Spotlight On: Mitch Foster

Mitchell Foster

Please tell us some-thing about your background, where you practice, and how long you have been a criminal defense lawyer.

I graduated from University of Detroit Mercy School of Law in 1992 and have been practicing law for 20 years.  My office is in Oakland County.  My current practice is 90% criminal defense, including trial and appellate practice.  I am on the roster of MAACS attorneys, handling felony appeals all around the state.  I also represent individuals accused of misdemeanors, including DUI’s, drug possession, and domestic violence.  I also represent individuals accused of serious felonies.  Several years ago, I joined CDAM and the NACDL.  I am also a member of the NCDD (National College for DUI Defense).  All are great organizations which have greatly helped my practice.

Please tell about one of your interesting or unusual cases.

I recently had a case where a woman was accused of breaking and entering with intent and larceny in a building.  She had a really good friend and co-worker who became ill, went to the hospital, and eventually died.  The friend of my client had given her permission before she died to have various things from her home.  A few days after the death, my client was in her friend’s home removing some items, mostly small sentimental things like candles and perishables from the refrigerator.  While my client was taking these items, the decedent’s daughter arrived and confronted my client.  The daughter called the police and charges were filed.

The prosecutor did not want to try the case.  An offer of trespassing with community service was given and rejected.  We went to trial.

The case was all about my client’s character and the friendship she had with the decedent.  My client took the stand to establish that she had permission to take these items and to discuss the nature of her relationship with the decedent and the depth or their friendship.  We also had three character witnesses to testify about my client’s character for honesty, loyalty to her friends, and truthfulness.  Several pictures of my client with the decedent were also introduced.

The prosecution’s witness was the daughter of the decedent, who could not answer whether she knew whether my client had permission to take these items.

It was a case that should not have been charged, but my client had to decide between taking a minor misdemeanor with community service for a crime she did not commit, or going to trial and risking a long period of incarceration.

During the closing argument, I made a point to ask the jury, “What would [the decedent] want?”  Everyone in the courtroom knew that at most, this should have been a civil or a probate matter, but the jury was forced to deliberate.  They came back not guilty and my client had tears of joy.  A great burden had been lifted and she was finally able to mourn her friend’s passing in peace.

What trends do you see in Michigan criminal law?

I recently attended a DRE (Drug Recognition Expert) seminar, given in Detroit, by Lance Platt of Platt and Associates, from Texas.  We learned that the National Highway Traffic Safety Administration (NHTSA) is putting pressure on the states to have police officers trained to be DRE’s.  Many other states already have DRE’s arresting people for driving impaired by drugs.  They are coming to Michigan.  This should result in a drastic increase in the number people charged with operating while intoxicated by drugs, and a battle as to whether these DRE’s can be qualified as experts in drug recognition.

What advice do you have for other criminal defense attorneys?

Don’t be afraid to put your client on the stand.  During my most recent trial (not the above described case) I had my client testify.  He was acquitted.  When talking to the jury, one of the jurors (a civil attorney) told me I should not have put my client on the stand.  He said I did not need to and the prosecutor had not produced enough evidence to convict.  I felt that I needed to put him on the stand to establish several critical facts.  This comment got me thinking, so I checked my records and my memory over my past trials.  Of my last 10 trials where my client testified, he/she was acquitted 6 times.

It can be risky, especially in cases with confessions, past criminal history, and cases with bad facts.  But sometimes, your client can be your best witness.  Many prosecutors are not as skilled at cross examination as they are with direct examination, and often do not do any damage to your client.

Your client may be your only witness to establish certain facts for the defense.  It’s a judgment call, but often it can pay large dividends.

Do you have any specific advice for new attorneys?

My advice to new attorneys is to work with other established criminal practitioners.  Joining criminal defense list serves, including SADO is a must.  Also, go to the CDAM trial college.  The trial college transformed the way I looked at a case, and helped me develop skills which have enabled me to win cases.  I learned from the best attorneys in Michigan and developed new friendships along the way.

Mr. Foster's website:

by Neil Leithauser
Associate Editor