You have reached Emeritus status as an attorney.  Please tell us about your background, about your experience in criminal law, how you came to the practice, and how long you practiced criminal law.

In 1949 I attained a bachelor’s degree at U. of Michigan, under the G.I. Bill of Rights. (Yes, I am that old.)

For 18 years I worked as chief investigator for a major Detroit law firm that did plaintiffs personal injury and product liability lawsuits.  In 1974, at age 53, I thought, ”Heck, I can be a lawyer.” So I went to Wayne State law school at night, and in 1978 passed the bar.  I operated a one-man general practice for 11 years, including a modest amount of criminal work.

At age 68 I sort of semi-retired to 70 hour work weeks, bought a huge copying machine for my basement and started taking criminal appellate assignments all over Michigan, under the MAACS system.  Many, many counties.  Traveled, photo-graphing lakes and parklands as I did about 400 prison visits for 13 years.  Nature photography is my second passion.  I fully retired around 2002.

Please tell us about one of your interesting cases.

In 1999 I took an appellate assignment in Kalkaska County.  A young man named Jamie Peterson was convicted of the rape and murder of a beloved widow in the village of Kalkaska.  She was sexually assaulted, forced into the trunk of her car, and left in the garage with the motor running; she was asphyxiated.  The small community was shaken to its roots.  The victim was a 25-year veteran teacher’s aide in the middle school.  Her daughter was a 25-year teacher in the same school; her son-in-law was chairman of the County commission.  Incredible jury bias problems.

DNA of sperm in the vagina was identifiable.  There was a second sperm deposit on the victim’s shirt, insufficient to develop a DNA profile.

Peterson was in the County jail on another offense.  Joined in the jailhouse chatter, saying he did the murder, to a cellmate informer.  He had a lifetime history of mental health treatment, starting at age 2.  State and local police went to work on him, employing psychological pressures and suggestive questioning; they obtained tape recorded statements, which the prosecutor considered to be a confession.  However, when his DNA test came back, he was 100% excluded from the vaginal rape DNA profile.  Regardless of this, he was charged based on the confessions, tried, convicted, and sentenced to mandatory life in prison.

The appellate courts denied relief on all issues, including a lack of evidence, biased jury, and false confession.

In the subsequent 13 years, the original Kalkaska defense attorney, Robert Carey, and I repeatedly petitioned the local circuit court, and the County officials to retest the DNA, first of all in Peterson’s interest, but secondarily because of the fact that the actual perpetrator who left the identifiable DNA sample was still at large.  Strangely, they all turned a deaf ear – the local prosecutor was uninterested in further pursuing the actual guy.

Meanwhile, in the 13 years, DNA science progressed, and the FBI developed the CODIS database consisting of millions of DNA profiles.  In 2013 we approached the University of Michigan Law School’s Innocence Clinic, and they were quick to recognize this as an actual innocence case.  Partnering with the Northwestern University (Chicago) Center On Wrongful Convictions, they persuaded a new young prosecutor to submit the DNA for retesting.

Retesting produced a double hit – on both DNA specimens – not Peterson – CODIS search identified an individual who at the time lived a block and a half from the victim.  That person has now been arrested and faces trial in Kalkaska.

This past month, acting upon an MCR 6.500 motion by the innocence clinics the Kalkaska circuit judge vacated Peterson’s conviction and ordered a new trial.  On September 5, 2014, the Prosecution agreed to dismiss the charges.  Peterson is free.

What were the theories of the parties? 

Prosecution: the confessions were valid; there were two perpetrators, including Peterson; the unidentified sperm “could have been” Peterson; the DNA didn’t make any difference.

Defense: the DNA exclusion was exculpatory and exonerated Peterson; the suggestive questioning techniques by the police produced a false confession; there was no objective evidence, either pointing to Peterson, or indicating that there were two perpetrators.

Were experts needed?

The defense utilized a psychologist who testified as to possible brain damage, and a propensity on the defendant’s part to make up a story about committing the crime.

The prosecution countered the psychologist’s testimony with a state employed forensic psychologist, who testified in opposition to the position of the defendant’s expert.

Note: Watch for my forthcoming book on the case – The Anatomy of a False Confession.

What trends – good or bad -- have you noticed in Michigan criminal law over the years?

To me, it is a disappointment that in my lifetime our society has not seriously addressed the causes of the disgracefully high rate of incarceration.  Minimal changes in the drug laws are a very small start.

What advice do you have for other criminal defense attorneys? 

Be a bulldog; that is, be persistent. Meticulously pore over the factual evidence repeatedly, and then once again.  You will be surprised at how new nuances will be found that may be decisive.

Keep agitating, optimistically; progressive societal changes do happen.  My five great-grandchildren will no doubt change the world.

Do you have any specific advice for new lawyers?

Utilize to the fullest the SADO resources that are available to you.  They did not exist in their present form 15 years ago, but have been created by SADO’s skilled and dedicated professional personnel.  These materials will enable you to practice in a knowledgeable fashion, answer your questions, and develop your own skills, and you can always find someone there who will willingly consult with you on your problems.

Stand up for what you believe in. Don’t let anyone demean the humanity of persons who are in prison. Money is nice, but don’t let it drive your important decisions.

by Neil Leithauser
Associate Editor
 

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