, is decided right here. It is at this moment that anyone who bargain-hunted for a Lawyer will feel the regrettable sting of “you get what you pay for.” About the worst thing a person can say about the Lawyer they had is “I could have done that myself,” or “My Lawyer didn’t do anything for me; he (or she) just stood there!”
Beyond those all-important skills lies another thing that I think is almost equally important: The Lawyer should be very familiar with the Court were the case is pending. If not, then any Legal Fee paid to the Lawyer, however large or small, can more properly be called “tuition.”
This is precisely why I limit my Practice to Macomb and Oakland County, and only the following cities of Wayne County: Dearborn, Dearborn Heights, Detroit, all Grosse Pointe Municipal Courts, Hamtramck, Harper Woods, Livonia, Plymouth-Canton, Romulus, Westland and Wyandotte. I go to these same Courts over and over again.
Are there some cities nearby that aren’t listed? Absolutely. However, at this stage of the game, having run the same route for over 20 years, and having more than enough work to keep me busy, I have no inclination to go to any Court where I don’t know precisely how things work. I’m not into meeting some Judge for the first time.
Knowing the Court, meaning having been to the Court and having Practiced there regularly enough to be familiar with it, is important because it allows the Lawyer to have a good idea, based upon actual experience, rather than just guesswork, about what is going to happen in any particular case. A Client paying for that is buying experience. Hiring a Lawyer to go to a Court where he or she is not really familiar with how things work and the people there (like the Prosecutors and the Judges) is, as I said before, like paying the Lawyer’s “tuition.”
This is also relevant in terms of that allocution made by the Lawyer to the Judge. If a Lawyer has sat in a particular Judge’s Courtroom enough times, he or she will have observed how the Judge reacts to different kinds of statements. An example might help illustrate this point:
Some Judges react favorably, or at least not angrily, toward certain kinds of statements that make other Judges go nuts. Often, a Client whose legal situation could result in Jail time will remind his or her Lawyer that he or she is the sole support of the family, takes the kids to school, and the like, as they try and press upon their Lawyer how they just “can’t do go to Jail.”
There are some Judges, who, upon hearing anything like that, get angry and will interrupt and practically yell back something like “Don’t put that on me. Don’t try and use your situation as an excuse for your behavior. If all this is so important, you should have though about that before you went out and drove drunk for the second time. You are responsible for your actions, not me. If your kids don’t have anyone to take them to school, or to support them while you sit in Jail, that’s your fault, not mine. Do you really think trying to lay that on me is going to help you?”
Whatever else, it should be clear that such a Judge will not only NOT be persuaded by such a pitch, but will, be angered by it. Any Lawyer trying this kind of tactic in front of such a Judge has not only NOT helped the Client, but also likely hurt them. At a minimum, this has wasted the fleeting, golden opportunity to grab the Judge’s attention at allocution and do some good. If the Judge is really peeved, then things just go downhill from there.
Yet there are some Judges who are receptive to this kind of suggestion if it is put forth in a way that transfers responsibility from the Judge for possibly locking the person up to the person him or herself for making such an irresponsible, regrettable decision. How do you know? Only experience in that particular Court can tell. Anything else is just guesswork, at best.
Whatever the circumstances, this is the moment when the Defense Lawyer must really step up. After his or her performance, there will be little doubt about how well or poorly this part of the case was handled.
After the Lawyer speaks, the Judge asks the Client if there is anything he or she would like to say. If the Lawyer has done a good and proper job, then the Client can either say “no, Your Honor,” or make a short statement.
I will always have gone over with my Client going over what they should and should not say. What they should say depends in large part on the facts of their case, as well as where their case is pending and which Judge is hearing it.
There are some things they should not say. We just finished going over one example of that, and we noted that different Judges react differently to any such explanation. With some, it is an outright bad idea, while with others, it can be useful if presented correctly. “Correctly” depends on the Judge.
Yet there are some things that are a waste of breath and, while they won’t hurt a person, serve no useful purpose in bringing up.
Chief amongst them is ANY version of “I want to apologize to the Court.” Why? This is the Judge’s job. No DUI Driver has hurt the Judge personally. They haven’t offended the Judge. In fact, Judge Brian McKenzie in Novi will often say something like “you don’t need to apologize to me. They pay me a lot of money to sit up here…”
How about the DUI Driver apologizing to themselves, or their family? Doesn’t it make sense that, in most cases, the person hurt the most by a DUI is the person facing the charge? Isn’t the whole point of the DUI process in Court to make a person really feel the heat for what their actions could have caused, like an injury (or worse) kind of accident? And when that doesn’t happen (which is, thankfully, in the overwhelming majority of cases), the Court still, to varying degrees, make sure the person gets the message. At the very minimum, “getting” the message will cost a lot of money. Therefore, doesn’t it only make sense for a person to express intense regret over the consequences of their bad judgment and to assure the Court that in feeling that sting, the “message” has gotten through?
Of course it does! Yet putting all this together so that, in the span of a few short minutes, all of this can be effectively and persuasively communicated to the Judge is the job of the Lawyer. Beyond just being a mouthpiece, the Lawyer has to be a very good director and producer, as well.
Finally, when everyone else has spoken, it’s the Judge’s turn. The Judge’s words here carry weight. The Judge will be pronouncing Sentence, and his or her words determine, as we saw several installments back, when we examined the whole Probation Interview process, where the person is going. This has both figurative and literal meaning. However, the real significance will be felt later, when the person has to live with their Sentence.
Those dealing with a straight Probationary Sentence will no doubt enjoy the fact that they did not go to Jail. But that does not mean that everything is a cause for celebration. As we noted earlier, minimizing consequences is still the order of the day when staying out of Jail is pretty well assured. In such a case, if a person walks out of Court loaded down with all kinds of Probationary conditions, it won’t take long for them to start to hate having to do so much stuff, and to assess their situation by saying something like, “this is bull$4it.”
Again, anticipating and avoiding this kind of result to the extent possible is where a Lawyer’s experience matters. By experience, I mean experience handling DUI cases, in the Court where any given cases is pending, not drafting Divorce Judgments or trying Murder cases. The best brain Surgeon in the world is certainly NOT the person anyone would want for a coronary heart bypass.
So for all of my ranting, how does a person go about finding the right Lawyer? As I noted in the previous section, I realize that I’m not the Lawyer for everyone. And I’d like anyone who does ultimately hire me to select me, rather than just wind up with me. Yet far too many people, I’m afraid, “wind up” with some Lawyer by way of referral, or price shopping, or something other than an intelligent search.
You pick a Lawyer pretty much the same way you pick a new refrigerator or a new TV set. You do research. You check things out. In my case, you can pretty much read what I’m all about. Plenty enough other Lawyers have websites. If I were looking, I’d be wary of those whose primary sales pitch revolves around worn out platitudes like “tough,” “aggressive,” and “experienced.” If they don’t take the time to elaborate upon their approach to handling DUI cases, then that’s your first clue.
In such a case, the only way to learn more about such a Lawyer is to call their Office. Who answers the phone? Can and does that person answer any questions? Are they helpful? What do you learn from your call?
Then, compare what you’ve learned from your reading, research and phone calls. Be a discriminating, intelligent consumer. On my website, I’ve pointed out what I think are the 7 most important things to keep in mind when looking for a Lawyer. While they are all important, the 2 that I think are most relevant here, and I say this in part because we’ve spent enough time discussing experience, at least for purposes of this article, are:
1. That a person has to like and trust the Lawyer they hire. Even in the presence of ability and experience and an affordable Fee and skill and the like, a person has to feel comfortable with the Lawyer they choose to represent them. All those other things don’t matter much if a person does not feel that they can confide in and speak freely with their Attorney, and
2. That a person can trust his or her Lawyer, and feel confident that the Layer has their best interests at heart.
Make no mistake; it takes work to find the right Lawyer. Even from my side of the desk, while I find it flattering, at least for a moment, that a large enough number of people contact me and want to hire me for a DUI case outside the Detroit area, I have to realize they haven’t taken the time to read much of what I’ve written, as I make very clear the local nature of my DUI Practice. Yet simply because they have seen the sheer size of my blog and my website, and have are “impressed” by the sheer number of articles I have put up, they summarily conclude that I’m the guy for them.
Except that, if they had take the time to research me, even a little, they would know that I don’t handle DUI cases outside of Macomb, Oakland and parts of Wayne County. This is what I mean about being a good consumer. And the ONLY way to be a good consumer is to take the time to do your homework. After all, the decision of which Lawyer to hire is one that can have huge consequences for a long time, and even for the rest of your life. If a person takes any time to research a new refrigerator, or a new TV, doesn’t it only make sense that they should put in at least as much time researching Lawyers so that they make the right decision.
In the end, a DUI, even a 2nd or 3rd Offense DUI, does not have to be a stumbling block on the road of life, nor does it have to be too high a hurdle to get past. Instead, it can and should be used as a learning experience, or platform, from which a person can make those changes necessary to avoid a similar incident and make the best choices for their future.
This brings us to the end of our series of articles examining the steps in a DUI case. Before concluding, I should point out that my experience, and therefore the explanations I make and the examples I use, are based upon my Practice handling DUI cases in the Detroit-area. If there’s one thing a reader should take from my explanation of how to find the right Lawyer, it is that they should, in addition to everything else, be looking for and communicating with a Lawyer who regularly appears in the Court where their case is pending.
If I am in that group, please feel free to drop me an email at jrandalaw@gmail.com, or call my Office, Monday through Friday, anytime between 8:30 and 5, at 586-228-6523.