Please tell us about your background, about your experience in criminal law, how you came to the practice, where you prac-tice, and how long you have practiced criminal law.

I graduated from Wayne State University Law School (WSU) in 1977.  I have primarily practiced criminal defense law since then.  I worked as a staff attorney for the Wayne County Juvenile Defender Office (JDO) for three years.  I then worked 8 years for the State Defender Office, representing defendants in the Detroit Recorder's and the Wayne Circuit Courts.  While there, I handled hundreds of felony cases, including many capital cases.

Since 1988, I have been in private practice, working primarily in the area of criminal defense, both state and federal, trials and appeals.

I became interested in a career as a criminal defense attorney when I learned first-hand how criminal defense attorneys can support and protect grassroots social justice activists who face repression from recalcitrant institutions and governmental bodies.

In 1970, as a freshman at Michigan State University (MSU), I became an anti-Vietnam War activist.  That year, I became one of the "MSU 132", a group of MSU students and faculty who were arrested on May 18-19, 1970 for participating in a meeting in the MSU Student Union (the meeting continued after closing time) to plan campus protests against the murders of student civil rights protesters at Jackson State University a few days before; this was a few weeks after the murders of student anti-war protesters at Kent State University.

The MSU 132 were represented by a large group of attorneys from the Detroit Chapter of the National Lawyers Guild (NLG), including the Ernie Goodman law firm; as well as Buck Davis, Ron Reosti, James Lafferty, and Abdeen Jabara.  The attorneys  filed a class action civil rights lawsuit against MSU in an  attempt to enjoin our prosecution, based on Dombrowski v. Pfister,  380 U.S. 479 (1965).  As a result of the lawsuit, MSU agreed to dismiss a charge of loitering, in violation of an MSU ordinance, in order to prevent our constitutional challenge to the ordinance from proceeding.  Cholmakjian v. Board of Trustees, 315 F. Supp. 1335 (1970).

A randomly selected group of ten of the defendants (not including me) then went to jury trial in East Lansing District Court on the remaining count of trespassing.  They were represented by Detroit NLG attorneys Justin Ravitz, Bill Goodman, and Neal Bush.  They were acquitted, whereupon the prosecutor dismissed the charges against the rest of us.  I was impressed at how a vigorous legal defense was able to defeat a politically-motivated university and government attack on the grassroots anti-war and civil rights movement on campus.

In the Spring of 1972, I was arrested during protests against U.S. military recruiting on campus.   NLG and CDAM attorney Ken Mogill represented me during a jury trial on a charge of resisting and obstructing a police officer.  Despite Ken's heroic efforts, the jury believed the police, and I was convicted.  My successful appeal was handled by attorney Ken Lerner of SADO, and the conviction was reversed.  People v. Royal, 62 Mich. App. 756 (1975).

As an attorney, my primary pro bono work has been representing social justice and labor activists who are facing criminal prosecution for protest-related activity.  During the Detroit newspaper strike (1995-1999), I represented a number of striking workers and dozens of strike supporters, who were prosecuted for alleged illegal acts committed in support of the strike.  Then, in 2000, I was involved in representing a group of bicycle protesters who were attacked by the Detroit Police gang squad for conducting a “Critical Mass” bicycle protest in downtown Detroit.

More recently, I have been involved in the representation of environmental protestors who have been trying to bring attention to the danger to the environment presented by Enbridge Corporation’s re-building of an oil pipeline across southern Michigan.  This pipeline is being re-constructed to bring Canadian tar sands from Alberta to refineries in the U.S.  Environmental scientists have determined that the removal of Canadian tar-sands from the ground will greatly increase the global climate change that we are experiencing. 

Please tell us about one of your interesting cases.  What were the theories of the parties?

About 15 years ago, I tried a second-degree murder case before Judge Gershwin Drain in Detroit.  My client was accused of the murder of her boyfriend by a single stab wound with a kitchen steak knife.  The prosecutor’s theory was that the decedent was the victim of domestic violence by my client.  The defense theory was that the defendant had been the victim of domestic violence committed against her repeatedly by the decedent.  My client had never reported the prior incidents to any authorities.  Interestingly, the jury panel contained an unusually large number of prospective jurors, both men and women, who stated that they had been victims of domestic violence.  The trial prosecutor used peremptory challenges to remove all women who had been victims of domestic violence.  The prosecutor gambled that males who had previously been victims of domestic violence would side with the decedent.  I gambled that they would side with my client.  I won.

Lessons learned: (1) Study crime scene photographs carefully.  My client testified she had been struck in the head by the decedent with a heavy handheld phone just before she stabbed him.  An attorney who was a friend of the family had visited my client in the jail and testified to seeing the bruise on her head.  Two white Detroit Police Officers testified they did not observe any bruising on my client’s head.  However, one African-American Police Officer testified very positively that he had seen the bruise on my client’s head.  The jury had already seen the crime scene photographs by the time I cross-examined the evidence technician.  On top of a bureau was a black object that my client told me was the base of the handheld phone.  I made a point of asking the evidence technician if he could confirm that this was the base of the handheld phone.  He stared at the photo for a minute and said, “Yes, I do believe you’re right; that is the base of a handheld phone.”  I could hear audible gasps from the jury.  They had clearly studied the photographs carefully, looking for the base of the handheld phone and had not found it.  Pointing that out through the testimony of the evidence technician was very important.

(2) Learn more about the case than the prosecution knows.  I had reviewed the case history of the decedent at the Wayne Circuit Court and discovered that one of his former girlfriends had obtained a domestic violence injunction against him (this was before PPOs).  Luckily, the prosecutor called the teenage daughter of the decedent and this previous girlfriend to testify as the identifier, trying to use this teenager to appeal to the emotions of the jury.  On cross-examination, I asked the teenager if she could identify her mother’s hand writing.  When she said she could, I advanced toward the witness stand holding the domestic violence injunction high over my head and asked, “Can you please identify your mother’s signature on this domestic violence injunction that she previously obtained against your father?”  Before I could even hand it to her, the daughter said: “Oh yes, I remember when she got that.”   It caught the prosecutor completely by surprise.

Were experts needed?

I called Hedy Nuriel from The Haven in Pontiac as an expert witness in the area of domestic violence.  I was pleased to note that the men on the jury who had been victims of domestic violence were fascinated by her testimony; they hung on her every word.  They clearly related to the experiences she described and the manner in which people who are victims of domestic violence react.  Her testimony clearly and simply explained why my client had never reported to any authorities the previous acts of violence she experienced at the hands of the decedent.

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

During the last 40 years, Michigan law has seen an enormous shift of power from judges to prosecutors; and an enormous pro-prosecution shift in both the Michigan Court of Appeals and the Michigan Supreme Court.  Many procedural rules that previously existed to protect the rights of Michigan criminal defendants to a fair trial have been repealed or watered down by the Legislature and by the appellate courts.  It is much more difficult for a criminal defendant to get a fair trial today than in the 1970's or 80's.  The situation with the Michigan Court of Appeals borders on the absurd.  I frequently receive opinions from the Michigan Court of Appeals that seem to side-step recognizing obvious reversible errors by reading the facts of the case in a way as to justify affirming convictions of defendants who did not receive a fair trial.  The Michigan Supreme Court has been a mixed bag; that Court more often intervenes in criminal cases to reinstate a rare conviction which has been reversed by the Michigan Court of Appeals; but, occasionally the Michigan Supreme Court does intervene to establish policies and rules of law that protect fairness in trial procedures.  But the number of cases that do not obtain a really fair appellate hearing until the defendant files a Petition for a Writ of Habeas Corpus in the federal courts is shocking.

What advice do you have for other criminal defense attorneys?

My advice to criminal defense attorneys is this:   Be mindful of the need to protect the record for appeal, become more familiar with the rules of evidence and the rules of criminal procedure, and object more often.  I am constantly frustrated in my appellate work that I have to argue ineffective assistance of trial counsel because the trial attorney failed to make a simple objection.  Here are issues that trial attorneys need to be object to more frequently:

1.  Prosecution cross-examination of a defendant in which the defendant is asked to comment on the credibility of other witnesses (Did Officer Doe lie?).  Such questions are improper because a Defendant has no personal knowledge as to whether a witness is lying or telling the truth, because the defendant cannot read the mind of other witness -- he/she could simply be mistaken.  There are multiple court decisions in Michigan that prohibit this practice, but I continually see prosecutors questioning defendants about whether prosecution witnesses were lying about them, without any objection being made.  And tell your clients before they get on the stand that if the judge rules they should answer such a question they should say something like: “All I know is that the testimony was not accurate.”

2. Failure to object to prosecutorial misconduct in closing arguments.  There appears to be a pervasive idea among the criminal defense bar that it is a bad idea to object when a trial prosecutor commits egregious misconduct in closing argument.  I’m not sure if this is based on a belief that it is rude to interrupt the prosecutor; or that it will simply draw greater attention to the improper argument; or based on fear that the judge will overrule the objection.  I strongly believe that none of these rationalizations are appropriate.  I believe juries expect us to aggressively defend our clients, and jurors do not get offended or upset when we interrupt the prosecutor to make an objection, even if the judge shoots us down.  It is almost impossible to obtain appellate relief on even egregiously improper prosecution argument without an objection.  At the very least, ask to approach the bench at the end of the prosecutor’s arguments and move for a mistrial based upon improper prosecutorial arguments; and argue that the prejudice is too great to be cured by a curative instruction; ask for a mistrial.

3.  Please stop agreeing when the judge asks you if you agree with the court’s jury instructions.  I have seen trial transcripts where the defense attorney asked for some instruction and the trial court refused to give it, and after the instructions, the judge asked the defense attorney if he/she was in agreement with the instructions, and the trial attorney said “yes”!  The Court of Appeals considers this a withdrawal of the request for the instruction.  I strongly suggest simply saying something like:   “I agree the court gave all the instructions it previously ruled it would give.”  If the jury thinks you are saying there is some instruction that the trial court refused to give them, I think that’s a good thing.  Jurors will wonder what the trial judge didn’t want them to know.  Please, NEVER agree that the trial court’s instructions were satisfactory, appropriate, or complete.

For new lawyers interested in specializing in criminal defense, I would recommend they chose another field. There is a tremendous romantization of criminal defense work but it is extremely difficult to make a living doing this work now and it is getting worse.  However, to the many who disregard this advice because you have a strong passion for this important work, then the best suggestion I can give is to find a mentor.  A good mentor can guide a young attorney in meeting the essential people who work in the courts, can teach the myriad of procedures that different courts and judges follow, and can hopefully provide some spin off work for which a young attorney can get paid.

by Neil Leithauser
Associate Editor
 

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