Gun and Assault Felonies Reduced to Misdemeanors with No Jail

Barone Defense Firm Partner Michael Boyle recently obtained a great result for a client charged with several gun and assault crimes. But that wasn’t the end of the story. It was only the beginning.

A Judge told my client he’s lucky. Is he right?

Imagine you are charged with a combination of three felony gun and assault crimes. Next imagine that if you’re convicted of these crimes, you’re facing a possible total sentence of 8 years in prison. And on top of that, you could also end up having to pay several thousand dollars in fines and costs. Now, imagine that after facing all that, you end up with two misdemeanors, no jail time and a small fine. Sound good? The Judge presiding over the case thought so. He told our client he was “lucky” to have gotten such a great deal. But was it luck, or was it the result of hard work and good lawyering?

The Public’s Perception of the Judge’s Role is Often Wrong

There is a general public misconception that a judge knows everything about your case and has reviewed the contents of your case file thoroughly before entering the courtroom. This is not what really happens. In the majority of cases a judge only knows your name, and the crimes you’re charged with. And there’s a reason for this. Until a case gets set for a jury trial a judge doesn’t know if they might be called up to make a decision about your case that could be impacted by their review of the police reports and other information. They need to remain neutral.

While important, this necessity to remain uninformed, and therefore presumably neutral, does have a downside. From this shorthanded review of the court file, the judge will make all sorts of assumptions about the kinds of people charged with such crimes. The judge will tell him or herself a story about such people, and this story will be informed by whatever he or she has extracted out of the aggregate of all prior offenders charged with such crimes. This might sound like bias or prejudice, but it’s really just the way our brains work. We tell ourselves stories to make sense of the world.

This is exactly why it’s critically important for your attorney to educate the Judge about who you really are, to disabuse the court of these biases and prejudices, and to thereby provide insight into the real story of your life.  The situation described below is from a real case, and our client was facing severe penalties. Our client knew that he could be spending a long time in prison, and that he needed a firm and an attorney that would fight for him, know the law, and tell his story. Therefore, he hired the Assault and Gun Crimes lawyers at the Barone Defense Firm.

How We Turned Our Client’s Misfortune into Good Luck

The Roman philosopher Seneca is attributed with the saying that “Luck is when preparation meets opportunity”. Our preparation for each and every case is the foundation of our historic and future successes. We can never guarantee an outcome on a case, but we can guarantee the effort and the preparation, which allows a client the opportunity to obtain the result they believe is best for them.

The Assault and Gun Crimes Our Client Faced Were Significant

Our client was alleged to have made a felony assault with a deadly weapon, that being a 9mm pistol.  Upon subsequent contact with law enforcement, who had been called to the scene by a witness, our client was asked to remove a utility knife from his work belt. His attempt to ask questions of the police resulted in his being grabbed and taken to the ground by them, which in turn, lead to a felony resisting and obstructing charge.  Also, because the alleged use of a firearm in the commission of a felony he was charged with a crime known as felony firearm, which carries a mandatory minimum of two years in the Michigan Department of Corrections.

Felony assault with a deadly weapon is a 4-year felony and up to a $2,000 fine.  To prove this charge a prosecutor must prove beyond a reasonable doubt first that an assault and or a battery had occurred. A battery is an actual physical touching, and an assault is considered an attempted battery where a reasonable person would believe a battery was going to occur.  There is also an intent element that demands a prosecutor also prove that you intended to injure or intended to create fear of being violently or forcefully touched.  Last, that this was done with a deadly weapon.  The handgun in this case is clearly dangerous weapon, as it is designed to be so, but this charge does not require a gun be used. A dangerous weapon is any object that is used that could cause death or significant injury.

As aforementioned, because it was a firearm involved in the assault it falls into felony firearm category, which is a separate crime but is essentially an enhancement of the crime and demands that a judge, without discretion, must order at least 2 years in prison. And this two years is stacked on top of the underlying sentence, meaning it runs consecutively not concurrently.

Resisting and obstructing, often referred to as R&O is a felony that carries a possible 2-year sentence, and also a $2,000 fine. A R&O is a serious charge and is difficult to defend because it has very broad definition and interpretation.  For example, a R&O can be proven through the active or passive actions of a defendant. The crime can include assaulting, or battering, or wounding, or resisting, or obstructing, or opposing, or endangering a law enforcement officer.  It would require that you used physical acts, or that you threatened physical actions, or that you did not follow an order. Finally, that you knew or should have known the officer was performing his or her duties. Facing all of this our client felt like his life was over. His job, his promotion, everything he worked so hard for in his life was hanging in the balance.

Knowing How Serious it Was, We Went to Work

To obtain a great result, we must understand the charges, understand our client, understand our evidence, and understand the complainant. Understanding all the charges and penalties and what the prosecution must prove is an important step in defending a case but understanding our client’s story and what he or she experienced is the beginning of the preparation stage of our defense, therefore we spend a significant amount of time in understanding the history of our client, the tiny personal details, and the real experiences surrounding our case.

One way we were able to understand what our client was experiencing was to return to the scene. Talking about it serves a role but physically experiencing it is preparation that is crucial. We want to stand where our client stood, stand where the complainant stood, and important for this case was to stand where the witness stood.  What we were able to conclude from our scene investigation was that the witness was not able to ‘see’ what he claims to have seen.  The information that was shared in the police report was result of influenced and tainted investigation.  Interestingly, we also learned that cameras in the area had views of everything except for exactly where the complainant had parked. During this scene visit we used our psychodrama trial skills training, the kind of training few other lawyers in Michigan have, but the best lawyers nationally use to win cases other lawyers thought unwinnable.

In addition to the scene visit, we are also seeking as much documented information we can find having any connection with the complaining witness.  This included a text message thread of threats by the so-called “victim”, threats of physical violence and threats to get our client in trouble at work.  We also met and spoke with witnesses who had previous conflicts and issues with the complaining witness, which included prior police reports, personal protection orders, and other threats.  The credibility of any witness is crucial in any case, but especially so with allegations like this case.  Obtaining all this information is the necessary preparation for defense of the case but most importantly for the preliminary examination.

Next, We Turn All of This Information into a New Story

We knew if we wanted to get anywhere defending our client, we had to “flip the script.” We needed to disabuse the Judge of the story he was telling himself about our client. In the Judge’s mind and in the mind of the prosecutor, our client was the bad guy, he was the villain in their story.  Flipping the script meant demonstrating, using the truth of what really happened, that our client was a victim not a villain. All of our hard work “discovering the story” meant we were able to tell a more compelling story. Best of all, the story was more compelling because it was true. It was not based on bias, prejudice, or conjecture.  That was the prosecutor’s story, the false story. And because it was false it could not stand in the face of truth.

The Making of a Plea Bargain

Having revealed the truth, the prosecution had few options left. They could try to gain a conviction with their falsehoods, or they could try to settle the case in way that was reasonable.  A way that made sense.  A way that was in union with what really happened. But not at first. The prosecutor tried to play his cards close to the vest and made a tepid offer many lawyers may have urged their client to accept. The prosecutor offered to dismiss only the felony firearm and require our client to plead to guilty to the felony assault with a deadly weapon and felony resist and obstruct. Thankfully, on our advice, our client had the temerity to turn down the offer. This meant the case was set for the preliminary examination.

Prior to the preliminary examination we presented much of the information we obtained from our investigation including statements from witnesses who, like our client, had been victims of the complaining witness. We presented the threats made by the complaining witness, his assault and criminal history, and we demonstrated that the witness in the police report would have been unable to physically observe what is alleged in the report. The same report, incidentally, which was drafted by the officer alleging our client has resisted and obstructed.

In the face of this evidence, the prosecutor could see that the complaining witness was not a victim, but instead, he was actually a bully.  More than that, bully was trying to appropriate to his own designs the ultimate bully, the criminal justice system, which he wanted to use as a bludgeon to accomplish his nefarious deeds. Having flipped the script, thereby revealing the truth, the prosecutor had no other choice but to make a new offer to be made. This new offer included dismissing all three felony counts and allowed our client to plead to two misdemeanors including no jail time.

Mission Accomplished

Our client agreed to accept this offer because it allowed him to accomplish his main objectives.  Not only was he now able to keep his job but was also free to receive a promotion. He wanted to move past this time in his life. It wasn’t luck after all.  Luck had nothing to do with it.  The mission at the Barone Defense Firm is to help people win back their lives. In this case, because of all our hard work, we were able to do just that, we were able to win back our client’s life.  At the end of day we can feel good that justice was served, and our mission accomplished.

For this client, preparation met opportunity, and in that sense, the Judge’s statement that my client is lucky is correct.  But we believe that the judge only saw blind luck because he did not know the whole story.

If you are facing criminal allegations, be sure you don’t rely on luck, but contact the Criminal Defense Trial Attorneys at the Barone Defense Firm to protect your rights and tell your story and prepare for the opportunity.

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