Spotlight On: John L. Livesay

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

 I was admitted to the Bar in 1973.  I started my career in St. Joseph County where I was an assistant prosecutor for 3 ½ years.  I was elected Prosecuting Attorney in the adjacent county, Branch County, in 1976, and was elected.  I served as the elected prosecutor in Branch County from January 1977 through December 2000.  In 2001, I started as city attorney in Port Huron where I served for 8 ½ years.  In 2009, I went into private practice in Port Huron and moved to the neighboring city of Marysville last year.  My practice is mostly criminal defense, but I have handled a few other types of matters.

Please tell about some of your interesting or unusual cases.

 Obviously, the ones people want to talk about are the cases that we win, so I will with one exception.

 The cases I will comment on are:

1. Second-Degree Criminal Sexual Conduct-2 count [Found Not Guilty]
2. First-Degree Child Abuse [Hung Jury-retried and Found Not Guilty]
3. First-Degree Murder, Attempted Murder & Conspiracy to Commit Murder [Found Guilty]

 The first felony case that I tried after starting as a defense attorney was the two-count second-degree CSC charge.  Both alleged offenses arose out of the same incident.  My client was living with the mother of the alleged victim with whom he had a four year old child.  The alleged victim was the 14 year old daughter of his girlfriend.  The case was reported immediately after it was alleged to have occurred.

 The defense argument was this was a mixed up child who was not happy with my client because he had caught her with her boyfriend over to her house when the mom was at work and reported the infor-mation to the child’s mother.  If my client was not in the home the child would be freer to con her mother and do what she wanted when mom was at work.  The child and the mother had testified at a juvenile court hearing and at a preliminary examination.  There were some inconsistencies in their prior testimony that helped to support our theories.  The child had been overtly flirtatious with my client in the past to the point my client had even complained to the mother and to his own family members.  My client testified and came across well.  We were able to effectively use what was essentially evidence of good character.  You should not underestimate the importance of evidence of good character.  The jury took about 1.5 hours to acquit my client.

 The second case noted above and the one which I am most proud of was a first-degree child abuse charge.  The child would have died had there not been emergency brain surgery.  The prosecution’s theory was the same as it usually is in these types of cases—my client was alone with the child, the child received an injury [which the medical experts routinely say could not have happened by accident] and therefore my client is guilty of child abuse.  The prosecution called six expert witnesses including the neurosurgeon who operated on the child and a board certified pediatric child abuse expert.  My client did not testify and we called five character witnesses.  We were able to get admissions from the prosecution lay witnesses that my client had never been observed being abusive or even angry at the child.

 There was testimony that about 24 hours before the child was observed nonresponsive and taken to the hospital my client had called the child’s grandmother to his trailer while the mom was at work because my client had heard a noise in the child’s room, went in to check on him and found him on the floor.  When he picked him up the child vomited as he carried him to the kitchen sink.  The grandmother came and checked on the child and just told my client to watch him.  The next morning the child’s mom took him to the pediatrician.  She said she told the doctor about the alleged fall the night before but the doctor testified that she did not mention it and it was not noted in the child’s chart.  I was able to point out that the doctor’s records showed the child was two inches taller than was reported on a later date in his chart.  I tried to use the specific descriptive words the doctors used in their reports to support reasonable doubt.  For example, the pediatric child abuse expert used the terminology that the subdural hematoma was the “likely” result of abusive head trauma.  Her report stated she had “concern that history provided does not adequately account for the severity of the patients presentation, i.e., a simple fall should not result in this degree of head injury.”  I tried to compare that kind of language to the requirement of proof beyond a reasonable doubt.

 I was able to get the doctors to acknowledge some things that would support our theory—not to prove our theory, but to raise a reasonable doubt about the prosecution’s claims.  I had to do a lot of research on closed-head injuries and was able to cross examine the experts with learned treatises and peer reviewed medical journal articles.  I was also able to use their reports and their words to try to create some doubt as to the agreement of the medical experts.  Part of our theory was that the injury could have been from the fall that occurred the previous evening with a significant lucid interval between the mechanism of injury and the unconsciousness later.  Though the doctors stuck with their opinions they did acknowledge the literature that supported the concept of lucid intervals and the concept of “second impact syndrome.”  It was never my goal to do anything other than raise a reasonable doubt of my client’s guilt.

 The first trial resulted in a hung jury which was 9 to 3 for not guilty [the judge requested the bailiff to ask the jury, after he declared the mistrial, what their vote was].  A few months later it was retried resulting in a not guilty verdict in just 45 minutes.

 One of the things from the Trial College that I thought was very important was the jury selection process.  Most importantly, it was critical to not try to get the juror to agree with you but to actually get information from the juror about themselves.  In the second trial during the voir dire it came out that one of the prospective jurors was a chemical engineer.  I asked him if in his scientific endeavors he ever had something happen that he could not explain how or why it happened.  His reply was: “all the time.”  I wanted him on my jury and got him.

 I argued to the jury that two unchangeable rules of life are that only God knows the how or why of some things and secondly, God can’t change rule no. 1.  I then implored them to do their duty as jurors and uphold the requirement of proof beyond a reasonable doubt no matter what they may think of me or my client.

 The third case was a murder trial in which my 17 year old client was charged with conspiring with two male friends to murder her adopted mother and father who had raised her from the time she was an infant.  They were her biological aunt and uncle.  The father was killed and the mother survived.  Her biological mother had been in prison and gave up her children to be adopted by her sister.  One thing that made this case particularly unique for me is that her mother had been in prison in the county in which I was prosecutor.  Her mother had been a victim of CSC by a corrections officer.  I actually personally prosecuted the case in which her mother was the victim.  Unfortunately, for my 17 year old honor student this was the strongest prosecution case that did not have full and complete confession which I have ever seen.  The murder plot was recorded via text messages back and forth.  Because of the recent Supreme Court decision [Miller v. Alabama, __ U.S. __ ; 132 S. Ct. 2455 (2012)], the case is coming back for resentencing on the first degree murder charge.

Where experts needed?

 It might have been nice to have an expert or two on my side in the child abuse case.  However, I think it might have worked a little to the prosecutions disadvantage to call all of the experts they called.  I was able to show some minor disagreements between their experts.

What advice do you have for other defense attorneys?

 As the gambler said—you got to know when to hold ‘em and know when to fold ‘em!  Ultimately your client will make the decision of whether to go to trial or enter some agreed upon guilty plea, but you need to help guide him or her in that decision with your knowledge and expertise.  When trying a case it also applies.  Concede the obvious.  For example, in my child abuse case from opening statement we conceded and even emphasized that the child had a serious horrible injury.  We acknowledged every element of the charge except that my client knowingly or intentionally caused the injury.  Nevertheless, the prosecutor insisted on calling witness after witness to point out how horrible this child looked after he got out of the hospital, etc.  So I was able to point out to the jury the purpose of that was not to prove the child had a serious injury, but to build the emotion with fingers pointed at my client in hopes the jury would not let the lack of proof or unsatisfactory nature of the proof get in the way of the verdict the prosecutor wanted.  When you do not concede the obvious, I believe you lose credibility with the jury.

Any special advice for new attorneys?

 I would advise new attorneys to take advantage of the opportunities offered by CDAM.  Go to the trial college.  I cannot emphasize that enough.  I had tried criminal cases for over thirty years when I went to the trial college and I thought it was an excellent opportunity.  It was very educational.  I particularly believed what I learned about voir dire was extremely helpful.

 Secondly, my advice is to prepare, prepare, pre-pare.  That is the key to success. You will never have enough experience that you can try a case without great preparation.  Even if an attorney can com-petently try a case off the cuff without preparation, he or she could do it better if they prepared.

by Neil Leithauser
Associate Editor