Do Haeng Michael Kitchen

The first time I met Donna Goodwin(1) she was in the Macomb County Jail.  She was charged with obtaining a controlled substance by fraud.  The police alleged that Ms. Goodwin brought a prescription of Vicodin to a local drug store.  The pharmacy filled it, then the next day contacted the doctor on the script to determine its legitimacy.  The office manager identified Goodwin as a patient, but that the prescription was not legitimate.  The frail fifty-five year old, African American woman’s first statement to me was that she was glad to see me and asked me why she was there.

The other day I finished reading a collection of essays edited by Anne Smith and Monroe H. Freedman titled How Can You Represent Those People?  The theme of each essay is a response to the cocktail  party question asked of every criminal defense lawyer.  These lawyers have defended the tough cases – murders, rapes, etc.

The first time I met Eddie Lee was at the district court house for our first pre-trial.  Eddie was in his late forties.  The short African American man who lived in a low income housing project, was being charged with attempted criminal sexual conduct fourth degree.  It was alleged by a fifty-plus year old white neighbor that he tried to touch her lady parts.  He said little to me because of his diminished capacity, but the group of six neighbors who came to court in support of him told me plenty.

As I’ve been reading the book, I pondered how I would answer that question for myself.  I’m no Clarence Darrow or any of the seasoned attorneys writing these essays.  My caseload comes predominantly from court appointments out of Macomb County Circuit and a few district courts involving defendants charged with crimes punishable by five years or less.

The first time I met Scott Young, it was at the district court for a preliminary examination.  He was charged with assault with a dangerous weapon and conspiracy to retail fraud third – a felony and a misdemeanor.  It was alleged that he was the “getaway” driver for his accomplice who was attempting to shoplift from a grocery store, and that in the getaway attempt he came very near to driving his car into the plain clothes security officers following his accomplice.  An African American man in his forties, Young couldn’t believe the charges as all he was doing was dropping off and picking up his mother from grocery shopping.

Is it for the money?  Hardly.  Michigan ranks 44th in public defense spending.  In 2012, there were only 4,578 criminal cases filed in Macomb County Circuit Court, a slight increase from the previous year, but the trend has been dropping since 2008 when 6,210 criminal cases were filed (Page 28).  A colleague recently put it in perspective.  He said that Macomb County’s fee schedule was set when gasoline was nineteen cents per gallon.  Fortunately for me, my law practice is the gravy for our home budget.  Were I to rely on my court-appointed case income alone to survive, I would qualify for food stamps.

The first time I met Danny Hugel was at court on the preliminary examination date.  He was charged with two counts of failing to comply with the sex offender registry by not providing his phone number and email address.  A thirty-something white male, Hugel said there was no way they could charge him with that.  After he had been arrested Hugel went back to the police station and talked to the dispatcher and learned that it was probably a clerical error.  I looked at his history and how he got on the registry fifteen years earlier and thought there was no way he should have been on the sex offender registry to begin with.

If not for the money, which to some would seem the only reason to go into the practice of criminal defense, then what?  These are ‘bad’ people, right?  Why would I, a ‘good’ person, want to defend them?

To be honest, criminal law was not the area of law I thought I’d practice.  Sure, I read comic books and was immersed in the good guy/bad guy myths which might naturally lead me to seeking employment in the prosecutor’s office.  But I was inspired to go to law school at the advanced age of thirty-seven – fifteen years after I graduated college – by two influences; Ralph Nader and because a bulk of the work in the legal profession involved writing.   I was working in a hotel at the time, on the midnight shift as a night auditor, when new management came in and began a practice of overbooking the hotel.  From what I learned on my own, the practice violated the Michigan Consumer Protection Law.  I was ignored, and soon after, I left the life of midnight shift and applied to law school.   I discovered Ralph Nader’s book, No Contest: Corporate Lawyers and the Perversion of Justice in America.  That was the spark.  I was writing a column for a hockey publication, but having no success with publishing short stories and novels at the time, and learning that being a lawyer required a large amount of time researching and writing motions and briefs, I thought this could be a better way to direct my desire to write.  That was the accelerant.  The fire began.

Also, before entering law school, I realized that Gandhi had been a lawyer prior to his amazing achievements practicing nonviolence in India.  The legal profession as a healing profession felt like a natural place for me.  I then landed a clerk position with the City of Detroit Law Department in the Labor & Employment Section.

Law as a healing profession.  Labor and Employment law.  Mediation.  Labor Arbitration.  Collaborative Divorce.  Exiting law school, I thought this was the path I was on.

Then it took a turn.

I gave Donna Goodwin a copy of the police report.  It included copies of the prescriptions that she allegedly had filled.  Goodwin explained to me that she lived on a fixed income in Detroit, her doctor’s office within walking distance of her home, and the pharmacy she filled her prescriptions was on the corner.  She had never heard of the doctor whose name was on the prescription.  Until this charge, she had never been in Clinton Township.  She provided me with the name of her doctor and her office location.  Goodwin also told me that her state id had been stolen from her the summer before.

In February, 2008, I sat for the Michigan Bar Exam.  I had left the City of Detroit to try my hand at running a business, which lasted eighteen months during the recession.  I then clerked for a legendary labor arbitrator whose office was in Detroit, and with his encouragement I decided to go after the license to practice law.  I swore into the Bar in May, 2008.

Swearing in before Judge Richard Caretti in Macomb County Circuit Court.

I took Eddie Lee and his neighbors aside to go over the police report.  He was alleged to have been drunk, left the lawn chair he had been sitting on in Al’s (his neighbor) front yard, then crossed the street to where the alleged victim was sitting on the front porch of a male’s home.  She claimed that Lee started hugging on her and had touched her private parts through her clothing.

Al told me that her story was complete fabrication.  The woman was the neighborhood’s busybody, sticking her nose into every neighbor’s business.  Al was barbequing with Lee sitting in a lawn chair.  Yes, he was drunk.  So drunk that Al said there was no way Lee could have walked across the street without falling face first on the ground.  Ms. Busybody had walked in front of Al’s home, looked at the two men and said, “I smell marijuana.”  Al told her to leave because the only thing smoking was the burgers on the grill.  She walked away in a huff and joined Gerry, a known alcoholic and loud mouth, on his front porch.  About twenty minutes later the police arrived and talked to Ms. Busybody.  They then walked over and arrested Lee.  Two of the neighbors confirmed Al’s version of the story.

The arbitrator was near the end of his career (though I wouldn’t be surprised if  he was still arbitrating labor cases around the country today, six years later).  I needed to consider my options.  The City of Detroit Law Department was hiring in the Labor and Employment Section, where I had clerked during law school.  The interview with two people I had previously worked for was promising, but the open position was for an experienced attorney, not an entry level attorney.  What options were available to me, a forty-six year old male at the start of his law career?

Scott Young told me that he was driving his mother grocery shopping.  He took her to a store where she purchased some groceries.  However, she needed to go to a second store to get the things she needed that the first store did not have.  Young dropped his mother off at the front door, then parked the car and waited for her.  Thirty minutes later, Mom came out of a different door.  No groceries.  No cart.  He drove to meet her.  When she entered the car he asked her what she was doing.  She insisted he drive away.  They drove out of the parking lot, but was immediately pulled over by the police.  According to the police report, Mom had filled a shopping cart with groceries and had pushed them past all points of sale and into the foyer between the two sets of doors leading out.  (This was where the restrooms were located in the store).  Two plain clothed security guards stopped her and began to question her.  She claimed she needed to use the restroom, but they assumed she was trying to walk out with the cart.  She abandoned the cart and left the store.  The two security guards followed and alleged that Young had sped the car in their direction, almost striking them as he stopped to pick Mom up.

A guy I went to law school with, who sponsored me when I swore into the Bar, Kevin Johnson, suggested I look into criminal defense because he said that it seemed right for me.  I shadowed him on his court days, then took the full day session, “A is for Attorney” held on the first day of the Fall 2008 Criminal Defense Attorneys of Michigan conference.  That launched my criminal defense practice.

Kevin Johnson sponsoring me on my swearing into the Bar.

In 2000, Danny Hugel was seventeen years old.  He plead to a charge of criminal sexual conduct fourth degree for touching the breasts of a thirteen year old girl without her consent.  He was sentenced under Michigan’s Holmes Youthful Training Act (HYTA) which allows a defendant under the age of twenty-one to plead guilty to a charge then be sentenced to a period of probation.  If the defendant successfully complete the term of probation, the case is then dismissed and becomes a non-public record.  However, in 2000, the Sex Offender Registry Act (SORA) required someone convicted of a criminal sexual conduct fourth degree to register as a sex offender.  The law contradicted itself.  HYTA dismissed the charge, however SORA proclaimed it to be a conviction of a sex crime.

There’s the back story.  That’s the “how.”  You really want to know “why.”  Why would I dedicate my practice to representing those people?

I could easily point to the Constitution and claim that it is necessary to defend individuals charged with a crime in order to maintain a free and just society.  The adage that it is better that nine guilty people go free than it is for a single innocent person be convicted is reason enough.  And though this is a foundational reason, for me it’s more than that.

I would start by answering the question with a question:  Who are those people?

The way I see it, people are people.  Those people imply that there are some individuals who are not like the person who asks the question and me.  How are those people different than you and I?  What is that separation that should deny them from my representation?  And what is it that makes the questioner feel superior to my clients?

We live in a disposable society.  If something breaks, it is often cheaper to throw it away and buy a new one than it is to fix it.  And unfortunately, I believe, the mentality can make it easy or acceptable to have disposable people.  We, as a nation, are becoming more isolated from each other.  Our disengagement with others reduces empathy towards those that aren’t within our small circle of family and friends.  I’ve met a lot of those people in my practice.  They have families.  They have friends.  They have children.  Only a few are alone or have only a handful of people who are in their immediate circle.  But that doesn’t mean they are any less of a person than me.

We also live in a society fueled by media and entertainment for vengeance.  If we’re struck, we must strike back.  Harder.  It is so ingrained in our society it feels natural.  We don’t question why we were struck (or do so at superficial level that is biased towards defending one striking back – take 9/11 for example).

I cannot deny this emotion.  When we returned from our honeymoon we discovered our apartment broken into and all of our new gifts gone.  I’ve felt the heat for vengeance.  But we mustn’t jump to conclusions.

The first on-campus event I attended in law school was sponsored by the National Lawyers Guild.  They brought in three speakers who had one thing in common:  they had been death row inmates, all released after several years of appeals and the culling of evidence destroying the cases against them.  There, before me, sat a man who was weeks away from state execution, discussing his case, living with the conflicting feelings of being innocent but condemned to execution.  Vengeance doesn’t always lead to justice.  If sought hastily, it can create further injustice.

Life isn’t fair, right.  I disagree with that maxim.  Life is neutral.  It is people that are either fair or not fair.

The police and prosecutor were not fair with Donna Goodwin.  They incarcerated a poor, ailing, mature African American woman for one month.  After gaining a HIPPA release from Goodwin, I spoke with her doctor.  She knew Goodwin’s health and records for years, and would have never referred her to the physician on the prescription pad, mainly because she was from a competitor health care system.  When I demanded video evidence or eye witness testimony of Ms. Goodwin at the pharmacy, two days before the hearing the prosecutor told me they were going to dismiss the case because they had no witnesses.

The nosy-body neighbor was not fair to Eddie Lee.  She and Gerry made a false claim to get Eddie Lee in trouble.  What they didn’t count on was the three witnesses that contradicted her story, and in a bench trial before the judge, Eddie Lee was found not guilty of attempted criminal sexual conduct fourth.  Ms. Nosy-body took it further and filed a disorderly conduct charge against one of the witnesses who testified in the trial, who I then defended, achieving a dismissal of that charge.

The rent-a-cops at the grocery store were not fair to Scott Young.  At their testimony during the preliminary examination, they claimed that they were several car lengths away when Young pulled up and stopped to pick up his mother.  The judge bound the matter over, but in a Motion to Quash, the circuit court judge dismissed the assault with a dangerous weapon felony.

The probation office was not fair to Danny Hugel.  I filed a motion to have Hugel removed from the Sex Offender Registry, based on a 2009 Michigan Court of Appeals decision that ruled that having to register after successfully completing HYTA before October 1, 2004 and not required to do so after October 1, 2004, was cruel and unusual punishment, contrary to the Michigan Constitution.  While awaiting that hearing, the probation officer levied another frivolous probation violation against him.  On a Tuesday, the hearing before the judge to remove him from the Sex Offender Registry was held, and the judge ruled in our favor.  Two days later, with the new alleged crime of failing to comply with the sex offender registry and the probation violation, the charges were dismissed.  (The Michigan Court of Appeals has recently narrowed the decision which allowed our success.  Had we waited a quarter of a year longer, he would still be confined to the Sex Offender Registry).

It would have been easy for these four individuals to take plea deals, or should I say, for an attorney to guide them into taking pleas.  Life’s not fair, right?

So it’s a Constitutional duty, and a duty to uphold justice and fairness.  But there’s one other element that I have found with most of these clients.  I like them.  I can relate to them.  Those in jail, I don’t mind visiting them prior to our first appearance in court, to get their side of the story so that they feel heard.  For the four clients above – and others like them I have defended – their situation could have happened just as easily to you or to me.

I tend to root for the underdog, and when someone is charged with a crime, there is no bigger underdog.  Of course, in a number of cases, the issue is not innocence or guilt, but rather damage control.  The act was committed, and a sentence has to be imposed.  In those cases, my goal is to get a fair sentence for the client, instead of having the book thrown at them.

People who are charged with a crime are not necessarily bad people.  Should a single act define who we are?  Think of some of the single acts you may have engaged in that you may not be proud of.  Would you want your life to be defined by that?

This is why I defend people charged with crimes.

(1)  All clients’ identities changed.