I intentionally omitted the names of the different persons involved in the following true story, and withheld certain details, in order to maintain the privacy of my client.
The newspapers and television carried the story prominently – A janitor accused of raping a handicapped victim in her assisted living apartment. The magistrate set bond at one million dollars – an impossible amount for a janitor or just about anybody to post. It did not matter that he did not have a prior criminal history, that he supported his wife and children, and that he professed his innocense.
The Oakland County assistant prosecutor gave a copy of the police reports and a criminal complaint that alleged one count of Criminal Sexual Conduct in the 1st Degree. The offense carried a maximum of life in prison, and sentence guidelines which started at around 9 years. The assistant prosecutor encouraged me and my client to waive the preliminary examination, stating that if the matter went to a probable cause hearing a request would be made to add additional counts of Home Invasion and Criminal Sexual Conduct in the 1st Degree which would have increase the starting point for the sentence guidelines to about 12 years. The victim alleged her apartment was broken into by the Defendant, and multiple sexual acts occurred.
At jail I told my client of the conversation with the assistant prosecutor, and told him that I believed him, but that it would be easier to defend less charges. I carry a doctor like philosophy to my work as a lawyer – DO NO HARM. My client said he trusted my judgment and agreed to waive the preliminary examination so that we would only have to fight 1 charge instead of potentially 3 charges. It really was a hard decision because the Defendant provided for his family, and in jail he could do nothing but hope that the bills were somehow being paid without him.
Once the matter was bound over, and upon further investigation of the circumstances, I was contacted by the alleged victim’s family. From the family I learned that the alleged victim had a history of making false sexual accusations. The family members told me that “we could not live with ourselves if we didn’t speak up and we watched someone go to prison for this”. I immediatley prepared a witness list and provided it to the assistant prosecutor, begging her to speak with the listed witnesses immediately.
On the day of trial I learned that a further police investigation revealed material lies without explanation to detectives that reinterviewed the alleged victim about the claim of rape. With the victim’s family members subpoenaed and with myself prepared for a long battle, the assistant prosecutor asked that we have a discussion with the Judge in his chambers before he took the bench.
The prosecutor asked that I agree to have the case remanded to the District Court for a preliminary examination so that testimony could be developed. I reminded the assistant prosecutor of the statement previously made about adding charges, and that I was ready to fight this case that day. The assistant prosecutor made a promise in front of the Judge that after the preliminary examination concluded, the worst that the Defendant would face in terms of criminal charges would be only one count of Criminal Sexual Conduct in the 3rd Degree if I agreed to the remand. The reduction in the charges meant a reduction in sentence guidelines of over 5 years. The Judge intervined and stated that he would give the Defendant a personal bond if he would agree to the remand to the District Court and agree to adjourn the trial from that day. The Defendant at this point had sat in jail for about 6 months, maintaining his innocense the entire time and worried about his family. Even though we were ready for trial, I advised my client that he could not pass up this offer.
Back at the District Court the fight continued for about another 6 months of legal battles. The assistant prosecutor finally had another offer to discuss with me. The offer: if the Defendant plead no contest to an added misdemeanor count of Aggravated Assault (which carried a maximum punishment of 1 year in jail), the charge of Criminal Sexual Conduct in the 1st Degree would be dismissed. Furthermore, the Prosecution agreed to an order that the Defendant did not have to register as a sex offender (at the time of this case, the probation department had the discretion to register a Defendant as a sex offender depending upon their interpretation of the facts involved. However, the probation department honored Court orders indicating that sex offender registration should not occur over its own discretion).
Ethically, I have to advise any client of any offered resolution. To me the resolution stank, because this man did not deserve to have any type of a record, but the decision was not mine to make.
My client responded that he grew tired of the fight and the toll that it took on his family. That he wanted to put this behind him. He worried that because he is black, the complaining witness is white, and the Oakland County jury would likely be white that there was a possibility that he could lose even though the accusation was not true. I told him that I could still win the case if he would let me, and he responded that the decision was his to make and that he wanted to offer the no contest plea as outlined to put an end to this.
The Court accepted the no contest plea from the Defendant, and scheduled sentencing a month later to allow for an investigation by the probation department. The District Court Judge assigned to this case always met with Defense Counsel prior to sentencing to discuss what he was inclined to do.
The Judge told me that he would give a sentence of 2 years of probation, counseling, anger management – every possible probationary sentencing condition except for additional jail time. I reminded the Judge about the facts of the case, and told him that a miscarriage of justice had already occurred based upon a conviction for Aggravated Assault already being entered. “He made his bed, and now he’s gonna lie in it”, was the response the Judge gave me as I left his chambers.
I immediately spoke to my client about the discussion with the Judge and he was very upset. He thought that he would be able to put the matter behind him after sentencing and did not think that he could mentally take much more of this. I told him that I would try to come up with something to help him.
At the time the Judge took the bench every pew in the Courtroom was filled with members of the public, Defendants, Prosecutors, and other lawyers. The case was called by the Court, and I was asked if I had anything to say to the Court prior to sentencing.
“I want to apologize to my client and I want everyone here to know that I am responsible for what this Court is about to impose. This happened on my watch and I am supposed to defend him. I am responsible for this”. The Judge was obviously shocked by the tact I took. I really did not plan what I was going to say – the words kind of just came out.
My client interrupted me and tried to console me. “You have no need to apologize to me. You are a great lawyer Mr. Hilf. You saved my life. There is nothing more that you could have done”. Being consoled by my client made me cry in front of everyone in that Courtroom, which has never happened in my approximately 20 years as a member of the Michigan bar association. However, I don’t think I was the only one who cried.
The Judge asked me to approach the bench. He stated that I had a Criminal Sexual Conduct 1st Degree reduced to an Aggravated Assault, and that I had no reason to apologize to anyone. The result was unbelievable. He knew that I thought that I could beat the case, but the resolution that I reached was a victory in itself. I told the Judge that although the case might not matter to him, that it mattered to me, and what happened to the Defendant was not right and that it was only fair that I took my share of the blame. The Judge told me that he was glad that there are people like myself defending cases, and told me now had what he needed to give the appropriate sentence.
The Judge went back on the record. The sentence of the court – 6 months in jail, with credit for 6 months time already served. No probation, no fines, nothing further. The newspaper and media did not cover the result of the case, because the story was long forgotten by then. The media usually is more interested in the accusation, and less interested in a reduction or acquittal.
Even though this occurred several years ago, I still feel that I failed my client because of the doctor like philosophy that I subscribe to as a lawyer – DO NO HARM. I harmed this man by working within this so called system of justice where the prosecutor’s office values statistics over truth and decentcy. This was a person who sat in jail for 6 months, and now carried a misdemeanor conviction for something that I knew he did not do on an otherwise clean record. The only way that I moved forward from this case is by making a pledge to myself that I will continue to do my best, and not to settle for what is easy over what is right.
Hiring the right criminal defense lawyer may be one of the most important decisions you make for yourself and your family. There are many lawyers who claim to do more than what they are able – just as there are many surgeons in the world that are no better than butchers. Do not settle for a legal hack job. Practicing law is a skill that develops over time with experience, commitment, dedication, and God given talent. There are no amateur attorneys at Hilf & Hilf, PLC – only professionals that are guided by the humanity in the individuals we serve, and the drive not to settle for what is easy over what is right.
Daniel Hilf, Esq. of the law firm of Hilf & Hilf, PLC, is a criminal defense lawyer who is driven by a commitment to winning. His legal career is distinguished by an ability to think on his feet, to analyze issues in both conventional and unconventional ways, and to react effectively against the challenges presented by Prosecutors and Judges.