You recently experienced an interesting case.  Could you please summarize the main issues?

 I represented a 37-year-old man accused of intentionally submersing his 4-year-old cousin in the bathtub causing 2nd and 3rd degree burns on 91% of the child’s body.  The client had always maintained that the child got into the tub of water himself and that the incident was an accident.  In fact, all the original parties involved also thought it was an accident until the child was seen in Grand Rapids and a specialist said that the crouched position that the child had to enter the water was “not consistent” with an accident.

Where and when was it tried, and who was the presiding judge?

 It was a five-day trial in St. Ignace, Michigan.  The Honorable William Carmody was presiding.

What was the prosecution theory?

 That this was an intentional act.

What was the defense theory?

 The incident was a tragic accident.

Did the case involve any unusual factors?  Were experts needed?

 Experts were very necessary.  The prosecutor’s whole case was built on experts’ opinions.  I challenged the opinion of causation based on Daubert, but I lost on that issue.

 After the guilty verdict, some jurors talked to people in the community and I got a few calls telling me that there were problems with the verdict and that the jury did not understand the specific intent and did not believe that the prosecution had proven that element.  The foreperson told a private investigator that the prosecution did not even prove that my client put the child in the tub but that my client was the responsible adult and that was why he found him guilty.  Thus spun a lot of distress and post-trial motions, which basically went nowhere.  Ultimately, the judge gave my client, a man with no prior record, a sentence of 5 – 15 years, which was the highest that he could under the guidelines as scored by the court.

What did you learn from the case?

 This is a tough question ... I had just finished up trial college and was excited to try some of my new-found training in a real case. The case from the beginning went in very well for us.  Each day it appeared that the prosecution was losing ground and we were gaining. That made the guilty verdict even harder for my client and myself.  It made me remember my prosecution days . . . as a prosecutor I had many cases in which I was the “better” attorney, and I still lost. I learned early on that you had to get affirmation from knowing you did a good job and hard work and not from the final outcome, the verdict.  In this case, I had very much the same feelings. In plain English, I clearly out-lawyered the prosecution, but in the end it did not matter.  I could not get around the jury’s emotion and bias even though they were voir-dired about those issues extensively.  It was hard to get affirmation though when my client went to prison, but I was one of the lucky attorneys . . . my client was appreciative and happy with my performance.  He called me the day after the verdict and asked if I was OK . . . made me promise to not lose my fire and continue the fight . . . and I will.

Any suggestions that you would make to other defense attorneys from what you learned in that case?

 When you have a seriously injured child, do not underestimate the emotional connection that the jury feels.  Also, the Supreme Court has got it wrong . . . jurors DO NOT understand the plain meaning of specific intent . . . ask for special instructions in any case in which specific intent is an issue.

Please describe your practice, including how long you have been a criminal defense attorney?

 I work in a two-attorney office in Menominee, Michigan with a satellite in Escanaba.  My boss does not do any criminal work.  I do mostly criminal defense and family law.  I have been doing private practice work for the last 3 years.  Prior to that I was involved in prosecution for 13 years.

Were you surprised by anything in the transition from prosecutor to defense attorney?  What was helpful to you?

 I thought I would be a career prosecutor.  I never thought that I would be on the dark side (LOL).  I ran for prosecuting attorney after my boss retired and I came in second.  The new guy did not want to keep me in the small three-person office so I was fired.  I was getting married so moving was out of the question.  I luckily found an associate position.  I have surprised myself at how much I enjoy criminal defense.  I truly believe that I am a better attorney and a better person for having this opportunity.  I no longer see ‘defendant’ as black and white words on a police report.  It amazes me how much a few simple acts of kindness and compassion can impact a client.

 Without CDAM and the friends and colleagues I have made there I know I would be lost.  The SADO FORUM, and the CDAM meetings have become for me a huge networking family.  When I need an answer someone is there with one.  When I need to vent someone is there . . . and when I need to be needed someone is there that I can help!

From what you may have learned of practice in other areas of the state, is there anything unique or characteristic about practicing in the Upper Peninsula?

 Of course!!! The UP is a great place to practice law.  A lot of what we do is very laid back and casual . . . but sometimes that can be a problem.  There is a great sense of camaraderie that is felt in the local bar.  But with the laid-back nature one sometimes finds poorly trained law enforcement and sloppy work.  Also, most of the judges are missing in action around deer season (LOL).

Any advice to newcomers?

 Get involved in CDAM and the SADO FORUM.  Go to Trial College.  Challenge yourself to dig deep and try new things in the courtroom and in your writings.  Do not get complacent and worn down by the system . . . which is easier said than done . . . and revel in the opportunity to practice law.  And if you do not like what you are doing . . . find a career that you do like!

by Neil Leithauser,
Associate Editor
 

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