Crimes

July 29, 2012

Wrongful Convictions Based Upon Misidentification

Statistical analysis has shown that in cases where an individual was exonerated of a crime by DNA evidence, 25% of those cases involved a misidentification by a witness of the suspect. Unfortunately, misidentifications in some cases have lead to wrongful convictions and lengthy prison sentences. Human memory is not foolproof. Research has revealed that human memory is not like a video recording that a witness need only replay to remember what happened. Memory is far more complex.

The process of remembering consists of 3 stages: acquisition – the perception of the original event; retention – the period of time that passes between the event and the eventual recollection of a piece of information; and retrieval – the stage during which a person recalls stored information. At each of these 3 stages, the memory can be affected.

Recently, a few States have taken a closer look at the use of identification evidence at Court hearings. New Jersey, in the aftermath of a landmark decision (State v. Henderson, 208 NJ 208 (2011)), has adopted a new jury instruction on identification, which is meant to educate jurors on how to properly view identification evidence in consideration of scientific studies as to the nature of human memory. Although Michigan has yet to adopt this instruction, the factors considered by New Jersey Courts are important to consider when building a defense for any person in which identification evidence is used:

July 28, 2012

No Contact Provisions in Domestic Violence Cases

by Hilf & Hilf, PLC

A common bond condition and/or condition of sentence in domestic violence cases is for the Defendant to not have any contact with the complaining witness. No contact generally means no direct contact or no indirect contact. Direct contact includes activities such as face to face meetings, telephone calls, video conferencing, etc.. Indirect contact includes activities such as emails, text messages, letters, having a third party contact the complaining witness, etc. The rationale behind a no contact provision is to protect the alleged victim from harm, to allow the Defendant to seek counseling to address the behavior that lead to the alleged assault (which, of course, is contrary to the presumption of innocence that the Defendant is supposed to maintain), and to help ensure that the testimony of the complaining witness is not tainted through further contact with the Defendant or by the influence of the Defendant. It should be noted that no contact provisions are not limited to domestic violence cases, and can be a condition of bond and/or sentence for just about any criminal matter.

In many domestic violence situations, once the emotions have settled, the complaining witness no longer wishes to pursue a criminal allegation. In some situations this is due to the allegation being made to seem more serious than it really was because of the inflamed passions of the parties at the time of the police involvement. Sometimes the complaining witness lied to the police about what occurred (because of anger, child care issues, jealousy, etc.) and does not want to risk being accused of perjury or alternatively for making a false police report. In other situations the complaining witness does not want to pursue the matter because of the mentality that some people have to blame themselves for domestic violence, and/or feel a psychological need to continue their relationship with an abuser. Sometimes an alleged victim believes that the matter is a family situation that should not involve the Courts. Sometimes the complaining witness realizes that a domestic violence conviction can impact the Defendant’s career (by losing a job, losing an ability to be licensed for a job, losing ability to maintain a concealed weapons permit or ability to possess a firearm, etc.) which hurts his or her bottom line because of the financial support that the Defendant provides. For persons that are not citizens, a criminal conviction can lead to removal from the United States depending upon the circumstances, which also can influence the alleged victim’s thinking. In short, there are many reasons why the alleged victim may not wish to pursue a criminal complaint.

The attitude of most Prosecutors is that they do not care about what the alleged victim wants because the Prosecutor theoretically represents all the people of the community. Many Prosecutors feel that they have to protect victims of domestic violence and remove him victims from a cycle of violence. Also, to not pursue charges may have a negative impact on the morale of police officers who, in the Prosecutors’ minds, work solely to protect the community. County prosecutors are elected officials and are fearful that someone who they chose not to prosecute could end up committing a more serious (and newsworthy) crime against their spouse or significant other. City and Local Prosecutors are often hired by the city (with the Court having influence on the hiring process) and do not want to do anything that could lead to their contract not being renewed or otherwise losing their jobs. Many Judges are far from neutral and lean towards the Prosecution in their rationales and judgment. Although rare and not done by most Prosecutors and/or Courts, it is not unheard of for some Prosecutors and/or some Courts to use no contact provisions coercively to encourage the criminal case to resolve by means of a plea and not through trial.

June 19, 2012

52-4 District Court in Troy, Michigan

by Hilf & Hilf, PLC

The 52nd District Court – 4th Division (which is also referred to as the Troy District Court or the 52-4 District Court) is located at 520 W. Big Beaver Road in the city of Troy, Michigan. The Court serves the citizens of Troy and Clawson, and handles civil, criminal, nuisance, zoning, and traffic offenses that are alleged to have occurred in Troy and Clawson. There is also a probation department within the 52-4 District Court to assist the Judges with individuals that have pending criminal cases before the Court and probationary sentences. The hours of operation are from 8:15 am to 4:15 pm Monday through Friday. The Court is closed for all legal holidays. For persons that are not attorneys, camera phones are not permitted in the building.

The traffic division of the 52nd 4th Division District Court processes tickets and citations written by Troy Police, Clawson Police, and Michigan State Police officers. Non-criminal traffic violations can be paid at the 52-4 District Court, contested at an informal hearing without a lawyer (which usually occurs before the magistrate), or contested at a formal hearing before a Judge. The traffic division for the 52-4 District Court can be reached at (248) 528-0402. You have the right to hire an experienced traffic lawyer for purposes of a formal hearing; a city attorney or assistant Oakland County prosecutor represents the interests of the police department that issued the ticket or citation. An experienced traffic lawyer can, in many instances, negotiate a resolution to the ticket that carries less or no points in lieu of going forward with a hearing. For non-criminal traffic offenses a public defender is not provided.

The criminal division of the 52nd 4th Division District Court processes local ordinance, misdemeanor, and felony criminal matters in which the 52-4 District Court has jurisdiction. Criminal cases can involve both traffic and non-traffic related matters depending upon the circumstances. The criminal division for the 52-4 District Court can be contacted at (248) 528-0400. For criminal prosecutions the person accused has the right to hire an experienced criminal defense lawyer for legal representation or seek the assistance of a public defender if indigent. All criminal cases require the accused to appear in Court to address the charge and cannot be settled by merely paying a fine at the front counter.

June 12, 2012

Bench Warrant Arraignments

by Hilf & Hilf, PLC

There are several situations when a bench warrant is issued by a Court, leaving the Defendant with the question, “how do I turn myself in on the warrant”?

After a crime is allegedly committed, there are occasions when a police department sends a letter to a person who the police and Prosecution are accusing of a crime, indicating that a “warrant was issued for your arrest” and “you must turn yourself into the police department or risk arrest”. When faced with this situation, the individual should first hire an experienced criminal defense lawyer. Why hire a lawyer?

The lawyer is able to contact the detective assigned to the investigation to make arrangements for the surrender of the Defendant. This is done for several reasons:

June 8, 2012

Zero Tolerance Program

by Hilf & Hilf, PLC

Zero Tolerance Program (ZTP) is a drug testing program in Oakland County which can spare a Defendant a lengthy stay in the Oakland County Jail. Any individual convicted of a non violent felony or misdemeanor charge which allows for jail time, and who does not have 2 assaultive felonies over the past 10 years, is eligible. The purpose of the Zero Tolerance Program is to provide an incentive for individuals to live drug free and to be held accountable for relapse.

Typically, if the Judge elects to sentence a person to the Zero Tolerance Program he or she will suspend all or a portion of the jail sentence to allow the Defendant to participate in the Zero Tolerance Program. The Defendant must go into custody initially in order to be drug tested and to go through an orientation class at the Oakland County Jail before being placed in ZTP. The time from sentencing to release (if the Judge allows immediate participation into the Zero Tolerance Program) is usually anywhere from a couple of hours to sometime the following day. If the sentencing Judge does not provide for participation in ZTP, the Defendant will not otherwise be allowed into the program. If the Defendant does not have any issues involving drugs or alcohol, he or she is not likely to receive the benefit of ZTP at the time of sentencing.

The Defendant is required to drug and/or alcohol test as directed (which is usually a random testing schedule) and pay a $15 fee for each drug urine test and a $4 fee for each alcohol PBT test. As long as the Defendant tests when ordered and tests negative, he or she remains free. Failure to test or a dirty drug or alcohol test automatically leads to a jail sentence. The amount of jail time for a first violation is usually short, but the time increases with each subsequent violation. Three or more violations or an attempt to submit fraudulent samples to avoid testing positive usually results in the balance of the suspended jail time being served by the Defendant.

June 5, 2012

Adult Treatment Court in Oakland County, Michigan

by Hilf & Hilf, PLC

The Adult Treatment Court in Oakland County seeks to break the cycle of addiction that leads to criminal behavior through intense Court supervision and participation into various recovery and counseling services. There is also a separate program for juvenile offenders in Oakland County as well.

In order to graduate from the program, the participant must complete 4 different stages. Stage 1 takes 16 weeks to complete, and the remaining stages are for a minimum of 12 weeks per stage. The reward for completion of the program, beyond the hopeful recovery and abstinence of the participant, is the avoidance of additional incarceration (including prison in many instances otherwise) and the ability to move forward with a successful, fulfilling, and productive life.

During the 4 stages of the program the participant serves a minimum of 2 years of probation. As part of this probation the participant must: comply with all treatment court rules and probation conditions; submit and pass all ordered drug and alcohol tests; remain drug and alcohol free; stay out of trouble; attend treatment sessions as directed; make payments toward fees, costs, and restitution as directed; attend bi-weekly review hearings; attend AA or NA meetings; maintain employment or continue with education; comply with mental health treatment (if applicable); provide proof of compliance with all aspects of the Adult Treatment Court.

June 5, 2012

RESULTS Drug & Alcohol Testing

by Hilf & Hilf, PLC

For Defendants in Oakland County that are on bond or bail sentence, and Defendants who are under a misdemeanor or felony sentence in Oakland County, the Court sometimes orders drug and/or alcohol testing. Under RESULTS, the individual is assigned a letter for alcohol testing and/or a color for drug testing. The RESULTS participant must call a hotline number daily- (248) 975-9662 – to see if their letter and/or color is randomly selected for a particular day. If the letter and/or color for the day is selected that applies to a particular Defendant, he or she must report for testing at a designated RESULTS location before a designated time Make up tests are not allowed.

The 2 current RESULTS testing sites are as follows:

Pontiac/ Waterford office at 250 Elizabeth Lake Road, Suite 1700 in Pontiac, Michigan 48341;

June 1, 2012

Pretrial Services

by Hilf & Hilf, PLC

Pretrial Services is a unit of Oakland County Probation which screens individuals and provides reports to Judges and Magistrates in connection with setting bond or bail for criminal cases in Oakland County. Pretrial Services is supposed to provide neutral, non adversarial, accurate reports at initial court hearings and whenever bond conditions are reviewed by the Court.

The person from Pretrial Services assigned to a particular case attempts to interview the Defendant, obtain LEIN (criminal, traffic, PPO) records, and verify any relevant information received. Relevant information includes: employment history, education level, school history, place and length of residence, substance abuse history, mental health issues, criminal history including pending cases, and any examples of the Defendant failing to appear at Court or comply with Court judgments. The information, when possible, is verified by family members, employers, court records, the Secretary of State database, and from other sources.

The report contains a computation of sentence guidelines (if applicable), and a recommendation as to bond or bail. If the Defendant is believed to pose a risk of failing to appear at Court, conditions on the bond are suggested by Pretrial Services. The conditions could include participation in substance abuse testing, substance abuse counseling, AA, NA, refraining from alcohol and/or illicit drugs, surrendering a passport, maintaining employment, tether, no contact provisions, etc. The Judge can order the Defendant to report to Pretrial Services for supervision while on bail or bond. Supervision is assigned to the Pretrial Services Supervision Unit. Violations of any conditions of bail or bond are reported to the Prosecutor’s office and the Court. The Defendant is responsible for the cost of drug testing, alcohol testing, and/or counseling. However, there is no charge for the Pretrial Services report and supervision.

June 1, 2012

Tether and Electronic Monitoring Devices

by Hilf & Hilf, PLC

As a condition of bail, bond, or sentence a Defendant can be ordered by a Court to comply with electronic monitoring. Electronic monitoring provides Pretrial Services, Probation, and/or Parole with an opportunity to closely supervise an individual in the community. There are several types of electronic monitoring devices that are commonly used:

GPS (Global Positioning System) Tether – this allows a Defendant’s movements to be tracked by satellite and reported to the appropriate supervising agency. Hot Zones (also known as Exclusion Zones) are programmed into a computer program that runs in conjunction with the GPS tether that alert authorities whenever the Defendant goes someplace that he or she is not allowed (for example, the home or work of an alleged victim). GPS Tethers are common for persons charged or convicted of Criminal Sexual Assault, Domestic Violence, Stalking, or other crimes with a victim. In order to qualify for a GPS Tether, the Defendant must have a stable address and electricity at the address. Usually if this is ordered the Defendant is not released from custody until the GPS Tether is set up and functioning, and the alleged victim is notified as to the Defendant being released on tether.

Transdermal Alcohol Tether – this type of tether monitors the Defendant’s skin to determine his or her Blood Alcohol Level that is usually attached to his or her ankle by a bracelet. It also monitors whether attempts to circumvent the system are made, based upon tampering with the equipment or a change in the Defendant’s body temperature.

June 1, 2012

WWAM – Weekend & Weekday Alternative for Misdemeanants

by Hilf & Hilf, PLC

In Oakland County, District Court Judges have the ability to sentence a individual convicted of a misdemeanor to WWAM. WWAM is a supervised community service program in which the participant performs work for government or non profit organizations Wednesdays through Sunday. Often WWAM is ordered in lieu of a jail sentence. It is only available for misdemeanor offenses under state law or local ordinance; felony charges are not eligible for WWAM.

The participant in WWAM must report to 250 Elizabeth Lake Road,, Suite 1520 in Pontiac, Michigan no later than 8:00 am on their scheduled WWAM date. The participants are kept until 4:00 pm. Late arrivals will be prevented from participating. Failure to participate in WWAM as directed can result in a probation violation.

The participant must also dress appropriately for their work detail and based upon the weather conditions. Winter boots must be worn between November 15th and March 31st. The participant must also bring proper photo identification (Passport, Driver’s License, State ID), to prove their identity. Lunch is not provided, but the participant is allowed to bring their own lunch.