Michigan Criminal Defense Lawyer Blog
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:
- That there is “Probable Cause” to believe a Crime has been committed, and
- 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.
In practice, the overwhelming majority of Preliminary examinations are “waived,” meaning that the Defendant does not actually hold a Hearing. This is so common that more and more District Courts are scheduling “Pre-Exam” conferences before the actual exam date to avoid clogging up the Court system with Victims and Witnesses, who are almost always inconvenienced for a proceeding that isn’t held.
All Felony Cases must be handled and resolved in the County’s Circuit Court. This means that after the Preliminary Exam phase, the matter is transferred “up” to the County Courthouse. If a case is dismissed at the Preliminary Exam phase, or if there is a Plea Bargain reducing the charge from a Felony to a Misdemeanor at the District Court, then of course, no transfer occurs.
Once the Case is transferred to the Circuit Court, it will be scheduled for either another Arraignment, or a combination Arraignment/Pre-trial. What this means is that the first Circuit Court date is an opportunity for the Defense Lawyer to meet with the prosecutor who will be handling the case for the rest of its existence. The Pre-Trial affords the opportunity for the Prosecutor and the Defense Lawyer to discuss resolving the case by working out some kind of Plea Bargain, or a Sentence-Bargain. If that fails, then the case is set for a Trial. The Pre-Trial phase in a Felony Case is really no different that the Pre-Trial phase in a Misdemeanor Case.
Next, one of 3 things happens:
1. Either the case is resolved by a Plea, or –
2. It is set for and goes to Trial, after which a person is found –
3. Either “Guilty,” or “Not Guilty.”
There is a 4th possibility, although rather rare at the Felony Pre-Trial stage, and that is that the whole case winds up getting Dismissed.
If a person enters a Plea to some charge, then the matter will be scheduled for a Sentencing at some future date.
If a person is found “Guilty” after a Trial, then the matter will likewise be scheduled for a Sentencing at some future date.
If a person is found “Not Guilty” after a Trial, or if the Case is somehow Dismissed, then the whole thing is over and there’s nothing left to do except collect any outstanding Bond money that was posted after the Arraignment.
When there has been a Plea (or a finding of “Guilty”), before the Sentence can be imposed by the Judge, a person must undergo what’s called a “PSI,” or Pre-Sentence Investigation. This phase is required by Law in all Felony Cases (and certain Misdemeanors, like DUI’s). The PSI requires that a Probation Officer does the “investigation,” which results in a PSI Report. That Report, amongst other things, contains a written Sentencing Recommendation, advising the Judge exactly what kind of Sentence should be imposed, at least from the Probation Department’s point of view.
I could write an entire article about this phase of the case (in fact, I probably will), but for our purposes here let me be clear about one thing: The PSI is, in my opinion, the most important part of any case. Beyond the mechanics of the process, the Sentencing Recommendation is essentially a blueprint for what almost all Judges, in almost all cases, will do. Unless there is some error in the PSI Report, anyone going to Court for Sentencing can expect the Judge to follow the Recommendation pretty much to the letter. That’s not to say that a good Lawyer can’t get a Judge to lay off a recommended Jail Sentence, or otherwise lighten up the consequences a little, but even in those cases, the Judge will not be making significant, wholesale deviations from what’s being recommended by the Probation Department.
This means, then, that a Defendant’s best bet is to do a good job at the PSI phase, rather than just wait to see what happens in Court. In my Practice, I thoroughly prepare my Clients for the PSI. This involves another office appointment, and a good hour or two going over things. I certainly wouldn’t waste the time if I didn’t think the benefit was there. Remember, it’s a pretty fair statement that pretty much every Judge, in pretty much every Case, will follow the PSI Recommendation to the letter. Deviations, if any, are only minor. It should be obvious then, that working towards a favorable and lenient Recommendation has the greatest potential for a huge payoff.
I often put it this way: If a Lawyer prepares the Client well, and the person gets a favorable and lenient Sentencing Recommendation, even if their Lawyer has his or her lips sewn shut, it’s quite likely that the Judge is going to follow the Recommendation anyway, so a favorable Sentence is likely. On the other hand, even if a person appears in Court with the best, most well-spoken and charismatic Lawyer around, if the Sentencing Recommendation calls for a tough Sentence (and assuming it’s not incorrect in some important way), then for all the talk and banter, the Judge is going to impose, if not the very Sentence called for, at least something substantially similar.
Preparing for the PSI is extremely important. Anyone who’s ever been to Court before and had a PSI done before they were Sentenced knows firsthand that it pretty much becomes the “script” for what’s going to happen at the Sentencing. All the talk after the fact is, by and large, a waste of breath. Like so many things in life, success here, at Sentencing, is best guaranteed by diligent and proper preparation.
The steps of a Felony case, begin with an Arrest (or not), followed by the Arraignment, at which a person is charged and Bond is set. The next step is the Preliminary Examination, followed by a Circuit Court Arraignment and Pre-Trial. Either a Plea is entered, or the matter goes to Trial. If a person is found “Not Guilty” at Trial, everything ends right there. If a person is found “Guilty” at Trial, or after a Plea of some sort has been entered, they’ll have to return for the final step in any case – the Sentencing