Please tell us about your background, how you came to practice criminal law, and where you practice?

I was admitted in 1992 and opened a practice in Lansing, where I was raised.  I’ve been involved in employment litigation, family law, other areas of law, and for ten years represented parolees against parole vio-lation charges.  Presently, I focus on criminal appeals.  In law school, I did not intend to practice criminal law.  In hindsight, I was lucky to stumble into this field because reading and writing are my favorite activities.  And I prefer to hold minority or contrarian opinions.  In a room where everyone believes X, I want to argue Y.  If the room believes Y, I would rather argue X.  There are words for people like me.  Being the “Devil’s Advocate” would be my ideal job.

Please tell us about one of your interesting or unusual cases.

There have been many memorable cases, but one of my fondest is People v Curran Deland Wilson, a Genesee County case.  Curran was 52 and convicted of armed robbery.  He was likeable, not malicious in nature, but became involved in an unfortunate situation and acted impulsively.  After pleading out, he received a 108 month minimum sentence.  I was appointed to serve as appellate counsel, found a guidelines error, and Curran was resentenced to a 35 month minimum sentence.  The MDOC paroled him after he served 40 months and he has not been returned.  He was very grateful.  The case was not reported anywhere, until now.  I believe all the attorneys I know who regularly represent defendants in criminal appeals do so in order to find clients like Curran.  Another memorable case is People v Levon Lee Bynum [496 Mich. 610; 852 N.W. 2d 570 (2014)], a reversal of a murder conviction in which the Michigan Supreme Court set forth rules for the use of purported experts on street gangs.

Have you seen any trends in criminal law in recent years?

Of late, there is an increased awareness of deficiencies in our criminal justice system.  I don’t see the system as “broken” (as it is sometimes described), but in need of reform.  A recent George-town Law Review article by United States Court of Appeals Judge Alex Kozinski, “Criminal Law 2.0,” available on-line [see below*], nearly encapsulates my concerns.  Kozinski describes 12 widely held but largely false beliefs about criminal prosecutions and proposes reforms, a couple of which have occurred in Michigan.  Interestingly, bad trial counsel is not focused upon.  I have reviewed hundreds of trials over the past 23 years and I have seen great attor-neys with storied reputations make mistakes that warranted relief.  But in my experience, the vast majority of appointed criminal defense lawyers in Michigan are trying daily to accomplish something for their clients despite being paid fees which, at times, can feel punitive.

What advice do you have for other defense attorneys?

To trial counsel, when I send my introductory letter to you regarding a case you tried, introducing myself as appellate counsel, it is not an opening salvo in an attack on you.  More likely, the only thing I will ever request are copies of exhibits if you have them, maybe police reports, and thoughts about the case if you have any to share.

Any special advice for new lawyers?

“The average man seeks certainty in the eyes of the onlooker and calls that self-confidence.  The warrior seeks impeccability in his own eyes and calls that humbleness.” (Quote attributed to the fictional don Juan Matus).  Do not practice criminal law in the hope of being liked.  We often represent people who are accused of doing horrible things.  But if you are diligent, follow the rules, and try your best, most judges and prosecutors will respond in kind.  This applies to clients as well.  You will be challenged by clients on whether you or they “control” the case, but the truth is that you should both come together to form an abstraction called “the defense.”  Do not become so phobic of grievances that you end up doing things simply to pacify a client because eventually you will end up harming them as you lose focus on your proper role.

Also, having interests beyond the law will help you become more productive, happy, and possibly a better lawyer.  I like traveling with my wife, being outside with my pack of rescue dogs, being among trees, and reading books on subjects other than the law that I find challenging or difficult.  Reading those writers convey difficult ideas has helped me become a better writer.

*Hon. Alex Kozinski, “Criminal Law 2.0,” 44 GEO. L.J. ANN. REV. CRIM. PROC (2015)

by Neil Leithauser
Associate Editor
 

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