Spotlight On: Bradford Lyerla

From the August, 2023 Criminal Defense Newsletter
Spotlight is a regular feature of SADO's Criminal Defense Newsletter (CDN), in which we get to know a member of Michigan criminal defense a little better. In the August 2023 CDN, we put a spotlight on attorney Bradford Lyerla.

Your primary work as an attorney has been in intellectual property law. But you also have had a significant criminal defense practice. That seems a little unusual. How did you come to practice in these two very different areas of law?

I love both areas of law. IP is intellectually satisfying and a good money maker, but it also requires a big firm lifestyle that I do not love. By contrast, criminal law is an individualized practice. A criminal defense lawyer lives by their wits and does not require a large infrastructure to handle the work. Criminal cases move quickly, and trials are over in three or four days. During my decades practicing at the big firm, a criminal trial once a year or so was like a vacation from the grind that characterizes most IP litigation. IP and criminal law complement one another in that way. The subject matters are so different that when doing one, I would always look forward to getting back to the other when the time came.

It may surprise you that patent/trade secret litigation shares something important with criminal law; that is that IP/trade secret cases go to trial more often than other civil litigation. In my old firm, my IP group actually went to trial more frequently than our white-collar defense group. In those days, whether criminal or IP, it seemed that all I ever did was finish one trial and immediately begin working toward the next trial. The time to trial in patent/trade secret cases would be long and would involve a team of lawyers. The criminal trials were serious felonies, including a few death penalty cases in Illinois, but the team would be small and the trials short.

How was I able to combine both? I was a partner at a firm called Jenner & Block. It has the deepest commitment to pro bono work of any law firm in America, according to the American Lawyer and a few other similar organizations. We were not “allowed” to do pro bono. We were required to do pro bono. From the get-go, I devoted my pro bono time to trying felony trials for indigents. There is a story there, but I am not sure that you will have the space or time.

Tell us about one of your interesting criminal cases.

I have many war stories, but I will tell you about Mr. S’s case. Mr. S was a small-time drug dealer about 20 years old. He had a “corner” near the Ickes housing project on the south side of Chicago. He had been in jail for some months. When he was released, he returned to his corner only to find that someone else had taken it over. It was alleged that Mr. S marched the usurper into the middle of a nearby empty lot at gun point and executed him.

An associate at our firm became Mr. S’s lawyer and began to prepare a defense. Along the way, the associate became too involved personally in the investigation and made himself a potential trial witness. That’s when I learned about the case from our pro bono committee. I was asked to get involved and to try the case with the associate, assuming we could “save him” from being disqualified. (Illinois observes the usual rule that you cannot be an advocate and a witness in the same case.) Our best efforts were not good enough and the associate was excluded from acting as an advocate during the trial. I slid into the role of lead trial counsel and a young partner took over the second chair.

It was the mid-90s and the Cook County State’s Attorney (the equivalent of a Michigan Prosecuting Attorney) was a fan of the death penalty, which was still available then in Illinois. The prosecution was pressing the death penalty very aggressively. Naturally, that became the prime directive for us. We had to avoid the death penalty.

Mr. S wanted a trial, so negotiating a plea was never a part of our marching orders. We proceeded to trial. Along the way, working with anti-death penalty advocacy groups, we filed over 100 pretrial motions directed at a number of issues that we felt we had to preserve, just in case a sentence of death resulted from the trial.

Well, we did our best, but the jury came back guilty, and we headed into a hearing on the death penalty (“the death phase,” in local parlance). After agonizing over it, I recommended that we waive the jury for the death phase. Mr. S accepted that advice and we tried the death phase to our trial judge. She was receptive to my arguments and sentenced Mr. S to a term of years in the penitentiary. To my surprise and gratification, the term of years was “only” 30 years. Many of the pundits had been predicting 60 years, if not death.

That was not the end of Mr. S’s story, however. The Illinois Appellate Court reversed the finding of guilt for errors relating to the manner that the trial judge allowed an uncharged co-perpetrator to testify against my client. On remand, Mr. S was again found guilty, but because the first death penalty hearing had been resolved favorably to the defense, the death penalty was no longer available in the second trial (double jeopardy).

But wait for it . . . the Appellate Court reversed the finding of guilt in the second trial too.

Mr. S was found guilty after the third trial and that verdict stuck. I was not involved in the second or third trials, but our “win” in the death phase of trial number one barred the State from seeking the death penalty in the subsequent trials, so I count that as my contribution to the long chain of litigation that followed for young Mr. S. If you bump into me, feel free to ask me what I learned from Mr. S’s case about the sentencing of youthful offenders in capital cases. I would be happy to elaborate.

As we continue to emerge from the pandemic, what do we need to prioritize in the criminal legal system?

Two things. First, respect for the rule of law is at an all-time low. But each of us can help. We should discharge our role without cynicism and with enthusiasm for what is unique and good in our system of criminal justice (without turning a blind eye to the profound shortcomings). Although we often fall woefully short of them, our legal institutions aspire to noble and high-minded goals. Pride in those aspirations can and does help to restore some of the respect that has been eroded in the last decade (by both political parties, who equally disparage law enforcement, prosecutors, and judges – though for different reasons). 

Second, I think that sentencing should be simplified in Michigan. It is too complicated for many indigent defendants to understand. Plus, with over-charging being standard practice in many jurisdictions, pleas are often the result of a type of coercion that courts are pragmatically willing to live with. The best way to oppose the unacceptable effects of that coercion is to teach clients what they need to know. Teaching would be a lot easier if there were not so many moving parts to the sentencing algorithm.

Do you have any advice for other defense attorneys, particularly those who are newly licensed?

My advice is that personal excellence most often precedes professional excellence. Focus on being smart and kind (they go together) while you work hard for clients. You will be an effective advocate, make a good living and earn the respect of others if you do.

Kathy Swedlow
CDRC Manager and Editor