Federal Criminal Charges

In Michigan Allegations of Criminal Sexual Conduct Often Come in the Context of Divorce

Published on: January 21, 2022 | by Michael Boyle

Love is Blind. Justice is Blind. But here is what we SEE in Divorce and the Criminal Justice System.

The Criminal Defense Attorneys near me at the Barone Defense Firm focus their practice on specific and complex criminal defense cases, like those involving allegations of criminal sexual activity and abuse. These criminal sexual conduct (CSC) and child abuse cases are handled in the District and Circuit Criminal Courts when charged by the State or County Prosecutor, and in the Family or Juvenile Court when authorized by Department of Health and Human Services (DHHS) often referred to as Child Protective Services (CPS). The may also often have a federal component, especially when allegations involve allegations of possession, receipt or production of child pornography. We have found that such allegations arise out of or are raised in the backdrop of divorce. The allegations of criminal sexual conduct and child abuse often come immediately preceding, during, or soon after divorce papers are filed, and therefore, the divorce is the common denominator.

According to the statistics in the 2018 State of Michigan’s Department of Community Health Report there were 56,374 marriages, and possibly not surprisingly, 28,186 divorces. This number may be surprising to the romantic, and validating to the cynic, but all can reasonably agree that there are significant emotions involved when a marriage is ending. These emotions, when coupled with children being involved, can lead to allegations for legal leverage and quite frankly to hurt the other party. Motivated by money, or custody, or fear, or anger, allegations of criminal sexual conduct or child abuse put the accused in a very difficult position emotionally and legally.

Forensic Interviewing in a Michigan Sex Crimes Case Involving a Child

Published on: January 17, 2022 | by Michael Boyle

In cases involving allegations of child abuse or physical or sexual assault against a minor will involve a process known as a Forensic Interview. In some cases, a law enforcement officer or investigator will be trained in this method but in the majority of cases the minor will be brought to a specific facility, clinic or center to be interviewed by a trained professional. The goal is to obtain a truthful statement from the child that will lead to fair decision making in the criminal justice system. Michigan, like many other states, have outlined the process and procedures for a proper and ideally reliable forensic interview. One such piece of published material is in Department of Health and Human Services (DHS) – PUB 0779 and is a great tool for attorneys to study, learn, and use during cross-examination, if necessary.

The Forensic Interview is Specifically Designed to Follow a Process Known as Phases.

The Phases include:

Have You Been Falsely Accused of a Sex Crime in Michigan?

Published on: January 17, 2022 | by Michael Boyle

If you have been falsely charged with a sex offense, then it is helpful to understand the role of law enforcement. The same is true of the prosecuting attorney and criminal defense lawyer.

All sexual offenses operate with the same laws and rules. This is true for any degree of criminal sexual conduct. It is also to whether you are facing false accusations or the allegations are true.

A prosecutor must use evidence that is deemed admissible by the Judge. Your sex offender criminal defense lawyer has an absolute right to see all evidence before the case proceeds to trial. Part of the defense strategy will be to keep the jury from seeing the evidence.

Avoiding Sexting, CSAM and Child Porn Criminal Charges in Michigan

Published on: December 21, 2021 | by Ryan Ballard

Sexting my seem innocent enough when between consenting adults, but when under age people are involved you may find yourself charged with a sex offense which could lead to years in prison. Offenses involving child pornography in the State of Michigan are aggressively prosecuted requiring an equally aggressive criminal defense.

Is sexting illegal in Michigan?

Sexting can be criminal and several statutes have been used to prosecute sexting and CSAM (aka child pornography) in Michigan:

What Does Michigan Law Say About Jury Nullification?

Published on: December 15, 2021 | by Patrick Barone

The black letter law in Michigan suggests that juries have the power but not the right to exercise jury nullification.[i] Nevertheless, the practice of law is all shades of gray, and the arguments made by lawyers are often in the penumbras of black letter law.

For example, some Michigan cases have indicated that nullification may be argued where nullification is a recognized legal defense. Because a trial judge may exclude a defense attorney from presenting to the jury evidence supporting a defense that has not been recognized by the legislature[ii], the judge can preclude a lawyer from arguing for nullification.

This does not mean that the power of nullification can be taken away from the jury, and a judge cannot explicitly tell a jury that they are precluded from exercising jury nullification. In one Michigan case where a judge told the jury that jury nullification was inconsistent with the recognized power of the jury, the verdict of guilty was reversed.[iii] In support of their reversal, the court indicate that:

Why Aren’t Juries Informed of Their Right to Nullification?

Published on: December 15, 2021 | by Patrick Barone

In the United States juries are not informed by the judge of their right to nullification because the case law addressing jury nullification remains oblique. It is therefore commonly said that in the United States juries are empaneled to resolve issues of fact, but when it comes to nullification, juries have the right but not the power to judge the law. Consequently, a judge will never directly instruct a jury than they judge the law. The reverse is also true; a judge will not instruct a jury that they may not judge the law. In a criminal case, the litigants are also precluded from advising the jury of their right to nullification.

When looking at the history of nullification in the Untied States, it is clear that while the breadth of jury nullification in our criminal justice system has ebbed and flowed it has never entirely gone away. Today a jury sitting on a criminal case may engage in nullification. Since nullification remains a part of our criminal justice system, the question that obtains is this; how much influence can, or should, the judiciary have in limiting or otherwise influencing the jury’s right to nullify? Said differently, as “keepers of the law,” what role do judges have in explaining or refuting nullification?

In looking at the question of whether or not jurors should be informed of their right to nullify, Irwin A. Horowitz has this to say:

What is the History of Jury Nullification?

Published on: December 15, 2021 | by Patrick Barone

In the United States, we obtained much of our initial original jurisprudence from England. This “precedence” is called the common law. Because the English common law had such an impact on the development of our law it makes perfect sense that the English common law tradition of jury nullification directly influenced early American criminal trials. In the colonies, both the right to a jury trial, and the jury’s associated nullification powers, were viewed as vital to ensuring liberty.

The Founders, all of whom had the personal experience of living under an oppressive and capricious government, also believed in the importance of the right to nullification, particularly when viewed through the lens of liberty and freedom from tyranny. As one historian observed, “The writings of Jefferson, John Adams, Alexander Hamilton, and other founders–Federalists and Anti-federalists alike–all support the belief in a jury responsible for deciding both fact and law.” Similarly, jury trials and nullification were respected throughout the early days of U.S. history.[i]

Nevertheless, as the common law developed the question remained about if and how nullification would be incorporated into our system of governance. While the right to a jury trial is mentioned repeatedly throughout our founding documents, the word “nullification” is absent from all of them. Consequently, the United States Supreme Court had to grapple with this issue, and attempt to resolve it. However, their precedent regarding nullification has never entirely resolved the role of the jury in a criminal case or even the propriety of nullification.

Why Would a Jury Choose to Nullify the Law?

Published on: December 2, 2021 | by Patrick Barone

As previously explained, jury nullification occurs when a jury fails to follow the instructions of the court and instead returns a verdict contrary to those instructions. UN Appeals judge and constitutional law expert Geoffrey Robertson suggests that an independent jury can disregard the strict letter of the law set forth in these instructions and return their verdict of acquittal due to feelings of “sympathy or humanity” or simply based on common sense.

Jury instructions themselves can be part of the problem. Jury instructions are summations of the law and reflect the litigants’ best efforts to distill often complex laws in chunks that can be understood and applied by the jurors when evaluating the facts presented to them at trial.

However, when it comes to criminal cases and the tacit but often necessary application of constitutional law principals, these “chunked summations” of the law are rife with potential pitfalls. According to Duke University School of Law Professor Brandon Garrett, the use of constitutional rights in jury instructions—and in evidentiary practice more generally—is a subject that deserves far more attention in the bar and in scholarship.[i]

Jury Nullification is Consistent with the Concept of Limited Government

Published on: December 1, 2021 | by Patrick Barone

The Sixth Amendment to the United States Constitution provides that citizens accused of crimes have an absolute right to a speedy, public, trial by an impartial jury. But this right to trial by an independant jury trial was not invented in the United States. In an article in the British Library, Author Geoffrey Robertson remarked that the modern independent jury, and their right to jury nullification, arises out of the rights and limitations originally set forth in the Magna Carta.

Notice the difference in what Robertson indicates and what the U.S. Constitution indicates. Robertson refers to an independent jury whereas our Constitution refers in Article III, Sec. 2, simply to trial by jury, and the Sixth Amendment to an impartial jury. Is this a distinction without a difference? Does the Sixth Amendment, in using the word impartial also connote independence?

In the modern age, this concept of impartiality is most often thought of in the context of the jury’s fact-finding role, in which jurors must be “free of prejudice.” But from a historical perspective, might the word “impartial” as used in the Sixth Amendment also reference impartiality to, and independence from, the law itself?

Would Kyle Rittenhouse Have Been Acquitted in Michigan?

Published on: November 19, 2021 | by Patrick Barone

The only way to know the answer to this question would be to actually try the case in front of a Michigan Jury. One thing for certain however is that Kyle Rittenhouse would have been allowed to raise a claim of self defense had the case happened here in Michigan. Presumably, if it was the exact same testimony and evidence, same jurors, judge and prosecutor, then yes, Kyle Rittenhouse would have been acquitted here in Michigan too.

This is all speculation, but a brand-new case in Michigan may shed light on the question. The name of the case is People of the State of Michigan v Leandrew Martin. The case arose out of the Jackson County Circuit Court, and was decided on November 18, 2021. In this case, the Michigan Court of Appeals set aside multiple felony convictions because the defendant’s lawyer had failed to request a jury instruction for self-defense despite the fact that a claim of self-defense had been established at trial. The court held that this mistake was so bad that the verdict had to be set aside finding that the defendant’s attorney was “ineffective.”

The case arose out a bar fight and during the fight the defendant shot ten times into a crowd, leaving one person with a serious injury caused by ricocheted bullet that struck the foot. The defendant was a felon and was not in lawful possession of the pistol. Because of this the defendant’s lawyer thought he was not entitled to raise self-defense. It’s not clear why the defendant’s lawyer believed this to be true because Michigan’s laws of self-defense do not require that a defendant be in lawful possession of the weapon in order to raise a claim of self defense.