Spotlight On: Kenneth M. Malkin

Please tell us about your background, about your experience in criminal law, how you came to the practice, where you practice, and how long you have practiced criminal law.

I was an attorney for less than a year when I saw a posting in the county building for a Bay County Assistant Public Defender.  I had done well in that area when in law school, so I decided to apply.  For some reason they liked me, so I got the job.  I recall during my interview being asked "how long do you plan to stay?"  I said "as long as I like it." I stayed for 29 years.  I became a public defender on my birthday in 1985 and retired on my birthday in 2014. When I left, the "as long as I like it" no longer applied.  The caseload progressively increased over the years to save the county money at the expense of our clients.

Currently, I practice with Gower Reddick PLC.  I primarily handle criminal law matters though recently have been branching out into other areas.  However, my career may soon take a dramatic change.  I am one of four candidates running for township supervisor.  If successful, my legal career will be a thing of the past.

Please tell us about one of your interesting cases.  What were the theories of the parties?

Well there are two, an appeal and my last trial.  On the appeal, I was able to persuade Circuit Court Judge Joseph K. Sheeran to rule that a statute totally banning stun guns violated the Right to Bear Arms under the Second Amendment.  The prosecutor appealed.  I won in the Court of Appeals with a published opinion that set precedent in Michigan.  People v Yanna, 297 Mich. App. 137 (2012).  To my knowledge, that was the first time a statute was ruled unconstitutional based on the Second Amendment.  As a practice note, I would point out that the defense bar has not taken advantage of that ruling.  There are many weapons in Michigan that are needlessly banned in violation of the Second Amendment.

In my last trial, my client was charged with Embezzlement.  At the beginning, the case appeared very simple.  My client was the manager of the hotel in charge of bank deposits and not all the cash received made its way to the bank.  I kept requesting more records from the corporation, and as they came in, the total amount embezzled kept going down.  The hotel did not have any proper cash handling policies in place.  Fortunately, I had a highly ethical assistant prosecutor, Jeff Stroud, who did not hide information and provided it to me as soon as it came in.  On the last day the courthouse was open for Christmas break, the jury returned a verdict of Not Guilty!  A nice Christmas gift for a deserving client.

Were experts required?

Yes.  Let me tell you how that happened.  I am currently a township trustee.  I was in a meeting listening to our annual audit when suddenly the light in my head went on.  As the auditor David Quimby left, I told him that I would be calling him.  I called the next day and asked him if he could help me on my embezzlement case.  Dave agreed to sit down with me and my indigent client without charge to review the case to see if he could help.  He brought along Julie Ellis, a Certified Fraud Examiner.  As a result of that meeting, I had Julie appointed as an expert witness.  She testified extensively about the corporate records and cash handling policies.  I am convinced that it was her testimony that resulted in an acquittal of my client.

As an interesting note, the jury talked about how they could tell she was experienced at testifying.  I informed the jurors that it was her first time testifying.

Have you noticed any trends - good or bad - in Michigan criminal law?

I have been involved in efforts to reform indigent defense for many years.  It is good to see that improvements may be forthcoming through the efforts of Jonathan Sacks and the MIDC [Michigan Indigent Defense Commission].

What could be done to improve the practice of criminal law?

I would encourage attorneys to support the efforts of the MIDC.  Its mandate is to help our clients but in doing so it will also help us.  We need reasonable caseloads, better access to experts, and more resources.

Do you have any specific advice for new lawyers?

I would encourage new lawyers to develop a network of experienced attorneys that you can lean on for advice.  I have had to do it twice.  First, as a public defender where I had 3 other experienced attorneys to help me and now as an attorney with Gower Reddick as I venture into new areas of the law.  There is not a better asset than the advice of your fellow attorneys. 

by Neil Leithauser
Associate Editor