Please tell us about your background, where you practice, your areas of practice, and how long you have been involved with criminal defense.

Currently I practice in Detroit and Wyandotte with Nicole Smith. We do federal and state criminal defense and family law. I’ve been involved in criminal defense for six years and in criminal law for 10 years, and currently I am on the Board of Directors of the Criminal Defense Attorneys of Michigan (“CDAM”) and teach in its Evidence Boot Camps.

I became a lawyer after a career in TV news. I was a producer and writer at Channel 4 & 7 in Detroit, and I wanted a saner schedule so I went to law school. I graduated from U of M Law with honors and clerked in the United States Court of Appeals for the Eighth Circuit and the Eastern District of Michigan for several judges. I worked at Butzel Long, but my first love was always criminal law. I had clerked in law school for the Wayne County Prosecutor, and, after clerking, I worked at the Oakland County Prosecutor’s Office. I was frustrated with the Oakland County prosecutor and remembered a conversation I had with Bill Swor when I was a clerk.  He told me if I ever wanted to go into private practice to call him. I don’t know if he thought I ever would, but when I did call, Bill helped mentor me and redefine me as an attorney and person.

Please tell us about one of your interesting cases.

I was second chair for Bill Swor on United States v. David Stone, i.e., the Hutaree Case. The case was fascinating. The full weight of the government was on a bunch of backwoods, everyday citizens who were loud in their views, negative toward the government, but harmless in reality. The government came at them for years with the full weight of its investigatory power and then did everything it could to put Mr. Stone and the co-defendants in prison. The trial lasted two months. At every turn, the government’s testimony came up empty or contradictory. It could not present a single affirmative action by the defendants to prove the alleged conspiracies of sedition and intent to make weapons of mass destruction. In the end, the Court granted a Rule 29 motion dismissing the government’s case before the defense presented its case. When we spoke with the jury afterward, they were upset to the point that one juror wanted to contact someone in D.C. to complain about what an utter waste of resources this case had been.

The truly remarkable aspect was watching the attorneys in this case. The jury described Bill Swor as a professor, working through each witness and motion. Jim Thomas was eloquent and precise in his representation. Richard Helfrick put on a seminar on how to carve up a witness on cross exam. Art Weiss was the height of professionalism. Henry Scharg showed how a disciplined lawyer can win a case by being silent. Michael Naughton made the case come alive with technology and made mountains of discovery easily accessible through his expertise. And Michael Rattay was stellar in being the most prepared attorney of the whole bunch.

Really, the most amazing part was being a small part of a group of attorneys who are amazing in their own right but together were a dream team of defense attorneys.

What were the theories of the parties?  Were experts required?

Our theory was that our client was full of talk, at times obnoxious and offensive talk, but all it was, was talk. Our client and the co-defendants never made a single step to advance the alleged conspiracies. As offensive or crazy as his prophetic end times and conspiracy theorist ramblings may have been, we upheld our client’s First Amendment right to free speech and his Second Amendment right to own guns and use them in the woods as he saw fit.

Experts were used, including firearms experts, who showed that the government’s simulations of pipe bombs built by our client and co-defendants had nothing to do with what really was built. We also had a jury expert, which was very interesting as we picked the jury. I learned about what to look for in a juror that is outside the box of what we typically think.

What trends – good or bad – have you noticed in Michigan criminal jurisprudence?

I don’t think enough is said about the prosecution of teenagers as adults. We are setting up 17-year-olds – and some even younger – for terrible abuse in the name of being tough on crime. From 2002 to 2013, 20,000 juveniles were jailed, imprisoned, or put on adult probation. About 11,000 of those are for non-violent crimes. At 17, or younger, these kids are not done with high school, but they are already labeled felons and are likely repeat offenders.

Second, this notion that we should bill the indigent for appointed counsel is offensive. The point of Gideon v. Wainwright was our society should provide counsel to those who cannot afford it. In the name of being tough on crime and fiscally conservative, we tax the poor, many of whom come to our courts mentally ill, unable to work, and set up for failure. They are damned if they proceed on their own and, too often, damned if they do not.

Do you have any specific advice for attorneys new to the practice of criminal law?  Any specific pitfalls that might cause the attorneys extra concern?

My best advice is don’t do it alone. Find a mentor, workshops, CLE’s. Ultimately, you don’t know what you don’t know when you first start out. With that in mind, don’t be afraid to copy someone’s system. Trying to create a pattern or system of practice is slow going at first, and there really is no point in recreating the wheel. Finally, try cases. Don’t be afraid to take cases to trial.

Mr. Mihas’s website:  http://smithmihas.com/

by Neil Leithauser
Associate Editor

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