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In The News

Monday, April 22, 2024

A Vicious Assault on an Elderly Gentleman ... Except it Wasn't

By Michael Nichols
Categories: Michael J. Nichols

The jury is the most powerful aspect of the criminal justice system in the greatest imperfect system known to human history. A jury of the peers of both the complainant (also known as “the victim”) and the accused citizen, recently roundly rejected a tale made up out of whole cloth in which an elderly gentleman accused a hard-working salt-of-the-earth business owner of a vicious assault that resulted in over $25,000.00 in damages including wage loss, travel expenses and a new phone.


In 25 years of practicing law, I heard many stories during initial telephone consultations and in-person meetings. I think that one develops a good feel for who are good people who just need someone to help them have their “best day in court.” Here is a story:

“D” and his wife “A” own a tree removal service. They started it as young kids with very little cash to their name, scrounging pennies to buy cherry-pickers and chain saws. For over 25 years, they build their business in a Michigan county with contracts, bidding jobs, working hard and doing the work. On a beautiful late spring morning, they are working on a Thursday to clear some trees along a rural, dirt road that the county road commission intended to make improvements on but they need the tree removal first.

As “D” is getting set up to start the work on a stretch of the road, getting his truck set up to start removing trees so the road commission has 30 feet of space with which to work, the so-called victim comes rolling up in a white Mercedes SUV, parks his whip right up against the nose of “D’s” bucket truck and goes ballistic. Absolutely bananas.

Then Mr. Victim whips out a cellphone. He sticks the phone right in “D’s” face. It is an offensive touching. An offensive touching that is not in self-defense and not an accident is the very definition of an assault under Michigan law. The phone is shoved right in D’s face. D grabs the phone and “chucks” it behind him into the ditch.

D goes to work up in the cherry-picker. He gets the work done, cuts a 30-foot clearance for the road commission and in the meantime, Mr. Victim is down on the ground. Mr. Victim is yelling at A; he has his phone, or maybe he has a new phone but he is videotaping. He is taping and yelling; yelling and taping.

D comes down and tells Mr. Victim that he threw his phone; needs him to move his car and then he walks back around behind Mr. Victim’s white Mercedes SUV so he can see if he can pull his truck forward or if he will need to back up and drive around.

Mr. Victim cannot have this; he cannot stand this; he is a medical professional who cannot imagine a “tree cutter” getting the better of him. Mr. Victim gets into his car; reaches into the passenger compartment and comes walking toward D with at least 1 hand in his pocket. D says “what is in your pocket?” “take your hand/s out of your pocket.” Mr. Victim won’t respond but just keeps walking at D and D slugs him as soon as Mr. Victim is “too close for comfort.”

That is self-defense under Michigan Law (Michigan Standard Criminal Jury Instruction 7.22). If you respond with that amount of force and only that amount of force needed to repell an assault and battery then you are justified and you are not guilty. You do not have to be perfect, you can be wrong about what was going to go down as long as you held a reasonable belief based on all the facts and circumstances.

That is exactly what the jury said: Not guilty on count I (the punch); Not guilty on count II (the phone chucking).

A pretty straightforward story except for 1 thing: Mr. Victim picked and chose what portion of cell phone video to give to the cops and no one “checked” him on it. Out of about a 15 minute exchange, the video that was produced was 3 minutes and 11 seconds. Yet, there were 2 versions of it and the cops never examined the actual phone that was used to make the recording. Hmmmmmm

I don’t need no fancy law books to tell me that something is rotten in Denmark. Yet, even after we sent the videos to an expert, Ken Glaza and K&S Forensics, we could not prove that the video was altered: no interruptions in hashmarks; no signs of audio alterations; just a sketchy, susy guy.

We tell the jury that what we want them to do is consider how long this whole thing took, based on the testimony of about 4 witnesses and how little video that they were provided. The judge grants a special jury instruction that both videos were copies, that a file name was changed and they could consider that in deciding whether the video was the whole picture. It was not, the jury agreed and in addition to that – they saw right through Mr. Victim and his manipulated evidence.

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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.