Prosecutors in Bed with Debt Collectors?

Below is a NY Times article about how prosecutors are threatening criminal prosecution to help debt collectors collect on a civil actions.

http://www.nytimes.com/2012/09/16/business/in-prosecutors-debt-collectors-find-a-partner.html?_r=1&nl=todaysheadlines&emc=edit_th_20120916&pagewanted=all

Take a break from the Libyan embassy crisis to find out what your local prosecutor doing…

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Is Big Brother Surveilling Your Apple iPhone or iPod?

Is Big Brother watching you?

Two news articles were released today regarding a purported 12 million Apple IDs that were in possession of the FBI, but stolen from them by hackers known as AntiSec. One article is from Forbes magazine; the other is from The Washington Post.

Here are both articles:
1) Forbes

2) The Washington Post

Occupation: Drug Dealer?

You have the right to remain silent. Anything you say or do can and will be held against you in a court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights as they have been read to you?*

Deaundre Barnes kind of knew what the Miranda warning meant when he was arrested for allegedly stabbing a man for interrupting his argument with his girlfriend. According to the Tampa Bay Times article, when he was arrested by the police, Mr. Barnes refused to answer their questions. However, Mr. Barnes didn’t get it all right; he apparently slipped up at one time or another because the article states that he listed his occupation as “drug dealer” on some kind of paperwork. Not a smart move, given that Mr. Barnes is allegedly on drug offender probation.

The substance of Miranda is that you do not have to answer any questions by the police. Anything you say can and will be used against you in court. Many cases that come across my desk involve a criminal defendant who told the police everything. Many times those defendants are surprised to learn that the police are using their own statements against them. “I thought they were supposed to Mirandize me,” is probably the second-most common statement I hear from clients. What those clients didn’t know is that the police are free to ask any questions they want – even lie – to get answers during their interactions with suspects and/or witnesses. It is only when the police arrest someone, or a reasonable person would feel that he or she is not free to leave that the police need to Mirandize someone.

Up until that point, the police can ask any questions they want to – but a person would be a fool to answer them. Simply put, no one is required to answer any of their questions. Instead of answering their questions, a person can respond with “Am I under arrest officer?” Chances are, if the officer wants to make an arrest, he’s already came to that conclusion long before anyone asks him, and nothing a person says is going to change his mind at that point anyway. By asking him, the person being questioned puts the officer on notice that the person knows what his rights are. If the officer responds to the question by stating that the person is under arrest, then it would be perfectly within a person’s right to ask to be Mirandized or to refuse to answer any of his questions, since we all have the right to remain silent. Once a person invokes his or her right to remain silent (something that must be done expressly), the police must stop all questioning, if that person is under arrest. If the officer tells a person that he or she is not under arrest, (understand that this could be a lie) it is still tell important to state that none of his questions will be answered. It is also important to ask politely, “can I go now?” Note: Just because a person is not under arrest does not mean that he or she is immediately free to leave. For example, if someone has been stopped for a blown tail light or for speeding, he or she can’t just drive off until the police officer has completed the traffic stop.

*The wording of Miranda rights vary depending on the jurisdiction, but the substance should remain the same. This one is used by Alaskan State Troopers.

Michigan Criminal Defense Attorney Arrested and Charged with Conspiracy to Commit Perjury

Detroit, MI — Criminal Defense Attorney David Dunn was arrested in Circuit Court Judge Timothy Kenny’s courtroom at the Frank Murphy Hall of Justice on Monday. Mr. Dunn stands accused of conspiracy to commit perjury, witness interference, obstruction of justice, incitement of perjury and solicitation to commit a felony. All of the charges stem from his alleged attempts to convince a witness to commit perjury in a murder trial.

According to this MSNBC article, the Detroit Police and FBI were tipped off and began to conduct surveillance on Mr. Dunn. The article also claims that those agencies recorded Mr. Dunn trying to pay the witness to lie at trial. If convicted, Mr. Dunn could face up to life in prison.

What is perjury? Black’s Law Dictionary, the bible of legal definitions, defines perjury as the act of deliberately making a material statement that is false or misleading while under oath. It is a serious charge that impacts not only Mr. Dunn, but also the criminal defense community on the whole, the courts, and the criminal justice system.

Criminal defense attorneys abhor this kind of behavior. Our job is to seek out the truth and shine a light on it for jurors and judges alike. Often, our job is hard. People lie. They cover it up. They weave lie within lie. They try to hide their wrong-doing, to save face, to hurt someone else, to gain a tactical advantage, to win, or to cast their actions in the best possible light.

Mr. Dunn faces serious charges that could end his career and land him in jail. I do not know Mr. Dunn, personally or professionally; according to his Facebook page, we share 5 mutual friends, but I have never met him. I only became aware of his circumstances through the news media. Many of my colleagues are concerned about the allegations and the corresponding news coverage. It reminds them of a lie in a 2005 drug case that implicated former prosecutor Karen Plant, who was the prosecutor in the case, but also former judge Mary Waterstone, who presided over the case. (See ABA Journal article and The Michigan Lawyer blog). Ms. Plant ultimately pled guilty for allowing a witness to lie during a criminal trial and former Judge Waterstone was on her way to trial back in April of 2011, but I’m not sure what happened with her; nevertheless, her career and reputation suffered greatly. Mr. Dunn could share a similar fate – even if acquitted; if found guilty, he faces up to life in prison.

Financial “Irregularities” at Monroe County Road Commission

ImageThe Monroe Evening News recently reported that “irregularities” were found in the Monroe County Road Commission’s accounting records. While the article did not elaborate on what the irregularities were, it did state that both the Monroe County Prosecutor’s Office and the Michigan State Police were conducting an investigation. The article also stated that the employee connected with the accounting issues had been fired.

The road commission opted to have the state police and the county prosecutor to investigate instead of paying an outside firm to do an audit of its records. Robert “Mickey” Duffey, the board chairman of the road commission said it was a cost saving measure. However, it is more likely that the road commission considers the irregularities to be evidence of a crime; which means, the road commission not only wants to save money, it also wants to find more evidence to prosecute the individuals involved.

Perhaps, the Michigan State Police and the Monroe County Prosecutor will find evidence of embezzlement, misappropriation of funds, or some other fraudulent schemes to deprive another of honest services through bribes or kickbacks. Hopefully, those agencies will go over all of the road commission’s financial records with a fine-toothed comb and bring to light any corruption. In doing so, I hope all the parties involved remember that our system of justice provides that people are innocent until proven guilty beyond a reasonable doubt.

Sometimes the police find evidence (or what appears to be evidence) that upon first glance looks incriminating, but further investigation reveals that it is not. To borrow a metaphor from a talented and passionate criminal defense attorney, Alona Sharon of Royal Oak, MI, the crime the police are investigating is one big puzzle. There are lots of different pieces; there are big ones, little ones, some with male parts, others with female parts, and the one thing they all have in common is that when put together – correctly – they form a picture. When the police finish their puzzle, they should know who committed the crime, how it happened, where it happened, and to whom it happened. In short, they should know the truth.

There are basic rules to puzzle-building. First, you frame the picture by putting together all of the pieces with straight sides on the outside. Then, from this frame you work your way inward. You make sure you have all of the pieces. You make sure all of the pieces go to that puzzle. You also make sure they really do fit together. If they don’t, and you just mash them together, your picture will be distorted. It takes patience, focus, an open mind, attention to detail, and the ability to admit when this little piece here doesn’t really go where you thought it did, even when you really, honestly believed that it did.

Sometimes, the people conducting a criminal investigation face tremendous amounts of pressure to solve the crime. Their bosses put pressure on them, the victims and the victims’ families put pressure on them, their peers put pressure on them, the public puts pressure on them, and they put pressure on themselves.  It’s easy to succumb to that pressure. They want to do a good job, but they just start mashing pieces together that don’t fit. Maybe they started off wrong by starting on the inside instead of making sure all the pieces with the straight sides are on the outside. Maybe they got a bad puzzle box with pieces from different puzzles in it. Who knows how it happens, but it happens; when those pieces get mashed together, even if most of them are right, the picture comes out all wrong. It’s not the truth.

If you are being investigated regarding accounting “irregularities” or some other crime, hire an attorney who will make sure the picture on the puzzle looks the way it’s supposed to look. You don’t want to go from being an unnamed person in a newspaper article to being a headline, or worse yet, behind bars. Just remember, if the police question you, or want to question you, you have the right to remain silent. That means, shut your mouth. Don’t say anything, except, “Thank you, officer. I appreciate what you are doing. But, I have the right to remain silent and I am exercising that right.” Nothing else you say, or are going to say, will help you.

Finally, if you have any leads into the Monroe County Road Commission accounting irregularities, please call the Monroe County Prosecutor’s Office at (734) 240-7600 or the Monroe Post of the Michigan State Police at (734) 242-3500.

<a href=”http://www.hypersmash.com”>HyperSmash</a>

Restitution: What every criminal defendant should know.

Did you know that Michigan law requires persons convicted of crimes to reimburse the victims of those crimes?
  • Did you know that the amount of restitution is often wrong?
  • Did you know that you can challenge the amount of restitution before it is ordered?
Before I began representing them, my clients didn’t…. One of them told me, “I never had anyone fight for me before; I was just told I had to pay it (meaning restitution).
The authority for restitution comes from the Michigan Constitution 1963, Art. 1, §24, the Restitution Act, and the Crime Victim’s Rights Act. All of the above provide that victims of crimes have the right to restitution. The right to restitution has been construed to mean that a court must order a criminal defendant to pay restitution at the time of sentencing, if:
  • victim of a crime has suffered a loss; and
  • that loss is the direct/proximate result of the criminal defendant’s actions or his/her course of conduct.
However, restitution is not a foregone conclusion; it may be challenged. The law states that criminal defendant’s may dispute restitution at sentencing. This is critical, because sometimes the amount of restitution is wrong, or it shouldn’t be ordered at all; because, the victim has already been reimbursed or the property was returned or never actually taken, destroyed, or damaged.
When the amount of restitution is disputed, the court must conduct a hearing to determine whether restitution is appropriate and how much that restitution should be. Prosecutors have the burden of proof at this hearing. They must prove:
  • the loss was caused by the criminal conduct the defendant; and
  • the fair market value of the loss; or
  • if that cannot be determined, the replacement value of the loss.
Often, people who are convicted fail to challenge the amount of restitution; they realize later they should have, but the opportunity is (by then) forever lost. An attorney familiar with restitution issues could have helped them. If you are facing criminal charges or have been convicted but not yet sentenced, and you would like to protect yourself, contact me. Criminal convictions are expensive enough without having to pay hundreds (or thousands) of dollars more than you should.