Limit The Power of The Prosecution

How does shoplifting become armed robbery?Those of you who follow my blog know that I attempt to highlight our criminal laws and their sometimes inappropriate application in our criminal justice system.  The uninitiated might conclude that as a criminal defense attorney, I complain about all prosecution and think that unless I’m winning, everything must be unfair.  I assure you all that is not the case.  I have a deep respect for law enforcement and more importantly, our institutions of justice.  Being in the courts day in, day out, however, I find that too often prosecutors prosecute simply because they believe they can, and not because a common sense approach would suggest they should.

How Shoplifting Became Armed Robbery

One such case has crossed my desk recently.  I represent a man accused of armed robbery.  Armed robbery is a capital offense punishable by up to life in prison.  It is alleged that my client shoplifted some items from a local department store.  It’s alleged that after passing all the registers without paying, he was stopped by security.  This man was escorted to the loss prevention office in the back of the store.  The misbegotten property was taken from him and he was physically restrained to a bench in a room with a closed door.  It’s alleged that once he was told the police were on their way, he grabbed a scissors off the desk and threatened the security guards to let him leave.  They did so, and he was prosecuted for armed robbery.

Determining When The Offense Occurred Matters

We all know the classic armed robbery involves a person with a weapon threatening another person to give up property or be subjected to violence.  It’s commonly referred to as the “stick up”.  This case is fascinating because it is not in dispute that what my client is really alleged to have done is shoplift; a relatively minor crime that does not carry severe penalties.  Instead, the prosecution has charged this man with armed robbery on the theory that because at any time before reaching a position of safety or while attempting to maintain possession of stolen property, the defendant used a weapon it still falls under armed robbery.  Our position is clear:  once he was taken into the loss prevention office, taken behind a closed door, merchandise was removed from him, and he was physically restrained to a bench, the crime of shoplifting was complete.  At that point, any criminal activity conducted by my client is separate from the shoplifting.  For that reason, we believe he can only be charged with shoplifting and possibly assault with a weapon as a separate charge.

Limits on Proseutorial Power

The reasoning for this is simple.  To follow the prosecution’s reasoning, there seems to be no limit to when the government can elevate shoplifting up to armed robbery.  Think of the hypotheticals like after the police arrive at the store to arrest the defendant.  If they put him in the back of a squad car, and the accused begins kicking the windows of the car out in an attempt to escape, they might argue that he is using force in an attempt to flee, and therefore the shoplifting is now armed robbery.  Or take it further.  If the defendant is held in the loss prevention office, arrested by the police, transported by the police to the jail and is now sitting in a jail cell, is he committing an armed robbery if he then uses a weapon to assault a jail guard in an attempt to escape?  This absurd reasoning seems to be at work in the case I’m working on.

It seems that we all benefit as a society when our prosecutors are given more specific limits on their power.  In my experience, open-ended laws lead to abuse.  And that abuse can often take the form of charging people with massive crimes when common sense suggests their crimes are not massive.  Hopefully, the result in this case will be a favorable one.

The Equalizer for The Defense

If you, or someone you know and care about is in a situation similar to the one shared in this blog post, please contact me.  I am your Equalizer for The Defense.

Contact Jose R. Fanego Attorney For The Defense

Clean Up Your Criminal Record

expunge criminal record

Michigan law permits a person who is convicted of a crime to clean his criminal record in certain circumstances.  MCL 780.621 provides that if a person waits five years after conviction or the conclusion of punishment for that conviction and is crime-free for that period, he MAY petition a court for expungement of the conviction from his record.  There are some caveats, however.  The law provides that this can only be done for offenses that are not capital in nature and offenses that are not prosecuted under the traffic code.  The law further suggests that this only applies to persons who have only the one offense on their record.  Recent amendments to Michigan’s expungement statute create the possibility of expunging a crime even if there is another offense on the record which happens to be minor in nature.  The statute does not specify the definition of minor, and that will be up to any judge to determine before granting the relief.  Persons who would like to expunge a conviction should contact this office for assistance.  Not all judges grant expungement just because the petitioner is eligible for it.   Presentation is still key.  Judges are much more likely to grant expungement if the petitioner’s good deeds can be highlighted to counter-balance the bad deeds that he seeks to expunge.  In addition, it may be helpful to explain the particular need for expungement.  Remember, judges have the job of protecting the petitioner in the case, but also to protect society at large.  Some judges take the position that the public has a right to know of all convictions that a person has received.  By asking a judge to expunge a conviction, we are really asking a judge to hide from the public something that we all know once happened.  As such, an aggressive approach must be taken to highlight the petitioner’s positives.  It would be my pleasure to do that for you.

Contact Jose R. Fanego Attorney For The Defense

Don’t Be Cruel

Cruel PunishmentThere is a lot in the media lately about the death sentence in the United States.  Most people don’t realize that the death penalty is permitted in the United States on a state-by state basis.  Many states have decided that the punishment is inappropriate.  Others have decided that for the most heinous offenses it is appropriate to take the life of the offender.  What most people don’t realize is that although a state can agree to take a life, the punishment cannot be cruel and unusual.  Our constitution protects us among other things from cruel and unusual punishment.  This doesn’t only apply to the death penalty.  It can apply to the concept of flogging or some particularly individualized punishments that creative judges have thought up over the years.

Defining Cruel and Unusual Punishment

As it relates to the death penalty though, several examples recently have raised the debate again over what constitutes cruel and unusual punishment.  First, a bit of history.  In the United States, persons were executed originally by hanging.  Later, the practice of firing squad was used as well.  Once electricity was invented, folks figured out how to run a current through the human body in a controlled fashion so that it would stop the heart.  At one point or another, all of these were debated and judged not to be cruel or unusual forms of punishment and as such, lasted for years.  Most recently, dating back only decades, the practice of lethal injection has become prevalent, and in fact for decades executions through this method have been routine and uneventful.  Because, however, the worldwide trend is leaning away from execution, European companies that provide the United States with the pharmaceutical drug cocktail which has been used for execution have decided across the board to no longer supply their drugs to the United States because they realize those drugs will be used to end a life.  As the result, states that practice lethal injection have been using private doctors, who against their Hippocratic Oath, are recommending different drug cocktails to accomplish the same result as the previous drugs.  The result has been atrocious.  Most recently, a man was given a lethal injection and took over two and one-half hours before being declared dead.  Last month, a man was executed using a different cocktail and also took over an hour to die.  Eyewitnesses to the executions describe convulsions, gasping and guttural noises coming from the offender for the duration of the chemical process.  A recent exposé even revealed that a warden of one prison sent an email to another warden offering football tickets to his state’s college team if the latter would send him his recipe for the execution cocktail.

Ingredients for Execution Cocktail

Every person is free to decide for himself whether it is civilized for a society to engage in execution.  What is not up for debate is whether a state can take the life of a citizen without first disclosing the chemicals they propose to use, second, allowing the scientific community to analyze those chemicals and give recommendations on their efficacy, and third, work hard to prevent such spectacles as occurred in these most recent executions.

Other Methods of Execution

We as a country are better than this.  There is now some discussion about imposing a moratorium on executions until the issue can be sorted out.  The more aggressive states are considering simply reinstituting the firing squad and hanging as less controversial methods of execution.  Regardless of what these states choose to do, I hope we can all agree that the way we treat our convicted criminals is a direct reflection on us as a society, and as such, we should endeavor never to be cruel.

Contact Jose R. Fanego Attorney For The Defense

What A Great Lawyer Knows

A Good Lawyer Knows The Law…A Great Lawyer Knows The Judge!

There is an old saying that says a good lawyer knows the law, a great lawyer knows the judge. Some people take this for its apparent unseemly meaning. Some people think it means that the best lawyer is one that knows the judge and that this implies somehow a dishonest or corrupt connection between the lawyer and the judge. That’s an old wives’ tale. The statement, however, is absolutely true. Allow me to explain.

Courts of law all over our country are run by human beings. And as we know, all human beings have their preferences, their idiosyncrasies, and their peccadilloes. The old notion that justice is blind unfortunately is not true. All people interpret things differently, and all people, whether they will admit it or not, have biases and even prejudices. Judges are no exception to the rule. In my opinion, the best results that I’ve seen over my career in courtrooms were obtained by attorneys who understood where they were, who the players were, and how best to present their case in that courtroom. Make no mistake about it: the exact same case in front of two different judges should absolutely be presented in two different ways. It’s important to know whether the judge is a patient person, or whether he is always in a hurry to get to the heart of the case. It’s valuable to know whether this judge believes in the principle of rehabilitation or he believes only in the concept of punishment. It’s very valuable to know whether the judge has a very close relationship with his prosecutor. The list is endless!

The best lawyer absolutely goes to the trouble of knowing who the judge assigned to the case is, what that judge’s background is, and what that judge’s preferences are. This is all important in the process of presenting one’s client in the best possible light. Some lawyers practice exclusively in one jurisdiction. As such, they have been in front of that judge enough times to know what that judge’s preferences are. The best lawyers, I believe, are ones who are constantly in court houses, in front of different judges, who take the time to watch a judge if that judge is unfamiliar to them. While I have practiced all over the state of Michigan, there are obviously judges in front of whom I appear frequently, and know exactly how best to present a case for them. I’ve also appeared in front of judges with whom I’ve not had endless experiences. On many occasions I have actually made a dry run to that court house in advance of my client’s court date. Court rooms are public places and it is time well-invested for me to take a few hours to just watch how things go in a certain courtroom before I have to appear there for my client.

In addition, I have associations all over the state with other attorneys and frequently contact them in advance of my court appearances to inquire whether their judges permit arraignments by mail, or allow jury selection to be conducted by the attorneys themselves or whether a particular judge served in the military or perhaps had a loved one who was the victim of a crime. All of these subtle issues permit me to present my clients in the best possible light for that judge as well as avoid presenting my client in a way that will offend or turn a judge against my client.

Only a fool would think that if the law or the facts happen to be on your side, all you have to do is scream it from the mountaintop and all judges will come to the same conclusion. The best lawyer “knows” the judge and how therefore to convince that judge to grant the best possible result.

Take Down Your Graduation Tassel!

I recently handled an interesting case involving a motorist who was stopped by the police for allegedly having obstructed vision through his windshield. The officer claimed that because my client had his high school graduation tassel hanging from his rearview mirror, it obstructed his vision of the roadway. The stop of the automobile then spilled over into other areas, which produced the discovery of a controlled substance. My client was then charged with possessing that controlled substance. This case is interesting for a lot of reasons. First, most people in Michigan do not know that it is unlawful to drive with any obstruction on or near the windshield of their motor vehicle. Most people can see that perhaps a huge pair of fuzzy dice hanging from the mirror of a ’57 Chevy might cause an obstruction. What they don’t realize is that the way the law is written in the state of Michigan is that any object that obstructs vision can lead to a moving violation citation. More importantly, however, it can lead to the stop of an automobile and what I consider to be an unreasonable search and seizure.

Michigan Compiled Law 257.709 says that “a person shall not operate a motor vehicle with any of the following:…(c) an object that obstructs the vision of the driver of the vehicle, except as authorized by law.” The law goes on to say in section (3)(c), “This section does not apply to the following:…the placement of a necessary certificate or sticker that does not obstruct the driver’s clear view of the roadway or an intersecting roadway.” This conversation is all about the enormous power that our police have to stop motorists for practically any reason whatsoever. The way this law is drafted suggests to me that if a police officer is intent on stopping your vehicle for any reason or suspicion, be it race, gender, age, or even spite, this section of the law permits the officer to stop a law-abiding motorist and thereby violate his constitutional rights. Think about it; you get an oil change at one of our local establishments and without your even realizing it, the mechanic places a sticker on the inside of your windshield telling you that you should come back for another visit in 3,000 miles. You go on about your business and get stopped by a police officer because he does not believe that the sticker is “necessary” as defined under our law, or, he simply thought from a distance that perhaps that sticker was interfering with your vision. Or consider the case of the motorist who has a GPS device on his dashboard. Even though the device is not on the windshield, a police officer may stop him because he wants to investigate whether it is obstructing the motorist’s vision of the roadway. The way this law is written, it is a possibility that a police officer, who may have an illegitimate motive to stop a motorist, can do so claiming that his sun visor was down too far and obstructed the motorist’s vision.

In my years of criminal defense practice, I have seen numerous cases begin with a motorist’s stop because of obstructed vision. We must confront the ridiculous notion that a simple graduation tassel hanging from a rearview mirror could somehow prevent the motorist from seeing oncoming traffic or traffic signal devices. This law is obviously a very pro-law enforcement law, and not a pro-motorist law. It is ironic to me that the motorists I usually represent who are stopped for this justification tend to be very young in appearance or very ethnic in appearance. One thing is for sure: I have never yet represented a senior citizen whose vehicle was stopped because the officer believed their eight-inch by four-inch plastic handicapped parking tag hanging from their rearview mirror obstructed their vision.

Two cases from the Michigan courts address this issue. People vs. Fisher at 463 Mich. 881 and People vs. Dillon at 296 Mich. App. 506. Both uphold the police officer’s right to stop a vehicle on the suspicion that the object may be obstructing the motorist’s vision, even if it is later determined not to do so. The Dillon case is decided on two grounds. First, the idea of an Ohio v Terry stop. The second, under a challenge for being void for vagueness. What is interesting to me is while Dillon upholds the Michigan law as not being void for vagueness, all the cases I have just described were decided before 2010, when Michigan amended its law. The law used to say it was unlawful to have any object dangling from the rearview mirror. It now simply says any ‘object that obstructs.’ The argument is that if the law was declared not to be void when the statute attempted to be very specific by referring to dangling objects as opposed to fixed ones, the amended statute simply became more general and is therefore much more likely to be declared void. It’s clear that as currently written, it has its own conflicts. I referred to one earlier when I said the statute prohibits any objects that obstruct vision and yet does permit necessary stickers, for example, parking lot passes, to be stuck on the windshield, as long as they do not obstruct vision. This gives our police officers far too much discretion to determine within their own minds what is legal and what is not legal when the average motorist would obviously have a very tough time deciding that for themselves. I believe this situation is ripe for a constitutional challenge, and is simply in need of the client who is highly motivated and well-funded enough to take the challenge through our Michigan courts. Think about it, and tune in for the next edition.