Articles Posted in Courts

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Nervous about court?  Not many people like to testify under oath.  Scary, intimidating, emotional are how some describe court.  Others may also describe it is liberating (believing that “the truth shall set you free”).  Some people get enjoyment or feel it is a civic duty to tell on other people.    Their are also expert witnesses that are sometimes paid to offer an opinion in a trial.  There are many different ways and motivations for how someone becomes a witness to a case.  Regardless of the means that someone becomes a witness, knowing what to expect and how to handle the experience is critical.

  1.  Lawyer up!  Everyone has a constitutional right to retain legal representation in court.  It does not matter if you are just a witness to an alleged crime or a particular circumstance – you can hire a lawyer to help you.  There are several advantages to having your own legal representation.  First, you are able to have someone to consult with about your anticipated testimony.  Second, your lawyer can help you assert any privileges that you may have (5th Amendment privilege against self incrimination, spousal privilege, etc.) when applicable.  Third, when you are represented by counsel, the Prosecution and Defense counsel are supposed to go through your lawyer in an effort to question you.  Hence, having a lawyer is like having a buffer from other lawyers.  Fourth, it is difficult to be in court alone.  Having a lawyer can help with the stress and emotional strain of having to appear in court and testify.  Fifth, the lawyer can help assert your position about a case, when appropriate.  For example, in many cases the Court will order no contact between the Defendant and his spouse when the Defendant is charged with domestic violence against his spouse.  Sometimes domestic violence cases are blown out of proportion, and the lack of contact causes a hardship.  Having a lawyer may help convince the Court that the removal of the no contact provision is appropriate and necessary under the circumstances.  Sixth, having a lawyer can help prepare you for what you might be asked in Court.  Seventh, when appropriate a lawyer acting on behalf of a witness can try and negotiate with the Prosecution about the witness’s immunity from criminal prosecution.
  2.  Listen to your lawyer.  When your lawyer gives advice, it is probably for good reason.  Your lawyer more than likely has the educational background and courtroom experience needed to offer sound legal advice and to develop a strategy in connection with a case.  Persons who don’t listen to their lawyer often act at their own peril.  For Defendant’s, even though they have the absolute right to testify or remain silent, they should consider the advice and strategy of their lawyer in making their decision to testify or elect not to testify.  Witnesses, when properly subpoenaed, have no choice in the matter unless there is a privilege that can be asserted.  Properly subpoenaed witnesses must appear at court when subpoenaed and testify under oath when called.  It is important for a witness to realize that a prosecutor is not their lawyer; the prosecution represents the government and not any particular citizen.  Also, the only person who a defense lawyer represents is their client.  The defense lawyer is loyal to their client only, and is generally unable to represent witnesses due to a conflict of interest.

The great outdoors is suddenly not so great when DNR writes you a ticket.  The freedom you felt enjoying nature is now crushed and your day, season, and future hunting seasons are maybe ruined.  Many people do not know that some hunting violations (if convicted as charged) require a mandatory jail sentence.  Unfortunately, in the eyes of the State of Michigan the wildlife is its property and it determines the rules as to how you can lawfully possess it.  Ignorance of the law is not an excuse – that is why they give out the Michigan Hunting and Trapping Digest at the start of every season.  Because the state of Michigan are stewards of our natural resources, the DNR is charged with the enforcement of any violations of conservation laws and they take that responsibility seriously!

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It is always a good idea to understand the process of how a DNR officer may perform his or her duties.  This is even important for the sportsman or sportswoman who tries to do everything by the book.  Why?  It is possible for someone to unintentionally violate the law.  The conservation laws change from time to time.  Perhaps you were not aware of a change as it related to baiting?  Maybe the fish possession or size  limit changed from one season to the next?  In some instances you might be accused of doing something unlawfully even through it isn’t true.

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The following is my list of the top 10 Michigan DNR Investigation Strategies for Wildlife Violations:

Jail for a probation violation?  Seriously?  With a probation violation the Judge has that option.

Being incarcerated is no place for anyone to be.  Losing your job, losing a place to live, having to start over from scratch – life is hard enough without all this stress.  But maybe the Judge made things impossible.   You worry about work, worry about family, paying bills, and on top of that the Court is having you drug test, go to support meetings, hours and hours of community service.  It seems like maybe the Court does not want you to be successful.  You try your best and you still receive a letter in the mail for probation violation.  Your heart is racing.  Stress, anxiety, fear take over.  You ask yourself what should you do?

These are 12 proven and effective strategies that give you the best chance of avoiding jail.  This advice is from a seasoned lawyer with years of experience both inside and outside the courtroom.

A common question when someone is arrested for retail fraud is: “Will I be placed on probation?”.  Another common question is:  “Can I avoid Jail?”.  When a person is arrested there is often a fear of the unknown.  “What will happen to me?”.  “What will the Judge do?”.  Although probation is common for shoplifting, it is not guaranteed.

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All retail fraud/shoplifting cases are criminal cases, which means that the Judge always has the discretion to impose jail as a condition of bond or sentence.  There are a lot of different factors that can influence what will happen:

  1. The Defendant’s prior history.  Obviously, the worse a person’s prior record the more likely incarceration becomes an option.  This is especially true when the prior history also involves shoplifting.  When the charge is a Felony (1st Degree Retail Fraud or Organized Retail Fraud), the Defendant’s prior record is a factor in the computation of sentencing guidelines.  In Michigan, sentence guidelines are an advisory sentence range for a Judge to consider which is determined by the scoring of prior record and offense related variables.  Although sentencing guidelines are advisory, they are influential in terms of how a Judge determines the sentence.

No contact orders are very common when it comes to domestic violence allegations.  This type of order prevents a Defendant from having contact with an alleged victim.  It may also prevent a Defendant from returning to a home address.   These types of orders cause a lot of chaos, disruption, and hardship in people’s lives and family.  No contact orders are also often contrary to what the alleged victim wants.

Removing a no contact order, in many cases, is not easy.  Violations of bond conditions including no contact orders can lead to jail.

How to remove a no contact order.  There is no guaranteed method, because Judges have a lot of discretion in Michigan when it comes to setting the conditions of bond.  However, there are a number of different steps that a Defendant may take that will help him or her improve the odds that the no contact order will be lifted:

A charge of retail fraud can have lasting consequences on a person’s life.  In some circumstances a conviction for retail fraud may result in any of the following: loss of employment; licensing issues for professionals; immigration consequences for persons that are not United States citizens; trouble with traveling to foreign countries due to visa issues; damage to reputation; etc..  When placed on probation for retail fraud, there are potential consequences for being on probation, including: incarceration; financial issues (payment of fines, court costs, restitution, crime victim’s rights fees, cost of drug/alcohol testing; cost of counseling); loss of rights/privileges; inability to travel out of state; loss of days of work due to court related issues; fear; stress; etc.

In some instances the case is defensible, and you need a great lawyer to fight for you.

In some instances the case is not defensible, and you need a great lawyer to help you make the best out of a bad situation.

In Michigan when a person is accused by a store, detained by loss prevention, or arrested by police, for retail fraud it is not uncommon for that person to receive a letter in the mail asking for civil damages.  These are referred to as Civil Demand Letters.  The letter is usually from a lawyer or law firm that often is not even from the state of Michigan (for example, for Walmart cases in Michigan involving alleged shoplifting the law offices of Michael Iran Asen, P.C. in Greenvale, New York handles these civil matters).   People who receive these letters often have many questions.

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Are civil demand letters in Michigan legal?  Yes.  Michigan Compiled Law 600.2953 allows the merchant to send these letters.  This law provides that a merchant who is a victim can seek the following:

  1. the full price of any unrecovered property;

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There are 3 different ways a person can be charged with felony retail fraud:

First, an allegation of theft, or attempted theft, from a store that is open to the public with the price of the merchandise  being $1000 (one thousand dollars) or more.  This is referred to as First Degree Retail Fraud.

Second, an allegation of theft, or attempted theft, from a store that is open to the public with the a price of the merchandise being $200 (two hundred dollars) or more, if the person has a prior theft conviction.  This is also referred to as First Degree Retail Fraud.

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The State of Michigan imposes very steep penalties for unlawfully taking a deer and/or poaching of a deer.  The law concerning the penalty is contained in Michigan Compiled Law (MCL) 324.40118 and MCL 324.40119, and includes the following:

  1. A misdemeanor criminal conviction;
  2. Imprisonment for not less than 5 days or more than 90 days (see MCL 324.40118(3)).  For persons with 2 convictions for this offense within 5 years, the imprisonment becomes a mandatory minimum of 10 days in jail and a maximum of 180 days (see MCL 324.40118(17));

A gun conviction can carry extremely severe immigration consequences for persons that are not United States citizens.  INA section 237(a)(2)(C) makes convictions under federal, state, and local laws for firearms offenses deportable.  The list of offenses that fall under this provision is very broad.  Even very minor firearm convictions, such as negligent discharge of a gun, brandishing a pistol, unlawful transport of a firearm, etc., can all potentially lead to deportation.  Many firearms offenses (not all) are considered to be aggravated felonies that can lead to deportability, inadmissibility, and denial of adjustment of status.  One such offense that is noteworthy is the possession of a firearm by an illegal alien or an alien in non-immigration status (see 18 USC section 922(g)(5).  Also, if a sentence of 1 year or more is imposed on a crime of violence conviction, it is also considered to be an aggravated felony (see INA section 101(a)(43)(F).

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Is it ever legal  for aliens to possess firearms?  In some limited cases, yes.  An alien who has been lawfully admitted to the United States under a non-immigration visa who is admitted to the United States for for lawful hunting or sporting purposes, or is in possession of a hunting license or permit lawfully issued in the United States may possess lawful firearms under 18 USC section 922(y)(2)(A).  Lawful Permanent Residents (green card holders) can also possess firearms as long as they follow the applicable state, federal, and local laws to do so.  Even an alien or green card holder that lawfully possesses or uses a firearm may run into trouble with their immigration status for firearms related violations.  It is advisable that an alien or green card holder who wants to possess or use firearms consult with a lawyer, and receive proper training, so he or she specifically understand what the law requires.  Again, even a relatively minor gun violation can result in catastrophic immigration consequences.

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Deportability for a firearms offense will trigger mandatory detention.  This means that a non citizen who is in immigration proceedings for a firearm related conviction will be held in immigration custody while removal proceedings are pending (see INA section 236(c)(1)(B).  An immigration judge will be without jurisdiction to set a bond when mandatory detention applies.