Completing 2 back to back trials is always a difficult endeavor. To be successful at any trial requires a lot of preparation, skill, and experience.
Recently I defended a difficult case before Judge Cheryl Matthews of the 6th Circuit Court concerning an allegation of Fleeing and Eluding in the Second Degree. A large challenge when it comes to a defense of this allegation is that one of the elements of this offense is that the Defendant has a prior conviction for Fleeing and Eluding in either the 1st, 2nd, or 3rd Degree. It is part of the jury instructions, and it cannot be removed from the jury’s consideration because it is an element and not an enhancement, even though this type of information is highly prejudicial. In this case the best solution was to embrace this weakness and make it part of my defense. The defense presented to the jury was that of misidentification.
The general facts to the case were that an officer from Hazel Park observed a speeding vehicle, and attempted to pull the vehicle over in a residential area. The speeding vehicle briefly pulled over, and fled at a high rate of speed when the officer was about to step from his patrol vehicle. At this point in time the officer claimed he was able to see the driver for about 1 to 2 seconds, from a distance of 45 to 60 feet away, looking at the driver from an angle as he turned from one street to another. The pursuit ended at an abandoned area of the Michigan State Fairgrounds, when the fleeing vehicle smashed through a fence and the driver took off running. Despite setting up a perimeter, and bringing to the scene a tracking dog, the police officers were unable to locate the driver of the vehicle. The officer claimed that my client was the driver after looking at a driver’s license photo through a police database after the fact and concluding that this was the person the officer observed earlier that day.
The vehicle belonged to my client’s mother, and inside the vehicle were credit cards with his name on it. On the same date of the fleeing, a telephone call was placed to Detroit Police reporting the theft of the vehicle in question, which was followed up with a stolen car report at a Detroit precinct the next day. The testimony at trial from Defense witnesses established that a common practice for this family were to leave the keys in the vehicle.
Through the cross examination of the Hazel Park police officer, the jury concluded that the identification of the driver was not reliable. As to the prior Fleeing and Eluding conviction, I argued that this was one of the reasons for the misidentification – the officer’s identification was prejudiced by the fact that prior to looking at the photograph the officer already knew that my client had a prior conviction for the same thing. The officer’s identification was not from what he saw, but based upon what he wanted to believe.
The next not guilty verdict as to all counts was a two Defendant trial involving allegations of Home Invasion First Degree, Assault with Intent to Cause Great Bodily Harm Less than Murder, and Assault and Battery before Judge Michael Warren of the 6th Circuit Court. Originally there were 3 Defendants, but one took a deal to 7.5 years in prison prior to trial. The co-Defendant of my client at trial was convicted by a separate jury, and is facing a mandatory 25 years in prison due to super-habitual sentencing.
The general facts of the case is that the complaining witness was dating one of the Defendants (the one who took the deal), and was at a party with her and the co-Defendant (the ex boyfriend of the Defendant who took the deal), and my client (the brother of the co-Defendant). Later in the evening the complaining witness had an argument with his girlfriend, and was driven back to his home by her. The complaining witness later had a change of heart and wanted to make make up with his girlfriend and invited her back to the house around 3:30 a.m..
The 3 Defendants went over to the complaining witness’s house along with at least 1 other individual in the early morning hours. The statement to the police from the complaining witness was that the Defendants and a fourth individual went inside the house and savagely beat him. A later statement from the complaining witness was that he invited everyone into the house, and a fight ensued inside afterward. The complaining witness’s 80 year old grandmother was woken by the commotion inside her house, and attempted to protect her grandson by pulling one of the assailants off her grandson, and was likely accidentally elbowed or hit in the face. Eventually a 911 call was made, and the Defendants and others fled the h0me.
The complaining witness lied and committed perjury throughout his testimony, which was readily apparent to my jury (but overlooked by the jury for the co-Defendant). The complaining witness admitted that he was the one that was angry that evening, not the 3 Defendants. On top of the anger, the complaining witness was under the influence of a large amount of alcohol and illicit drugs that affected his mood. He did not seek any type of medical treatment for his injuries, which were limited to his face.
Why were there such different findings on this case as opposed to the co-Defendant? It is hard to say. Obviously there were differences in the jury selection and the jury for each Defendant. I also had a different theory of the case than the co-Defendant, because I thought it important to explain why these persons were at the complaining witness’s house at 3:30 am. My cross examination of the complaining witness also was much more extensive. I did not speak with either jury at the conclusion of the case, so I can only speculate as to what resonated with each jury.
Such outcomes as this last case, with the same facts and 3 different Defendants, make the jury system seem more like a case of chance than a system of justice.