My Assessment of The Chauvin Trial (Warning Long)

I have taken some grief over my professional assessment of the Chauvin trial, so let me say this upfront. Long before this case, having grown up below the Mason Dixon line, and having experienced blatant and overt racism in my own household, I have always felt that People of Color have not been treated equally and fairly by the system, and they have fared poorly with the police. I have dedicated my career to seeing there is justice for people of color and have been a shareholder in the complete overhaul of the criminal justice system by participating in the creation and implementation of the MI Indigent Defense Commission. I currently work, in part, as an MIDC funded attorney and regularly work weekends and holidays so the accused have a lawyer at a bail hearing. For the last 22 years, my career has focused on court-appointed capital cases (life felonies) and for all 31 years of my practice, 80% of my docket is court-appointed cases. I am faculty for trial skills assuring that other lawyers are the best trained to represent poor people in this state. I also take over 50 hrs of training a year to assure that I, too, am the best trial lawyer I can be.

The System is still broken to this day, I see abuse of discretion in the decision to stop, search and arrest people of color. The system is set up for pleas, not trials. The Chief Justice of our Supreme Court in her efforts for bond reform and the elimination of cash bonds for many offensives sees a system that needs repair. A new court rule recently gone into effect taking away the court’s powers to issue bench warrants for show causes (failure to pay fines and costs) The aforementioned MIDC has created a system where there are investigators, funding of experts, lawyers have mandatory education and fairness in the rotation of counsel. But, it still favors pleading cases and rewards quick resolution. We are slowly changing the institutionalized thinking of the shareholders in the system. Still, way too many cases end in pleads. 

The conviction of Derek Chauvin shows that the criminal justice system works and that police must be accountable. Departments will train harder, more reform will be in place, and, with the help of the Creator, we won’t have more George Floyd, Breonna Taylor, Duante Wright tragedies, and so many more needless deaths.

The grief I am getting is because I have spoken out about how Chauvin was defended. Having successfully acquitted people accused of murder and having tried several of these cases, I feel I have some standing to call our poor defense skills when I see them. Some of my fellow defenders fell into the trap that the evidence was overwhelming. Me to them, Bull Feces, (Having just come out of FB jail me no cuss no more), you don’t need to cosign the government. As you can see, if you have learned and mastered reasons to doubt, very few of the government’s cases are cut and dry. Many of the defenders, however, were with me wondering if the defense attorney had taken the time to become trained in the storytelling method (anyone who went to Gerry Spence’s Trial College or a derivative of it-like I did familiar with this method. In my trial college, we used and still use a stage actor Josh Karton as our lead facilitator) in the process, we tell a story, through witnesses that (1) create reasons to doubt and/ or (2) support an alternative version of what the government is presenting. We start that process in jury selection. Probing individual potential jurors on situations where they were presented versions and had to make decisions. Getting them to talk about them.

We can tell our client’s story through the witnesses, most of the time through cross-examination We also can create doubt in the government’s version by crossing on things that are not there or have explanations that feed reasons to doubt. To be effective, the storytelling method requires us to get the jury to the scene of the crime. Get them inside of the heads of the witnesses. Inside the accused what was going on. Do we really know what the accused was thinking? Create the chaos. All go toward doubt. It requires us to do reenactment so we truly understand what was there. I do my opening and closing arguments in the first person. It is in the “voice” of the witnesses or even my client. It forces me to learn the stories in the case and I often will act them out.

Now to my criticism of the defense, I do not feel that he got us to the scene. He focused on the causes of death. Sure I get it. Did the drugs cause the death? Did he have a heart attack? Where did Floyd’s ingestion of these things end and Chauvin’s actions begin? Maybe doubt huh? Nah? DO YOU REALLY WANT TO GO AFTER A DEADMAN whose death is very disturbing because your client’s knee is seen on his freaking neck for several minutes, Red Herring. Sorry, but there were more fruitful avenues. Did he get the jury into Chauvin’s mind on the scene? NOPE. Every one of those cop witnesses was talking about Chauvin’s actions after the fact. The great question would put them in the scene. You have a resisting arrestee. The body camera supported that. Do a blow-by-blow demonstration. The adrenaline, the noise, your job to keep an eye on the suspect but also protect yourself and importantly your gun. Yes, I have tried more than my share of resisting cop cases and do this to show the utter chaos that goes on. Mine being the suspect getting all kinds of shit yelled at him and the inability of the suspect to comprehend everything coming at him. Then get the scene to putting Floyd on the ground. He had resisted. You still have to be aware of your gun and your personal safety. Trust me, a cop is hyper-trained for his or her safety. That is why you see so many shootings over perceived weapons. A crowd was forming. Adrenaline on board. Is the crowd hostile? Split attention on the crowd and suspect, one who has been resisted. Your training teaches restraint until backup arrives. Did Lead Counsel Nelson really familiarize himself with all the training. Did Nelson really focus on the scene where Chauvin may have been negligent? Gross negligence appears to be in Manslaughter II (See below).

This is the statutory definition of 2nd Degree Murder in Minnesota. (1) causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense. So the jury had to agree that Chauvin was committing a felony. I am assuming so kind of felony grade assault. My questions go to the commission of that underlying felony.

Here is the definition of Murder 3 in Minnesota. Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years. This is akin to our murder two (natural life or term of years with parole eligibility) statute in MI.

Here is the definition of Manslaughter 2nd degree in Minnesota 609.205 MANSLAUGHTER IN THE SECOND DEGREE.

A person who causes the death of another by any of the following means is guilty of manslaughter in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both. (1) by the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another.

Placing a jury into the head of Chauvin is what Lead Counsel Nelson had to do. He did not. He did the number one no no in the case and that is to answer the government’s story. Instead of creating his own story, Nelson tried to just jar the conclusions. One that was already fixed because he did not, for example, take the testifying police witnesses into the belly of the fire. The scene if you direct the story toward the negligence standard of Manslaughter II, then you are creating doubt or clouding it on Murder 3 an egregious act, and surely clouding the commission of a felony. 

I often tell my trial lawyer student’s that the government’s story is rigged toward one end Guilt. It’s simple logic. Your premise that someone is guilty or a wrongdoer and then you consciously or subconsciously look for all evidence to support that conclusion. OJ Simpson’s case was a classic example of a detective (Mark Fuhrman) rushing toward guilt and leaving gaping holes in the process that allowed Robert Shapiro and Johnny Cochran” to drive a Mack Truck full of doubt”- one of my favorites self created phrases when I use in closing argument. A good defense attorney exploits that looking for nuggets that throw doubt into that logical stream. It is not that hard. I tell them creating doubt is so much easier than going to not guilty.

So, I started this with I catch grief. I have spent 31 years honing my skill as a trial lawyer. Pre pandemic I was averaging 8-10 juries a year and the majority of them have been capital (life max). So I in the pit of my stomach, this verdict is unsettling. I would be more accepting of it if Nelson had done some good lawyering. I have accepted tough verdicts when I knew I did my best in telling the story. Not all doubt is bought and sometimes the government’s story is compelling.

It is not incongruent to be a social justice advocate on one hand, yet be dissatisfied with a verdict on the other hand because of poor lawyering. Even if the verdict perpetuates the goal of furthering social justice. To applaud a verdict acquired by poor lawyering, undermines everything I have done to improve the criminal justice system. At least I am consistent.

GPS is not your Geolocator

For those of you who think that your deleted videos uploaded to websites are safe, here is a recent posting in reference to the Capitol riots and Parler Thanks to Bill Perry for the sources 
https://cybernews.com/news/70tb-of-parler-users-messages-videos-and-posts-leaked-by-security-researchers/?fbclid=IwAR0UP0sOYCmFYqU9EwiCcaC4zbr-T_SdrEObbPT0SHLOam-hjieisgyHxds
https://gizmodo.com/every-deleted-parler-post-many-with-users-location-dat-1846032466?fbclid=IwAR06stFbD-NOhD9NGfrA74Le5Jzk_0uvH7aK8wPHCRASqJ1EXkVwcRdstUw
Note these actions were done by a private citizen. Trust me in saying the government has its own tools.
Many of us who do criminal defense, know that the government has tools to do data dumps if they get a warrant for your phone. They can get everything including deleted material and GPS pings that can place your phone in a very specific location. GPS is not your Geolocator 
Be forewarned

What To Do If You Are Arrested

What To Do If You Are Arrested

If ever you find yourself in a situation where a law officer takes you into custody then you must realize that you have been arrested. It is important for every citizen to know what to do if you are arrested and what their rights are.

If you are arrested, the officer concerned will take you to a police station, jail, or any other detention facility. Then you will be permitted to contact your attorney. They will in accordance with the law be obliged to tell you why you have been arrested.

Always ensure that your attorney is present when they photograph, you or take fingerprints of you, and if you are going to be produced before a magistrate for the official filing of charges. Be aware that you may be asked to participate in a line up, asked to give a sample of your handwriting, or provide samples of hair, blood, or urine.

If questioned you have a legal right to remain silent as anything you say may be used against you in a court of law. It is important for you to consult with your attorney before answering any questions and if you cannot afford an attorney the court will provide you with one.

When you are taken into custody the police will take your money and possessions like a watch, bracelet, or chain from you for safekeeping. You will receive a copy of the inventory and all things will be returned on your release.

Depending on the reason for arrest you may or may not be released on bail. Release on bail means your depositing cash or bail bond in court as a security against your release along with an assurance that you will appear in court when summoned. If you have a good standing in the community then the magistrate may reduce the bail or even waive it.

The thing to do is to stay clam, do not panic, and be polite and respectful towards the police officers and magistrates. Answer questions to the point. Try and remember what the arresting officers looked like, their badge numbers, license plate details and so on. Write things down as soon as you get a moment. You will benefit if there are bystanders watching. So encourage people to be present. Never act defiant or threaten about filing complaints.

Never issue statements in the belief that if you cooperate they will let you go. Always ensure that you think before you speak and that too in the presence of your attorney. In case you are arrested in a foreign country ask to contact your consulate or embassy immediately. Never sign any forms or documents until they are vetted by a competent attorney.

Never resist arrest even if you are innocent. Immediately provide your name, address, telephone number, immediate family contact details and the name of your employer. These will be essential to get bail.

Keep your wits about you and things will go well if you know what to do if you are arrested.

Criminal Records For Residents Of Michigan

Criminal Records For Residents Of Michigan

The State of Michigan keeps several different archives of information on criminal records. However, a minor problem is that majority of these sources of Michigan criminal records deal mostly with convictions. Criminal records for Michigan State do not necessarily warrant convictions. In fact, not all criminal records for Michigan result in convictions. And for this reason, databases maintained by the Michigan State Government may not be as comprehensive a source as we would like them to be. Therefore, it is advised that when you conduct a criminal records search, you do not use the state repository as your only source of information. There are also various other sources of Michigan criminal records that are rarely tapped into. These are the following:

State Police

As stated earlier, the most obvious choice for you to search for Michigan criminal records is the state repository. It is the Michigan State Police that maintains the official database of criminal history record information. Here you can find an archive of all Michigan criminal records of felonies or misdemeanors of a serious nature. The Michigan criminal records contained in the Michigan State Police database are actually fingerprint-based arrest records. By statute, law enforcement agencies and court clerks are required to create fingerprint cards for each record of arrest that are sent to the Michigan State Police. If the Michigan criminal records are not accompanied by fingerprint cards, then they will be included in the repository.

Department of Corrections

The Department of Corrections keeps a database of criminal records of everyone who has served time in prison. The Michigan criminal records stored here contain good details about the crime and the database even includes pictures of the criminal. The inclusion of photos are good for minimizing cases of mistaken identities wherein someone who is without a record may appear to have one because of names that are similar. The DOC database only contains criminal records of imprisonment and criminals who have been sentenced to prison do not show up here.

County Clerks of Court

Perhaps the most excellent way to verify whether a Michigan criminal action has been initiated against someone is to check whether there are criminal records of it in the Offices of the County Clerks of Court. Each court case is documented first by the Clerk of Court of the county where the case is to be heard. These documents are based on the information provided during the arrest incident.

Records of Arrests

Michigan criminal records of arrests at the county jail level are excellent sources, too, but they may not be as readily available as the others. However, there are some private sources that you can contract to legally provide you with these.

Michigan Protest Laws

Below you will find information on Michigan protest test laws, including an example of demonstration permit procedures for the city of Detroit. Not all cities in Michigan have the same requirements. Contact local city officials in the location you wish to protest to learn more.

Finally, you should always follow the lawful order of a peace officer while exercising your right to free speech.

Detroit

City Clerk’s Office

  • Apply for a Special Event Permit 60 days prior to the event
  • Pay fee

Unlawful Assembly State Code: Mich. Comp. Laws § 750.543

Failure to Disperse State Code: Mich. Comp. Laws § 750.523

30 Years ago today . . .


I took the Oath to become a Member of the Michigan State Bar.  My mentor, Ron Bretz motioned me into the bar.

Many have often heard me say, that  I am living the ultimate “hippy” dream.  Getting paid to  go up against “the man.” All kidding aside, every day I still wake up ready, willing, and able to be a shield for someone accused of wrongdoing by the government. For years, I have carried the Criminal Defense Attorney of Michigan’s (CDAM)  highest distinction-Constitutional Warrior. I have always brought a holistic approach to my practice. That means my clients and I will interact a lot (I pride myself on being accessible and have been answering my phone directly for years), looking for solutions outside of the case, to better themselves so they will not be on my docket again. As a very young man, I was exposed that we should do for others,  hence, my docket is full of appointed cases, I also have a daily spiritual practice that guides me.

I have met some of the best people in the world. My colleagues have become my friends and I have seen many of them become judges. I respect all the shareholders in the system and know they are human like me and us.

The pandemic has allowed me to have greater respect for this profession. I and my colleagues have gone the extra length for our clients. Doing this, as we, too, are suffering a great financial impact. I remain willing to go into a courtroom and jail (we see our clients behind glass in Macomb County) if called to do so. Because someone is sitting in a cell, and as an 18-year member of the Board of Directors for CDAM, I will resist any efforts to run contested confrontation hearings by remote technology. Specifically jury trials, I fight the voice inside that sometimes rears its head, causing doubts as to whether my practice is dying a slow death.  Way too many signs from the Universe to the contrary.

Thanks for being on this ride with me . . . 

Michigan CPL no longer Qualifies as NICS

On March 3, 2020, the United States Department of Justice Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) determined that the Michigan Concealed Pistol License (CPL) no longer qualifies as a National Instant Criminal Background Check (NICS) alternative permit for possessing and transporting firearms.

Read more here: https://www.michigan.gov/msp/0,4643,7-123-1878_1591_3503_4654—,00.html

How Does a Criminal Defense Lawyer Do Their Job

How does a criminal defense Lawyer do their job

How does a criminal defense lawyer do their job; well everyone is entitled to have their day in court. This means that even if the client is guilty, the criminal defense lawyer must do whatever is necessary so that person will not be convicted of the crime.

How does that work? If you are a public defender, the client will be appointed and you have to meet with them. Before this person is arraigned in court, you will have time to discuss what will be their plea which will then be presented to the judge. Afterward, ample time will be given so you can conduct an investigation, review police reports, and examine the evidence to prepare you for trial.

During the trial, both sides will be able to present witnesses. Some of these are experts and after the prosecution questions this person on the stand, you will have the chance to cross-examine them and vice versa.

Before the trial starts or even during, you can try to settle this matter out of court. You have the right to accept or turn it down but you must first discuss this with your client.

When all the witnesses have spoken and the evidence has been presented, the only thing you have to work on now is your closing argument. You should summarize everything that has happened in front of the jury because the prosecution will do the same so the jury can now go to the jury room and make their decision.

How long will the jury will be deliberating is anyone’s guess. Sometimes a verdict will be announced in less than an hour while others will take longer. When the jury has returned, you will know if the jury has reached a guilty or not guilty verdict.

If the verdict is guilty, then you can appeal the decision to the higher court. If the verdict is not guilty, then your client can walk out of the courtroom as a free man.

The same thing happens when you are working for or have your own criminal defense law firm. The only difference is that clients will go up to you. When they walk in, they will want to interview you first to find out a little about you.

You should be ready to answer questions such as how long have you been a criminal defense attorney, how many cases have you won, do you go to trial often or decide to settle this matter out of court, and so on. How you answer will help them decide if they want to hire you or not.

Another difference between those who operate privately is that you can charge a certain fee for your legal services. You can charge a flat fee or on an hourly basis. This depends on you.

If you are handling a lot of cases right now, be honest with the client and tell them you can’t because you will not be able to represent them to the fullest of your ability in that condition.

So how do you a criminal defense attorney do their job? By operating on the assumption that anyone who is arrested is innocent until proven guilty. This is hard especially if you know your client did it but this is your duty as a public defender. You failed to do so will mean this person will spend the rest of their time in jail.