Please tell us about your background, about your ex-perience in crimi-nal law, how you came to the practice, where you practice, and how long you have practiced criminal law.

After one year at Thomas Cooley, I graduated law school in 1997 with a Juris Doctorate from the University of Tennessee College of Law, in Knoxville.  I have practiced at a few different firms, one of them including Samuels Law Office, where I worked with James Samuels.  Under Jim's tutelage, I learned a lot, particularly, how to cross-examine witnesses and formulate trial strategy.  Currently, I work at DuVall Law Office, with Dennis Duvall, in Big Rapids, handling court-appointed and retained criminal cases, as well as juvenile cases.

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

Last July, I represented a client, age 71, that was charged with a total of eleven counts of CSC (nine counts of CSC 1st, one count of CSC 2nd, and one count of CSC 4th, all under 13 except the 4th).  There were three complainants, two of whom were sisters and one was the daughter of my client's step-son's girlfriend.  The sisters were my client’s step-grandchildren.  Most of the allegations were from 2004-2005.  There was indeed an investigation by police at the time, and no charges were brought.  Then, in the summer of 2013, it was investigated again.  At the time of the original allegations the alleged victims were 6, 8, and 12.  The government also had other acts evidence.  My client was accused of CSC 1st in 1981, and acquitted, which I managed to keep out.  He was also accused of molesting his first wife's younger sister (who was 20 years younger than his wife) from the ages of 6-13.  I was unable to keep this out, and the jury heard all of the horrible allegations.  This was devastating to our case.

As far as a theme, or plan of attack, we had none.  I think the case was won on cross.  The girls were not good on cross, and they got tripped up.  One girl claimed she was too young to understand what was being asked of her.  But the forensic examiner had told her this was the reason, so I countered with that and she agreed.

The closing argument was fairly good, I thought.  I reminded the jury many times of the burden of proof, and asked the jurors to really think about what the girls were claiming when they go back to the jury room.  Hundreds of alleged molestations, in this small house, with no witnesses, even though there were many people in and out, as the jury had heard, no physical evidence, no medical examinations, no confession, and the girls would keep coming back to visit, even after they claimed molestation.  Their versions had changed, and no charges were ever filed in 2005.  As trial progressed, my theory became that kids can be susceptible to suggestion.  The more a child hears, or tells a story, the more it may actually seem real to them.  Ultimately, he ended up being acquitted on 10 counts and the judge declared a hung jury on the other count, which the prosecutor chose not to pursue.  My client was released and went home that day.

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

What I have noticed is that the 4th Amendment has deteriorated tremendously.  Propensity evidence has made 404(b) evidence easily introduced, putting attorneys at a disadvantage.  Much like what happened in the case I just talked about.

What advice do you have for other criminal defense lawyers?

I would advise all criminal defense lawyers to go through Trial College at CDAM.  It makes you see your faults at trying cases like you can't imagine.  The things you do and do not realize will become obvious to you, which has always been obvious to a jury.  This was one of the most helpful tools I have experienced.

Do you have any specific advice for new lawyers?

Join organizations that will help you in your practice, including, but not limited to: SADO, the Darrow list-serve and CDAM.  There are so many lawyers that are willing to help you in your practice, and answer your questions.  These groups are such a help, and you have hundreds of brains to pick.  Their personal experience is an invaluable tool.  People are generous with their time, phone calls, sharing briefs...it's a great community.

by Neil Leithauser
Associate Editor

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