(Aug 13, 2011 ) 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.
As a young lawyer I received a Court assignment from Judge Alice Gilbert, which was reassigned to a conservative, bright, new Governor Engler appointed Judge named Michael Warren. My client was a gifted young sprinter who had a full ride track scholarship from a College located in the state of Michigan. In August, two weeks prior to leaving for college, a plan was hatched to rob the manager of Burger King while she made the nightly ill advised deposit of store receipts in her usual manner. The participants of the robbery included my client and his homosexual lover (the codefendant), both of whom previously worked for the Burger king during the summer, and knew the daily routine of the manager.
At the bank in question my client, the sprinter, waited in the bushes at approximately 4:00 a.m. near the night deposit box, wearing a ski mask to cover his identity and brandishing a large ornate fantasy inspired knife – like something from Dungeons and Dragons. As the manager walked to the deposit box she was punched in the face, and my client took the bag of money and started running as if he grabbed the baton at one of his track meets.
In his haste and inexperience with handling large clumsy weapons and committing a life maximum crime, my client accidentally severed the brachial artery (the main artery) in his arm with the crazy knife he carried, losing a massive amount of blood at the scene of the crime that trailed in the direction of a nearby gas station. His codefendant took him to the nearest hospital from the scene of the armed robbery, where emergency surgery prevented a fatality from occurring. The local police force brought out tracking dogs and investigators to attempt follow the blood trail and develop leads without any success. Curiously, the police did not call the local hospitals to inquire of any suspicious injuries, and the crime remained unsolved for many months. The victim was unable to make a positive identification due to the ski mask, and she did not see any other participants.
Before Christmas of the same year, close to the end of the college semester, a Michigan State trooper stopped a vehicle for speeding in a location half way between Detroit and the same college campus attended by my client. The driver of the vehicle (the condefendant) had some outstanding warrants in his name, and he was taken into custody without incident with the vehicle being impounded. During an inventory search of the car at the impound lot, the Michigan State trooper located under the passenger seat a fantasy blade knife with what appeared to be blood still on the blade. Upon further testing the Michigan State trooper determined that the blood came from a person and not an animal.
The codefendant was questioned after being read his Miranda RIghts and agreed to speak with the Michigan State trooper who originally pulled him over. The story provide to the Michigan State trooper did not fool the officer: that a friend of the codefendant was playing with a knife at his house in the east side of Detroit, accidentally severed his brachial artery, and was rushed to the hospital in Oakland County (near the scene of the still unsolved armed robbery) where emergency surgery was performed to save his friends life. The Michigan State trooper knew that that the story was a lie because he grew up in Detroit and knew that the driver would have passed two other hospitals in Wayne County from his house on the way to the hospital in Oakland County, considering the route the codefendant claimed to drive.
The codefendant, after being confronted with lying, settled upon a new story: he stopped to get gas at a station near the bank in question. While getting gas, his friend wandered off. Ten minutes later the codefendant received a frantic cellphone call informing him that his friend was injured and that he should come get him. After picking up the Defendant and taking to the hospital he learned of the robbery that took place, but had nothing to do with it.
The Michigan State trooper forwarded his police report to the jurisdiction of the armed robbery, which caused the investigation to reopen. A detective went to the college campus to interview the Defendant about the armed robbery described earlier by the codefendant. After being advised of his Miranda rights, the Defendant provided a 4 page handwritten statement, made in the presence of 2 detectives, admitting to his involvement in the crime but stating that he only participated due to a series of threats that were made against him by the codefendant – that he would be shot, and his homosexual relationship would also be exposed to the world.
Based upon the Defendant’s clean prior criminal history, and the college track scholarship, the magistrate allowed a personal bond with a GPS tether for the Defendant so that he could continue at school. The codefendant had a prior criminal history and was incarcerated throughout the proceedings.
When I met with the Defendant I told him that he needed to provide me with witnesses and evidence to establish his duress defense. The Defendant insisted that I obtain a copy of a police report that was recently filed by the campus police concerning the co-defendant stalking him. At his repeated and firm assistance, and because the campus police investigation was considered “ongoing” (meaning that I could not get the report on my own), I had the assistant prosecutor obtain the police report concerning the stalking from campus police.
The stalking police report contained a statement from the Defendant indicating that he and his best friend (the codefendant) got into it around Thanksgiving, and ever since that time he has been followed, his dorm room was broken into, his bicycle stolen, and the codefendant stalked him. How could a person be considered a best friend until November, who forceably made you commit an armed robbery in August, I asked him?
The Court was willing to make a very lenient Cobbs agreement for a sentence of 3 years (the bottom of the guidelines) to a maximum of 20 years with the Michigan Department of Corrections, which the Defendant refused. Based upon the charge, the Defendant was not eligible for HYTA (Holmes Youthful Trainee Act status) and the Oakland County Prosecutor’s office was not willing to offer a plea bargain to try and resolve the charge.
The Defendant provided a list of friends, and his track team high school coach, who could testify how the codefendant was threatening and controlling toward the Defendant, all of whom were subpoenaed to testify.
Separate juries were chosen for each Defendant due to statements that each Defendant made which were not admissible against the other Defendant. My jury selection strategy was to find jurors that would have an emotional problem with convicting a young, good looking person, with an otherwise bright future, who would give consideration to the duress defense – people that had problems making decisions in their lives.
In my opening statement I really emphasized how the codefendant was a violent, manipulative thug, who had a history of victimizing the Defendant prior to and during the armed robbery. The codefendant’s mother obviously did not like what I had to say, and approached the Prosecutor on the 2nd day of trial during a scheduled afternoon break.
“Don’t you have the evidence that proves my son innocent”, she asked him. The assistant prosecutor looked confused at her assertion and had no idea what she referenced.
The mother grabbed a file from inside the briefcase of her son’s attorney, containing a handwritten letter. The letter was, according to the mother, from my client to the codefendant indicating that he was “sorry for getting him into trouble but that he had to raise this defense at trial, and hoped there were no hard feelings”.
After reviewing the letter the assistant prosecutor considered offering a plea bargain to the codefendant to accessory after the fact if he cooperated against my client. Momentum had clearly swung to the codefendant.
The assistant prosecutor brought a motion to add the codefedant’s mother to the witness list, and to allow her to testify to this letter if she could establish a foundation for it. I objected because it was the middle of trial, the issue was not mentioned in opening statements, prior witnesses were not questioned about the issue, and I was currently not prepared to address the accusation due to the surprise. The Judge’s response was that the letter and testimony was as much as a surprise to the prosecutor as it was to me, so he was going to allow it. Without having any other options, I asked the Court for county funds to hire a handwriting expert, and to allow that handwriting expert to testify at trial. My motion was granted.
The prosecution called that day, as their last witness, the codefendant’s mother. She testified under oath to the following: that my client was “like a son to her” and she “would never do anything to hurt him”, that she was “familiar with his handwriting because he lived under her roof for the past year and a half in her son’s bedroom due to the homosexual relationship he had with her son;” and she “found the letter when she got her son’s car out of impound after his arrest for this charge”e. I thought to myself that this was all BS, because the police who found the bloody knife would have searched the rest of the vehicle for other evidence. After she testified the prosecution rested.
I was given a day to find a handwriting expert to testify in connection with my defense, because the Court was unavailable for trial the next day because of its Motion Call (the one day of the week assigned for the Judges to hear motions on various civil and criminal cases). Given the short time frame, the only expert available to hire was Ruth Holmes, the prosecutor’s star witness in Oakland County whenever handwriting presented an issue at trial. At least they couldn’t impeach her, I thought to myself, hoping that her relationship with the Oakland County Prosecutor’s Office would not affect the work she performed.
I faxed a copy of the letter in question to Ruth Holmes, along with the handwritten confession of my client (which was written in the presence of 2 detectives and could not be refuted as a known sample). Upon thorough review, she contacted me and stated that my client was definitely NOT the author of the letter in question and that she needed the original documents to make laser copies from which she could testify at trial. Since the assistant prosecutor maintained his exhibits during the trial instead of the Court, I placed Ruth Holmes in contact with the assistant prosecutor assigned to the trial. The assistant prosecutor gave her 2 more documents to review: the codefendant’s written statement, and a letter that began with the words “Here are the documents on my son’s behalf for trial”. Ruth Holmes concluded that she had an identification (the highest level of confirmation for handwriting cases) that the codefendant’s mother was in fact the author of the letter in question.
The assistant prosecutor called me later on Wednesday to discuss the case. “Dan, I have an idea. If you let me reopen my proofs. I recall the mother, and lay a better foundation for her answers, and then I will call Ruth Holmes, and then we will have the mother”, he said which insulted my intelligence. I swore at him, and said “You are not going to rehabilitate your case through my witness”, before angrily hanging up the phone. The next morning the prosecution asked Judge Warren to allow him to reopen and call Ruth Holmes as a witness. After an animated, angry response from myself, Judge Warren denied the prosecutor’s motion.
After Ruth Holmes testified, I asked for the jury to be removed from the Courtroom. Outside the presence of the jury, I asked the prosecution to pursue charges against the codefendant’s mother for perjury and obstruction of justice. I also asked Judge Warren to find her in contempt of court and throw her in jail. Curiously, the codefendant’s mother was not in the Courthouse even though she never previously missed a court date concerning the case, which makes me conclude that someone informed her of what happened.
The Oakland County Prosecutor’s office declined my legitimate and proper request, even though this was one of the most eggregious lies by a witness testifying under oath that I ever experienced in my legal career. In fact, to the best of my knowledge, the Oakland County Prosecutor’s Office never prosecutes individuals for perjury, which tells me that they really are not interested in justice and fairness. They place witness cooperation and political concerns above the integrity of the judicial system. My client was on trial for his life – Armed Robbery is a life max felony in Michigan that carries mandatory incarceration in prison for a conviction – and the prosecution chose to do nothing about the lies and manufactured evidence. Judge Warren, to his credit, granted my request, and ultimately incarcerated the codefendant’s mom for 1 week after she entered a no contest plea to criminal contempt of Court.
The balance of my witnesses testified reasonably well concerning this pattern of abuse by the codefendant. Against my advice, the Defendant insisted on telling his side of the story, perhaps more motivated by the spite of a failed romance and the sting of the codefendant’s deception over common sense. His written confession was already entered into evidence by the prosecution earlier during the trial to establish the jury instruction for duress. The only thing that rehabilitated my client’s testimony was the codefendant’s testimony, which somehow came across as even less credible and more spiteful than the Defendant’s testimony.
The jury deliberated for half a day before rendering a verdict of NOT GUILTY for my client – a stunning result for someone who confessed to the crime. After the verdict was rendered, I sat with my client in the front hallway, awaiting a copy of the order of acquittal so that the tether could be removed from his ankle at the private company in charge of tethering him.
After waiting for about 10 minutes from the time of acquittal, 2 jurors ran down the hallway, crying, and started hugging my client, telling him how they fought for him in the jury room. The 2 jurors asked to bring my client with them to the jury room, and insisted that the Judge gave permission for this to occur. I was skeptical, so I went along with him to see for myself.
In the jury room the jurors hugged my client in a manner that looked like a football huddle, and repeatedly told him to stay away from the codefendant. The first thing that came from my client’s mouth was “they had me on this tether for the past 6 months”. Unbelievable. My client testified on the witness stand that he put on a mask, committed the crime with the knife in question, and punched the victim in the mouth as he was grabbing the money with his free hand, causing her mouth to bleed, because of duress. He was able to attend classes and keep his scholarship, but could not even say thank you to the jury and myself.
The codefendant’s jury found him guilty as charged. Just prior to sentencing the codefendant pleaded with Judge Warren, “The person who confessed is free and I am locked up even though I am innocent. I am going to be ordered to pay restitution, but I did not receive any money from this. The [codefendant] got all the money and doesn’t have to pay nothing” Unswayed and in an affirmation of the decision of the codefendant’s jury, Judge Warren sentenced him to 10 to 20 years in the Michigan Department of Corrections.