What makes a great Michigan criminal defense attorney? part: 3 Preparation of Trial Defense

If there is one key to increasing your chance of winning at trial, it is your attorney’s preparation.



Intense preparation can even the battle field or even tilt it in your favor.“ In preparing for battle I have always found that plans are useless, but planning is indispensable.” – Dwight D. Eisenhower, 34th President of the United States, and former General of the Army. The key is to examine every angle of the case so as to anticipate and adapt to things that happen during a trial.

To follow-up on the military analogy, "Intelligence Preparation of the Battlefield" is a term used in the military that defines the methods used to reduce uncertainties concerning the enemy, environment, and terrain. Battlefield preparation is a continuing process that is used throughout all military operations. A criminal trial is analogous to a battlefield. By design, the trial is an adversarial proceeding. It is a battle for your freedom, to clear your name, to avoid a conviction, and to win. The prosecutor, police, prosecution witnesses, sometimes the judge, and the alleged complainant are on the offensive to convict you. The defense attorneys are the defenders of your rights, the constitution, and work to raise reasonable doubt. Intense trial preparation is the key to “preparation of the courtroom battlefield.” Diligent preparation has tangible benefits:

• Your attorney will know the facts and law better than the prosecutor. Basically, your attorney must outwork the other side.

• A well prepared attorney is in command of the courtroom because he or she can anticipate and adapt to any issue that may arise during a trial. Preparation leads to confidence.

• Confidence is something the jurors and judge can see. The defense attorney’s are persuasive when in command of the facts and case law. The attorney works to build the juror’s confidence in you, the case, and a not guilty verdict.

• A well-prepared attorney can bring an enormous amount of credibility to the defense theory of the case.

Preparation can make or break the defense. Your attorney must know the police report in detail. He or she must read the applicable law and see how it fits into your case. In almost all criminal cases, especially a trial, there is almost always a challenge to the prosecutor’s version of events or a legal argument to be made. In my 16 years as a criminal defense attorney, I have never seen a police report that was 100% accurate.

The reports almost always contain errors of some sort. Some can impact the case while some may not. But, the errors are there. While police officers are trained in how to write a report, they omit facts or just get them completely wrong. People interpret events differently. One person may perceive the car being one color while another would see another. The officer’s interpretation of events may not be the way the jury would see the events.

For example, during the preliminary exemption of a double murder case I handled, a police officer described his encounter with a key witness or participant to the case. In the police report, the officer said the person had a large folding knife on him when the officer searched him. In the police report, the officer stated that the knife was approximately 9 inches. In Michigan, this knife was not a size that people could legally carry concealed. When I asked the officer why he just let the person walk away from the scene of the crime after finding a weapon on him, the officer testified it was a “small folding knife.” During cross-examination, I asked the officer if he wrote that the knife was 9 inches in length. He stated that he did. His definition of a “small folding” or pocket knife was well outside the norm. So, either the police report was incorrect or the officer was not exactly telling the truth as to why he let a crucial armed witness just walk away from the scene of the crime. Just a little more information for you. The person who the officer just let walk away from a murder scene had $20,000 in the trunk of his car that he abandoned at the scene. The individual also had 2 pounds of marijuana in the car.

If there are legal arguments to be made these can move a court to dismiss your case. One thing I really don’t like is when people say, “he got off on a technicality.” There is no such thing. There is the law. If you break the law you get arrested. If an officer violates the law, the “punishment” is suppression of the evidence or even dismissal of the case. We all have to follow the same laws.

In general though, a well-prepared case places a great deal of pressure on the prosecutor. If the “pressure” has real merit, meaning it has a strong foundation in fact and law, it can help to improve plea negotiations. If you read parts 1 and 2 of this series you can see how all of these points tie together. A well-prepared and researched legal defense can create leverage.

While no attorney can ethically guarantee the outcome of a trial, your criminal attorney can guarantee you that he or she will prepare better than the prosecutor. Most lawyers who are set for trial have read the police reports, identified witnesses, found exhibits, and scripted outlines of direct and cross examinations. However, a really skilled and aggressive defense attorney does more. He or she has thought about and anticipated how to respond to trial developments. For example:

• A well-prepared defense attorney can anticipate what a prosecutor may say to object to the defense use of certain testimony. The defense attorney will have case law ready to go to support his position.

• A defense attorney will think about the prosecutor rebuttal arguments to objections that the prosecutor may not have though of yet, or may not even realize.

• A well-prepared defense attorney will work on a way to try to eliminate a key piece of evidence in the case

• A well-prepared defense attorney will anticipate the judge’s responses to issues that will arise and how to answer the judge’s questions. If your lawyer is well-prepared, the judge will tend to see your attorney’s views on the case as being the correct view

A well prepared defense attorney has confidence and can take control of the courtroom. He or she is so prepared that the trial plays out like a well-scripted movie. Through preparation, the attorney knows the actors and through the actors he or she can let the jury hear the defense version of the case. Scene by scene, the defense attorney can direct the story. The jury is looking for something to believe in but they will not be misled.

If your attorney demonstrates commanding knowledge of the facts, the attorney can direct the witnesses in ways that helps the jury see reasonable doubt as if they just watched a movie and could predict the ending. Jurors are smart. They do not take kindly to being misled. If they catch on to an attorney’s deceptions, the case will be lost. However, if the attorney can let the jury see the facts of the case from a different viewpoint, then the jury will keep an open mind during deliberations. That is the role of the defense attorney. But, he or she can only be great in the role through preparation.

As i said at the beginning of this article, a great defense attorney will prepare the battlefield to overcome his opponent.

What makes a great Michigan criminal defense attorney? Part 2: Negotiating a Plea Deal

What is a Plea Deal?

 97% of the cases in the state of Michigan are resolved by way of plea negotiation.  A plea deal is an agreement, after a negotiation between the prosecutor and defense attorney, that settles a case without a trial.  Unlike a trial, the client understands clearly what the outcome of the case will be. Plea negotiations can be time-consuming and go on for months or they can be done quickly at the first pretrial conference between the attorneys.

Judges do not participate in behind the scenes plea negotiations

Plea negotiations, as stated, are conducted between the prosecutor and defense counsel.  Many times clients ask if the judge can reduce the charges on his or her own.  They cannot.  A reduction of charges can only be negotiated between the defense attorney and prosecutor, outside the presence of the judge. The judge does not participate in the process until the plea is ready to be placed on the record.  In some circumstances, the judge may have conversations with the prosecutor and defense attorney to see how the case is progressing.  The court, at times, suggests that the parties should resolve the case.  In more common situations, the judge tells the parties what sentence the court would impose if a plea deal is accepted. 

Only the judge can impose a sentence in a case.  At times, the prosecutor can make a sentence recommendation, but this recommendation does not bind the judge.  It is simply that - just a recommendation.  It is up to the judge to impose the sentence in a criminal case.  However, the prosecutor and defense attorney can agree to a reduced charge.  The prosecutor can dismiss any charges he or she wants without interference from the court.  However, if the plea bargain involves a sentence recommendation, the prosecutor and defense attorney cannot guarantee the judge will follow the agreement unless the judge agrees and states this on the record.

Sentence Agreements

Prosecutors and defense attorneys can agree to a sentence agreement.  Specifically, the prosecutor will make a recommendation to the court for a particular sentence.  For example, the prosecutor can agree to time served, probation, so many days in jail or prison. As I have stated in Part 1, it helps to hire a defense attorney that is familiar with the courts and prosecutors where the case is located because the defense attorney will have familiarity with how judges will accept a plea deal and sentence recommendation. 

In Macomb County, for example, the prosecutors assigned to specific courts and courtrooms know what to expect from the judges.  Depending on the court, some judges may do Cobbs agreements. A Cobbs agreement is a procedure in Michigan criminal case law, based upon the case of People v Cobbs, 443 Mich 276 (1993), which allows a Judge to forecast a sentence the court will impose on a Defendant if the Defendant pleads guilty or no contest.  If at the time of sentencing, the court cannot keep its promise of imposing the particular forecasted sentence, the defendant has the ability to withdraw the plea and start over.

Defense Attorney as Negotiator

 Since most criminal cases are resolved by plea, your attorney must be a skilled negotiator. A skilled defense attorney must first take two things into consideration: (1) What is a reasonable conclusion to the case, (2) How likely would a conviction be if the case went to trial. An attorney must engage in a risk-reward analysis. Specifically, does the risk of going to trial and getting convicted outweigh the benefit of a plea deal? If it is likely that the defendant would win at trial is it worth it to take a plea deal? The assessment of the case must be based on a thorough investigation of the facts. That includes an independent investigation conducted by the defense attorney. A truly great Michigan criminal lawyer knows everything there is to know about their client and the case. Only after a proper assessment of the case has been done, can a defense attorney effectively negotiate with the prosecutor.

A skilled Michigan defense attorney must be able to identify the weakness in the prosecutor’s case. The weakness might not be the overall facts but may relate to the arrest. For example, while the case may not be won at trial, based on the facts, a defense attorney might be able to win a motion to suppress based on an improper arrest. If the lawyer argues that the police violated the 4th Amendment, the evidence might be suppressed. So, the defense attorney may be able to negotiate a good deal for his or her client by telling the prosecutor that there is a definite 4th Amendment problem.

The defense attorney’s role is to create doubt in the prosecutor’s case. That is why I spent a great deal of time discussing “investigation” in Part 1 of this series. The best Michigan defense attorneys find witnesses that aid the defense, identify errors of fact in the police report, and file motions to dismiss or suppress evidence. Basically, the defense attorney must strengthen his or her bargaining position by conducting a proper investigation into the case to see if there are weaknesses. Sometimes there are, sometimes there are not. It is all about leverage when bargaining.

In the negotiating process, “leverage” is the power that one party of a negotiation has to influence the other side to move closer to their negotiating position. A party's leverage strength is based on the party’s ability to award benefits or impose costs on the other side. If a defense attorney has done a proper investigation and determines that the prosecutor’s case is not so strong, the defense attorney can negotiate the case in a way that benefits the client.

Gaining leverage, applying pressure, in a negotiation is one aspect that leads to winning a negotiation. During the negotiation process, defense attorneys must ask: How do I gain leverage over the prosecution in this case? How do I apply it in this scenario?

Prosecutors often start with a great deal of leverage. Michigan sentencing laws have become tougher over time. Prosecutors use that knowledge to force defendants to plead guilty by using the threat of a harsher sentence if the defendant fought the case at trial. I call it “if you play, you pay.” I believe it is unconstitutional because a defendant is penalized for exercising his or her right to have the case proven beyond a reasonable doubt. If the prosecutor is willing to offer a plea if the client avoids trial why overcharge the case in the first place? But, that is a different topic and requires a separate discussion.

Nonetheless, the biggest pressure placed on a defendant is the “trial penalty” or the “if you play, you pay” penalty which means that if the defendant goes to trial and is found guilty the sentence will be much higher than the sentence in the plea deal. Because of the sentencing laws, the reality in plea negotiations is that a criminal defense attorney starts with very little leverage. However, the defense attorney must investigate the case to see if there is a weakness that can increase the leverage for the defense.

What constitutes a good plea deal varies from case to case. You must talk to your attorney to find out what the options are in a given case. Sometimes pleas can be negotiated where convictions are not placed on a person’s criminal history. Basically, it is invisible to potential employers. Other times a plea can avoid jail time altogether.

Advantages of Plea Deals

A case that is resolved by plea bargain has many advantages that can lead to a favorable resolution of a criminal charge. A plea deal can avoid a guilty veridic on charges reached after a jury trial. The decision to accept a plea or go to trial must be based on a fair assessment of the evidence. I often say it is like giving a diagnosis for a patient only after the x-rays and blood tests have been completed. A good attorney can only diagnose your case after a thorough examination of the evidence and the prosecutor’s case. Effective plea bargaining depends on a variety of factors that only a well prepared and experienced criminal defense attorney can determine. A plea negotiation is but one of many effective tools that a defense attorney can use to protect you. Here are some examples of how a plea bargain can protect someone:

• Avoid a criminal conviction with sentencing under HYTA.

• Avoid a conviction under MCL 333.7411 for a misdemeanor or felony drug possession cases.

• Obtain sentencing where dismissal is eventually granted after a period of time.

• Have a felony charge reduced to a misdemeanor; or have multiple charges dismissed with a plea to one

• Avoid registration under the Michigan Sex Offender Registration act by a plea to a non-criminal sexual conduct offense

• Avoid loss of driver’s license

• A plea that retains firearm ownership

• Avoid a mandatory jail sentence

• Prevent other uncharged crimes from being filed against you

• Avoid prison

• Save you money on fines and costs

 The best defense attorneys know when to go to trial and when to negotiate. Your attorney must have real trial experience to back up his or her negotiating position. Other times, a defense attorney can win by not fighting. What does that mean? Say, the evidence against the client is overwhelming. The likelihood of conviction at trial is great. A skilled criminal defense attorney knows that the client has a lot to lose by fighting at trial. So, the attorney will negotiate the case to obtain a result that is better than the sentence and conviction after a trial. Everything that should be done by the attorney must be done in the best interest of the client.

Criminal defense attorneys must investigate the case in order to provide proper advice as to whether a client should accept a plea deal or go to trial. Clients should ask questions to make sure that they understand the advice. Clients should ask why the defense attorney thinks a trial or plea deal is in their best interest. Before you make an important decision, You are entitled to know what alternatives are reasonably available to you.