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Tuesday, June 21, 2016
By Michael Nichols
Categories: Michael J. Nichols
There is a growing debate among the legal community about so-called "pay to play" awards. These are awards or even organizations that allow lawyers to claim them or participate just by paying a fee. We do not do that. We participate in organizations that foster and often require continuing legal education -- and we try to lead as well as learn. The Criminal Defense Attorneys of Michigan; DUI Defense Lawyers of America; National Association of Criminal Defense Lawyers; National College for DUI Defense are just to name a few.
On the day that I write this, I am scheduled to be in the second day of trial for a resisting and obstructing charge and 2 counts of assault for an elderly client, who was accused wrongfully by a police officer of a felony. I filed a motion to either dismiss or disclose to me any consideration given to the officer to travel from his new home in the Pacific Northwest, citing a case called People v Chenault, that impeachment material is information that the prosecutor is required to turn over. In the alternative, without the ex-officer's testimony, the prosecutor would have to dismiss under another case called Crawford v Washington. I also argued that the 2 complainants in the 2 companion assault charges did not want to prosecute their elderly father/grandfather and further, that they would not survive a directed verdict motion anyway.
Since that case was dismissed, I spent the entire Monday morning at the 55th District Court in Mason, fighting for a client who was wrongfully arrested for a bond violation. I also argued, with humility and respect, a motion to disqualify the presiding judge. I argued that under Caperton v Massey and Michigan Court Rule 2.003, the judge should be disqualified from hearing a potentially dispositive motion. The reason is because the judge was so intent on seeing the client get help for an acute problem with alcohol that I do not believe the judge could substantively give the accused an objective and unbiased ruling on our motion to suppress. I also argued that the appearance of bias called for the judge to disqualify or "recuse" himself.
Lastly, 2 recent cases were positive outcomes for clients who stood their grounds and are just as much our "hero," as we may be their champion. District Judge Hugh B. Clarke, II dismissed 2 felony misconduct in office charges against a former state representative in a highly publicized case. The judge dismissed the counts after a 2 1/2 day probable cause hearing called a "preliminary examination" (see: "Charges Dismissed Against Former State Representative Cindy Gamrat; Her Lawyer, Mike Nichols Discusses the Hours of Work and Research" on our home page: http://www.nicholslawyers.com).
Just as rewarding was a dismissal by Judge Peter J. Wadel at the 79th Judicial District Court in Mason County (Ludington) in a drunk driving case. The deputy, who pulled over the client and made up his mind almost right away to arrest her, testified at a full day hearing on our motion to suppress the evidence.
The theory was that the arrest was without a warrant. Therefore, the officer had to have sufficient probable cause to make the arrest without a warrant. After eliciting testimony from the deputy that he made up his mind to arrest her before she took the PBT, the deputy's administration of the Standardized Field Sobriety Tests (SFSTs) revealed that he administered none of them according to his training and further, the video of the client's mental and physical condition during the traffic stop totally belied the deputy's testimony about his observations of her condition.
None of this happens without clients willing to stand their ground, fight for their good name and stand side by side with us. Not every case can lead to these results. Most cases are designed to lead to a conviction because that is how the system is tilted. However, with a combination of preparation and opportunity, the luck necessary to realize results like this can happen - and they can happen to you.