Please tell us about your background, where you practice, and something about your areas of practice.

I was admitted to the State Bar in 1979.   I was as an Assistant Prosecutor in Sanilac County for two years.  In 1981, I moved to Emmet County where I was appointed the Chief Assistant Prosecutor.  I served in that position until August 1996 when I was appointed prosecutor.  I then served two full terms as Prosecuting Attorney and then went into private practice in Petoskey in January 2005.

My practice continues to evolve as time goes forward.  Having started private practice handling many different types of matters, most of my work now is devoted to criminal defense along with some domestic relations and juvenile/probate cases.

You have obtained several not guilty jury verdicts in recent months.  Please tell us about the main issues in the cases.

Three cases I will comment on with these “not guilty” verdicts are broken down below:

1. Safe Breaking and Home Invasion Second Degree
2. Criminal Sexual Conduct Second Degree
3. Larceny in a Building

What were the prosecution and defense theories?

The prosecutor charged based on money taken from a locked box in the garage of a home.  The homeowner had a pizza business where the staff at the end of the night would drop off the money and receipts from the day in a bank bag and place the bank bag in a lockbox at the owner’s home.  The prosecution based its case on my client having previously worked at the business and knowing the procedures for dropping the money off and the bank bag being found in my client’s bedroom by his ex-girlfriend.  She told the police that he admitted to her how he went into the lockbox with a knife to pull the money out.

The defense argued that there were several inconsistencies in her story along with her acknowledgment at trial that she was dating another guy who was just as likely to commit the crime.  Client testified that he found the bank bag about a week after it was missing near the local football field.  No prints.  He told the jury that he “freaked out” when he found the bag and did not report finding it.  He said there was no money in the bag when he found it.  Witnesses for the prosecution said that they did not hear anyone drop off the bank bag at the house that night.  30 minute verdict.

Prosecutor charged CSC 2nd Degree.  Client alleged to have engaged in sexual contact with adopted daughter.  Ongoing divorce at the time when daughter was 14.  Case not prosecuted until she was 17.  The daughter said it was a one-time occurrence where dad walked into the bedroom, touched her butt, and left the room.

The defense argument was that this was an unhappy child who had gone through her parent’s divorce.  She ended up at a girl’s detention facility when she made these allegations (we believe to get out).  There was testimony that other girls had talked about being sexually abused by a father before she made her report.  There were some inconsistencies in her testimony and the mother’s hatred for my client was apparent.  There were earlier denials by the girl of any sexual abuse.  2.5 hour verdict.

Attorneys need to be familiar with the Child Forensic Interview Protocol.  I did not take my copy to trial with me.  You need to take it to preliminary exams, motion hearings to exclude testimony, and trial.  I had a CPS worker and a state trooper testify that they followed the protocol.  However, the CPS worker did not know about the provisions for the police not to wear firearms in an interview with a child.  The trooper thought it was discretionary.  I was able to keep the statements of the child made to them out of the trial, but it would have been better to have made a motion to exclude prior to trial.

Client charged with Larceny in a Building based on a theft of his grandmother’s wedding rings.  Client and girlfriend had lived out of state, returning to Michigan in early 2012.  They moved in with his grandmother.  Grandma notices that the wedding rings for her and her now deceased husband are missing.  She does not report it.  About a month later (while my client and his girlfriend are in jail on unrelated matters), grandma is looking through some items in a suitcase belonging to client and girlfriend.  You know it – she finds her missing rings in a plastic bag containing other female-type jewelry.  Girlfriend gets charged first with LIB.  She pleads to R&C 200-1000.  No deal regarding testimony.  Client is then charged with LIB.

Defense is based on lies on girlfriend.  With what you read below, you will see that there are at least five or six different stories by her.  Grandma says that she knew these rings were special to my client as he was present at the hospital when grandma and her soon to be husband picked out these rings with the jeweler and my client present.  Grandma was married shortly after and her husband died (without leaving the hospital) within three months.  She did not believe that my client would do such a thing.

Girlfriend was interviewed by police at the jail.  Initially, she denied any knowledge of the theft of the rings.  After a few minutes, she confessed that she was the one who stole the rings and that my client did not know anything about it.  The police asked her to write out a statement.  She did a few hours later, but wrote that her four year old son took the rings when found by her and my client.  She wrote that she did not know what to do with the rings.  She also wrote that there was no intention to pawn or sell the rings.

She then testified at the preliminary examination of my client.  She denied that she took the rings.  She blamed it on my client although she did not come right out and say that he stole them.  She said that he told her that the two of them could use the money and they should pawn the rings.  She then testified that she did not tell the police any of the stories that she previously gave.

At trial, the girlfriend told the jury, at the prosecutor’s request, that she would not lie to them because she was under oath.  She then proceeded on cross examination to admit everything that she told the police at first (didn’t do it, did it, my son did it).  She also admitted under cross examination that she lied at the preliminary examination while under oath about her prior denials to the police, but this was the truth.

Client took the stand and denied any involvement as he stated throughout the case.  He also testified about the emotional time when at the hospital with grandma and her husband to be picked out the rings – a great emotional tug for the jury!  He said that he would never take those rings and try to pawn them.  Jury took 25 minutes for a Not Guilty verdict.

What did you learn from the cases?

You learn by going to trial.  Over 30+ years of practice in the courtroom, whether as a prosecutor or defense counsel, I have learned that you need to be prepared for trial.  You need to be up to date on the evidence rules.  When you are in the courtroom, either making objections or responding to objections, you can affect the outcome of the case as to whether a question is answered or not.  These particular cases were all court appointed cases, so I did not have the luxury of hiring a private investigator.  I used my experience as a prosecutor and defense attorney to explore the prosecutor’s case, point out strengths and weaknesses to my client, and let them make the decision of going to trial.

What advice do you have for other defense attorneys?

Explore your options in every case.  There will be a lot of cases where the options for trial are not there.  So you look to sentencing options.  Many of my clients have later expressed to me that they knew they were guilty and were happy that I was able to work out a resolution to their case in the sentencing that helped them.  Seek out other attorneys who have handled similar cases.  Be prepared.  Meet with your client as many times as you need to nail down what their position is going to be whether dismissal, plea, or trial.

Any particular advice for newcomers?

Be strong in the courtroom.  First, you need to know the rules of evidence.   Second, you have to have confidence in your abilities to present the case to the judge or jury.  To obtain that confidence, you need to sit in the courtroom and listen to seasoned attorneys on both sides as they present their case.  You will find great tidbits to use in your case presentation, whether it be voir dire, opening, cross exam, direct exam, or closing.  One of the greatest experiences for me in preparation of a case was to sit in the gallery at the Michigan Supreme Court the day before I had to argue a case.  I listened to the justices and the attorneys.  I knew right then that I could present a powerful argument, and I did.

Mr. Engel's website:  http://www.petoskeyattorney.com/

by Neil Leithauser
Associate Editor
 

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