Spotlight On: Kevin Schneider

Please tell us something about your background, your legal practice, and what brought you to the practice of criminal defense.

I hate bullies. Always have. And after years of self-reflection, it’s that simple. When I graduated Law School in 1997, I immediately hung my shingle and walked into court a week after being sworn in to simply request a Terry stop evidentiary hearing. “You calling my Officer a liar Counsel,” the Judge chirped. “No, sir. I’m just questioning whether he had probable cause to stop my client.” My request was granted, my client’s bond was revoked for the request, we withdrew our request and took a plea.

That same day, while in court, I was approached by the illustrious attorney Timothy Barkovic. He needed an associate attorney. We met for lunch, he handed me a stack of files and had me get sworn in the federal court the next morning so I could handle a federal probation violation in the afternoon. Mr. Barkovic just happened to be busy with a federal death penalty trial, and I just figured, this is what the practice of criminal defense entails.

I’ve been in court pretty much every day since I graduated. I practice exclusively criminal defense and have been on my own since 2003.

Please tell us about one of your interesting cases.  What were the theories of the parties?  Were experts involved in the case?  

My client, an elderly gentleman, was charged with CSC for groping the neighbor girl who was 14. They were close friends, and the central problem of the case was figuring out why she would make such an allegation. The prosecutor had DNA, STRMix (touch DNA, 110 quadrillion to 1) that came from my client on her upper chest, a well-spoken complainant, and a “confession.” I didn’t call an expert but used the State’s: “This DNA stuff is so good that just touching a bra would show?” (Etc.) “Of course,” was the indignant reply. But no clothes were placed into evidence. The DNA expert wanted the clothes, the SANE nurse wanted the clothes, even the CARE house interviewer wanted the clothes, but the Detective didn’t think it was important.

Between the complainant’s preliminary exam testimony and statements to numerous state actors, I was able to score a couple points on cross, gently. When the detective testified and played my client’s confession, I had a field day. It was not a confession, but a scared, elderly, ethnic gentlemen that had no idea what was going on.

In the end he was acquitted. The jurors thought he had done something wrong, and that he was creepy, but not enough evidence to convict. It was a pure “reasonable doubt” closing, and that “maybe,” “probably,” or “most likely” is not enough to convict in America (as I said pounding my fist on the podium!).

What significant trends – good or bad – have you noticed in Michigan criminal law over the years?

Michigan is on the right track with the decriminalization of many offenses, but much work needs to be done. Issues pertaining to “science” seem to be addressed a little closer by the judiciary, but far from acceptable. To incarcerate someone due to a positive EtG/EtS test while on bond or probation, or charge someone based on “shoe-print” evidence, or STRmix DNA, or have a jury hear from “experts” who are not, etc., is a danger to all. Unfortunately, junk science continues to prevail.

How might our system be improved?

The MSP crime lab needs to be disbanded and replaced by an independent entity, and the courts need to firmly rule what is actually “scientific” evidence. The State also needs to fund the district courts so that they don’t feel compelled to charge someone $1500 for a simple drunk driving. There is no reason to arrest someone for stealing a pack of gum, driving on a suspended license, or causing a simple public disturbance.

Do you have any specific advice for lawyers new to the practice of criminal law? 

If you think that you are somehow “better” than your client, let me assure you, you are not. Every client has a unique story, learn it. Cross examination should be tight and cross-referenced. There’s nothing worse than watching an attorney fumbling around in trial. To this day, I continue to write down and cross reference every question that I ask. Take the time, if you don’t use this method, to pick up and read, or better yet, attend something with Larry Pozner or the numerous other cross examination experts. Know yourself and your weaknesses, as well as your client’s. The jury will see them and will not take kindly to an attorney who they dislike or distrust.

by Neil Leithauser
Associate Editor