Please tell us about your background, where you practice, and how long you have been a criminal defense lawyer.

 I was a French and Philosophy major at Wayne State, but like so many 1970s Liberal Arts graduates, I decided to go to law school.  I attended the University of Michigan Law School, then worked in the prehearing division of the Court of Appeals for one year.  After that I clerked for the Hon. Wendell Miles, Chief Judge of the US District Court here in West Michigan for two years, then went to work for a Muskegon firm doing civil litigation.  Since 2000, I have practiced criminal defense, primarily appellate law, but also some felony trial work.  Most of my practice is in the West Michigan area, although I do have some post-conviction cases originating on the east side of the state.  I am much happier doing criminal defense than I ever was doing insurance defense or commercial litigation!

Please tell us about one of your interesting cases.

 In one of my first criminal appeals, my client had been convicted of assault GBH [with intent to do great bodily harm less than murder] and was serving a 10-year sentence.  There was a video showing my client brutally kicking and punching a guy on the floor of a house.  Because the video seemed so clearly to establish my client’s guilt, the trial attorneys did no preparation whatever for trial, with the result that my client was convicted.  My client literally had not met the attorney who tried his case until the morning of jury selection.  Trial counsel simply assumed the video made it a “lay down” conviction for the prosecutor, so he did not investigate my client’s witnesses.  These witnesses later testified at the Ginther [People v. Ginther, 390 Mich. 436 (1973)] hearings, and said that my client was at the “half-pint” stage of intoxication, and also said that the guy who was kicked had in fact swung at my client first.  The end result after multiple evidentiary hearings was that the trial judge granted my client a new trial.  On retrial, he was convicted only of assault and battery – a 93-day misdemeanor.  By this time, he had served 18 months in prison, so there was a clear malpractice case against trial counsel.  We got a nice settlement for my client.

What were the prosecution and defense theories?

 The prosecution theory – which was hardly contested by trial counsel – was that the video spoke for itself; there was my client kicking and punching some guy on the floor, what else do you need?  Case closed!  Guilty!  Ten years in prison!  I contacted and subpoenaed all of my client’s witnesses (whose names and numbers he had given to his trial counsel, and which I found in trial counsel’s file, but which trial counsel never even looked at).  They testified that my client was drunk and had been hit and provoked first.

Were experts needed?

 Experts were not needed for the evidentiary hearings – trial counsel’s failure to even minimally investigate the case was so shockingly evident that even a lay person would know that his conduct was well below professional standards.  However, in the malpractice case that followed, of course we had an expert criminal defense attorney ready to testify to the standard of care, namely, that it’s pretty elementary that you have to meet with and talk to your client before the morning of trial on a 10-year felony, and that you should investigate any defenses!

What specific trends do you see in the criminal law in Michigan?

 It is sometimes discouraging to see so many state and federal judges avoiding clear constitutional violations, in their haste to affirm criminal convictions and to find harmless error.  Several recent United States Supreme Court decisions have made it even more difficult to remedy constitutional violations.  I am more and more persuaded that it is not just the prosecutors who are our professional adversaries, but many judges as well.  Recently, a trial judge refused to re-appoint me to one of my cases, even though leave has been granted by the Michigan Supreme Court, and amicus briefs have been invited.  A Supreme Court calendar case can be expensive, and the county pays for appeals only through the Court of Appeals.  It is clear to me that some judges don’t want us to appeal cases to the Supreme Court, and so refuse to pay for them.

What advice do you have for other criminal defense lawyers?

 My advice is primarily directed to appellate lawyers: We are advocates and it is important to have a fighting spirit, even though criminal appeals are very much an uphill climb.  We cannot give up because many of our clients have suffered shocking injustices in the trial courts! Thus, when it comes to evidentiary hearings, we cannot “pull our punches” when questioning trial counsel because of a misguided sense of professional collegiality.  Many trial attorneys are highly defensive at Ginther hearings, and we appellate lawyers have to push back.  The second point of advice is that we are writers as well as lawyers, and we have to continually improve our writing.  The most important part of writing is re-writing, to attain simple, elegant, powerful prose that tells a compelling story and (hopefully) will convince judges who have little time and patience for overwrought language.

by Neil Leithauser
Associate Editor
 

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