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

In law school, I worked at Wayne County Neighborhood Legal Services as an intern.  After law school, I started out in Berrien County as a Reginald Heber Smith Fellow for the Legal Services Corporation.  Reginald Heber Smith Fellows were lawyers who were employed to be legal activists in the community and to provide legal representation to the indigent.  I eventually ended up at the Defender’s office in Detroit.  I had the good fortune to be hired in at the same time as 5 other attorneys and we had so much fun practicing law together.  Four of us were placed in the library because of lack of office space.  I put a sign on the library door that read, “The Library Law Firm Of” and put our names underneath it.  Many of the other attorneys that already worked there were considered some of the “best and the brightest,” but many didn’t want to have anything to do with us because we were new so the “Library Law Firm” stuck together and kicked butt in court.  It was a time when the 4^th Amendment was alive and well and rogue police officers did not benefit from breaking the law.  I burned out at the Defender’s office and went to work for a civil law firm.  I ended up in private practice handling criminal and neglect cases and appeals. Frank Murphy Hall of Justice is an exciting place to practice law and I feel lucky to be able to practice there and represent the people that I do.  It is a pleasure to watch the many talented and bright defense attorneys in action who practice there.

Please tell us about one of your interesting cases.

When I was at the Defender’s office, I had a choice to do a bench trial before a judge that would likely convict my client or a jury trial before a judge who could be volatile.  I chose the jury trial.  The assistant prosecutor, now deceased, was not happy with me.  I went over to talk to him and I leaned against his table and he said, “Don’t touch my table!”  Without thinking, I started rapidly touching the table all over.  That set the tone for the trial.  My investigator had obtained witness statements where the witnesses told her that the complainant had paid them to say my client stole the complainant’s fence.  In court, the witnesses denied receiving money for their testimony and claimed their written statements were manufactured by the investigator.  The judge, out of the presence of the jury, threatened to take my bar card if the allegations turned out to be true.  I was paralyzed with fear but I knew that I had to call the investigator.  The investigator was not afraid of that judge.  She took the stand and testified to the truth and looked the judge dead in the face and answered the judge in a firm tone of voice when he tried to ask questions suggesting that he didn’t believe her.  At some point during the trial, the client and I sat on the bench outside the courtroom together with our heads bowed and he said, “Ms. Rock, things are looking pretty shitty.” I said, “Yes, they are.” His dad told me that the jurors really listened to my closing argument.  The jury found him not guilty.

What trends have you noticed in criminal practice in recent years?

I think it is finally being recognized that judges who get actively involved in trials by acting as a second prosecutor can deny a defendant a fair trial.  In the past, it was difficult to get a case reversed based on judicial misconduct.

Taking court reporters out of the courtroom is not a good thing.  The most important tool an accused has is a good record of the proceedings and not having a court reporter there to slow down the lawyers or ask lawyers to repeat what they said is bad for the accused who needs every word recorded.

How can our criminal justice system be improved?

Judges, prosecutors and defense attorneys should not be able to go into the jury room and tell the jurors all the bad information that they didn’t get to hear during a trial.  It taints future jury pools.  I had a child CSC case where the jury deadlocked.  The assistant prosecutor went into the jury room and told the jurors all the bad things my client was accused of doing that they didn’t get to hear.  When I went in, the juror holdout said, “Please tell me something that makes me feel better about holding out for not guilty.” I told the jury that my client had passed a police polygraph.  He felt better but the rest of the jurors probably felt bad.  The foreman followed me out to the elevator and talked about paying the defendant’s bond.  The prosecutor’s office later dismissed the case against the man.  He had been offered probation and he refused.  He said he’d rather sit in jail than plead guilty to something he didn’t do.  Did it help the jurors to know the bad things that my client allegedly did?  Did it help them to know that my client had passed a police polygraph and that they almost convicted a man that was likely innocent?  I had another CSC case where the jury found my client not guilty.  I was told by an attorney that his secretary was on my jury and the judge came into the jury room, after the verdict, and told the jurors that they had let a guilty man go.  That should never ever happen and that should be prohibited by the Michigan Supreme Court.  Michigan needs to adopt the Texas Disciplinary Rule 3.06 (d) that reads: After discharge of the jury from further consideration of a matter with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service.

All line ups should be video-recorded, even if the suspect is not in custody, but especially for all capital cases.  I had a case where my client was accused of robbing a woman and her children.  The distorted surveillance photo looked like him.  The police officer went to the woman’s home to do the photo show up.  He did it on her front porch.  He let her go inside to get her children to come and view the photo line-up.  Of course, the children selected my client.  My client was in the federal penitentiary at the time of the robbery.  If he hadn’t been locked up, it is likely he would have been convicted.  A witness accused that same officer of pressuring him to pick my client as the perpetrator.  I had another case where the witness said the officer told her who to pick.  And a murder case where a witness got on the stand at a preliminary examination and testified that the officer pressured him to pick my client out of the photo line-up.  I think that goes on more than we realize.  Some police officers think they know who committed the crime and they will help witnesses make the so-called right choice.  The line-up is a critical stage of the proceedings.  We don’t take it seriously enough.  There needs to be more protections in place to prevent police tampering, intentional or unintentional.

There is no excuse for there to be a Detroit line-up without an attorney since line-up attorneys are on call 24 hours.  If there is a line-up without an attorney in Detroit that should raise a red flag even if the suspect isn’t in custody.  Good police officers will want a line-up attorney present even if they are not legally required to have an attorney present.

The 90-day rocket docket at Frank Murphy Hall of Justice as to capital cases should disappear.  It appears to be used as a way of squeezing pleas out of the accused.  It is not mandated by the Michigan Supreme Court (last I checked and confirmed in writing) and it doesn’t allow enough time for preparation on complicated cases.

Citizens need to start voting.  They need to “hire” judges who are fair and have the ability to be compassionate at the time of sentencing when the case calls for it.  They need to vote in legislators who spend their time creating jobs rather than Draconian laws.  Many citizens want judges who are tough on crime until their son or daughter is standing before that judge.

Approximately four years ago, a civil lawyer represented Mr. Robert Bashara for civil matters.  A search warrant was executed at the civil attorney’s office and I was told that they tore up his office and the civil lawyer didn’t know what was taken from his office.  As officers of the court, we should not get our offices searched unless we are accused of criminality and even then, a special master should be present during the search of an office to protect client confidentiality.  If law enforcement has probable cause to believe that there will be evidence of criminality in an attorney’s client’s file that it can’t get anywhere else, a motion should be filed before a judge.  The lawyer should get a chance to respond.  If the court determines that there is probable cause that there will be evidence of criminality, the court should have a special master appointed to review the file.  If the special master determines that there is evidence of criminality, then the judge should review it before turning it over to law enforcement.

There should be a specific tax to pay for indigent defense. Criminal defense attorneys need to set up their own task force to determine where the money should come from and then present it to the Governor.

Do you have any specific advice for new lawyers?

Take vacations.  Go to the movies.  Be careful who you confide in about your case even if the lawyer has an impressive reputation.  Many years ago, I confided in a “big time” lawyer about the flaws in the prosecutor’s case for a trial that I had that day.  Later that morning, I saw the “big time” lawyer and the prosecutor talking.  During my trial, the assistant prosecutor seemed to have some inside knowledge about my strategy and fixed the flaws in his case.  I had another occasion where my co-counsel and I were working well together during a preliminary examination and it was clear that the judge was ready to kick the case.  The judge took a break and again, a well-known and respected criminal defense attorney came up to the front of the courtroom to tip the prosecutor off on how to get the case bound over.  He was trying to whisper to the assistant prosecutor.  The prosecutor was busy and the defense attorney could not get his attention without being too obvious.  I foiled the criminal defense attorney’s plan by standing close by between him and the prosecutor.  The criminal defense attorney finally walked away.  We got the case dismissed and it should have been dismissed.  Never underestimate the capacity of some snake-like attorneys to use you to try to curry favor with the prosecutor’s office.

Do younger attorneys have it easier nowadays?  Besides having to walk 5 miles in the snow to the courthouse, we had to deal with some clerks who were cranky, mean, and unreasonable. I saw a clerk, sitting with her back to the judge, throw an order up on his bench for his signature.  Of course, there were also many lovely clerks, as there are today, but the younger attorneys have it easier than we did.  If you were around in the ‘80s, you know what I’m talking about.

by Neil Leithauser
Associate Editor

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