Working with Your Criminal Defense Attorney
You’ve been charged with a criminal offense. You’ve hired an attorney to defend you or the court appointed a public defender. In either case you can’t sit back and let the attorney do all the work. If your case is to succeed you must be invested in it and help your attorney maximize his or her efforts on your behalf.
The very first element in an attorney-client relationship is trust. Everything you tell your lawyer is protected by privilege. That means no one – not the police, the prosecutor, or even the judge - can force your attorney to divulge what you told him. Therefore, your job is to be honest and explain, in detail, what happened. As your lawyer asks you questions, answer them frankly – not with weasel words. This will only help you in the long run.
All decisions in your case – at every step - are yours to make guided by your lawyer’s evaluation of the case. Lawyers do not make decisions for clients. Part of your attorney’s job is to educate you about the process you are entering so you can make the decision that’s best for you. You will need to learn whether the charge(s) against you are misdemeanors or felonies. You will need to understand how the court system works. And you’ll need to know your rights.
A misdemeanor in Michigan is generally seen as a crime punishable by a jail term of 12 months or less. A felony, on the other hand, is a crime punishable by a prison term of 12 months or more.
A state district court function as an “intake” court that handles both misdemeanors and felonies.
The Court Process
After arrest, a Defendant – you – face arraignment. This is the court system’s first opportunity to address your charges. The arraigning judge will formally read the charge(s) against you, set or deny bond, and schedule either a preliminary hearing if it’s a misdemeanor or a preliminary hearing if it’s a felony.
The arraigning judge also will ask if you would like to enter a plea. The only acceptable plea at this stage is NOT GUILTY. The judge also will ask if you want an attorney and will appoint a public defender if you are indigent or the judge will allow you to hire an attorney.
- If the charge is a misdemeanor, district court will retain jurisdiction. There will be a preliminary hearing where you or your lawyer meet with the prosecutor to determine if the case 1. Should be dismissed; 2. Could be ended by a plea; or 3. Would require a trial by judge or jury.
- If the charge is a felony, the district court will schedule a preliminary examination. This is a probable cause hearing. The judge, basically, must make two findings from the evidence produced by the prosecutor: 1. Was a crime probably committed? and 2. Did the Defendant – You – probably commit it? If the answer is NO to either, the charge(s) must be dismissed, subject to the prosecutor’s appeal to circuit court. If the answer is YES to BOTH, then your case is “bound over” to Circuit Court for trial.
The Trial Process
District Court misdemeanor trials and Circuit Court felony trials are similar. The burden of proof is on the prosecutor to prove each element of each alleged crime beyond a reasonable doubt. (Compare that to the probability standard of the preliminary examination). The prosecutor must introduce evidence through witnesses. Your attorney has the right to cross-examine each witness to object not only to what a witness might say but also to any physical evidence they might produce. Every crime statute is built with “elements.” For example, assault and battery has two elements: 1. Putting a victim in fear of being touched or struck; 2. Being touched or struck. If the prosecutor proves both, the Defendant would be found guilty. If the prosecutor could show Defendant made statements that he was going to strike someone but couldn’t prove any touching, then Defendant is acquitted.
Circuit Court Trial Process
After a district court “bind-over,” a Defendant then enters circuit court. Every time a Defendant enters a new court, he or she begins with arraignment. While circuit court arraignment is largely a paper-shuffle these days, you and your lawyer might demand to be heard. Then the pretrial process begins. This includes discovery – an effort to find evidence both for and against you – as well as a time when your lawyer and the prosecutor meet with the judge to make some decisions. Will there be a plea or will there be a trial.
The Cobbs Hearing
Michigan felony defendants have the right to make decisions at every stage of their cases. There is no more important decision to make than whether to enter a plea or take a matter to trial. To do so, you need information. A Cobbs hearing (named after a defendant’s case) basically is a meeting among the judge, a prosecutor, and your defense lawyer. The prosecutor will explain to the judge what is alleged. Your attorney would explain your position. The judge then takes this information and suggests what sentence he or she might issue – assuming all the facts are as the prosecutor and your lawyer stated.
Taking the judge’s proposed sentence, your attorney then would meet with you to explain what the judge’s proposed sentence would be. This also would be a good time for your lawyer to explain how “sentencing guidelines” work in Michigan. It is a very complex area.
If you knowingly enter a plea or are convicted by judge or jury, the next stage in the court process is sentencing. No judge in Michigan sentences individuals based solely on his or her whim. If a misdemeanor prosecution, the district court probation office prepares a “Pre-Sentence Investigation” (“PSI”) for the court. The prosecutor and your lawyer review it. Your lawyer must review it with you to make certain it’s 100 percent correct. Likewise, on the circuit level, a state probation officer will prepare the document.
A district court PSI is limited to recommending no more than 12 months in the county jail but it often includes recommendations for a period of probation, particularized terms of probation, as well as fines and costs. The circuit court PSI, depending on the conviction(s), may make recommendations similar to those found in district court PSIs. However, if a felony is involved, the agent must factor the sentencing guidelines and make a recommendation to the court.
In 1998 Michigan’s lawmakers passed a law requiring judges to follow sentencing guidelines in all felony cases. They had six goals: 1. Protect the public; 2. Allow longer sentences for crimes against persons; 3. Provide additional ways to sentence habitual offenders; 4. Balance the seriousness of the crime against a Defendant’s prior record; 5. Reduce sentencing disparities; and 6. Differentiate when a prison term as compared to a lesser term is appropriate.
What resulted is a complex gridding system (now also computerized) in which the agent, the prosecutor, and your lawyer compute your sentencing guidelines. While too complex for this discussion, the computation involves “Offense Variables” (OVs) and “Prior Record Variables” (PRVs). The guidelines also determine crime classes ranging from Class A (life or any term of years) to H (jail or other intermediate sanction).
OVs determine the seriousness of the offense and result in your OV score. PRVs are used to evaluate your criminal history and determine your PRV score. To compare the sentencing guidelines grid to a spreadsheet, your PRVs are columns; your OVs are lines, and where they intersect are cells. Each is numerically weighted. As the evaluator scores your case, the result might suggest a jail term (under 12 months), a straddle term (somewhere between months in jail or a period of prison time), or a prison term.
If the parties agree, that’s the likely path the judge would take. Should your lawyer disagree with either the agent or the prosecutor, then a hearing would be held to argue why a certain cell or cells should be scored lower. Once the math is settled, what results is a minimum sentencing range, such as 24 months to 48 months on the low end, up to the statutory maximum, e.g. 10 years.
Thus a judge dealing with these numbers could sentence a defendant no lower than 24 months and not higher than 48 months. Some judge often average the two and give such a defendant 36 months to 10 years in prison, for example. Judges may go under the guidelines or exceed them, but if so the judge must spell out on the record his or her reasons to do so. Such a decision could later be scrutinized by an appellate lawyer and an appellate court.
A defendant is entitled to a sentencing hearing to discuss sentencing guidelines and any other issue that might affect what sentence the judge imparts. After sentencing to the Michigan Department of Corrections, the court loses jurisdiction and the Defendant’s fate is in the control of the MDOC.
Persons convicted at trial of a criminal offense have a right of appeal. Typically, an appellate lawyer studies trial transcripts looking for errors made by the judge, the prosecutor, and the defense attorney. The goal is to spot an issue that might have led a trier of fact to make the wrong conclusion or to deprive the defendant of a constitutional right. Others who offered pleas may also ask for appellate rev