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The Criminal Defense Lawyer Quiz | Schmierlaw

How can an Experienced Criminal Defense Attorney Help?

How can a Criminal Defense Attorney Help?

An Experienced Criminal Defense Lawyer Spots the Issues

New Cases for November


Case #3- Manny
An Inconvenient Erection

Manny is 27 years old, newly married

Hispanic, born in the United States to naturalized citisens

Works as a massage therapist for upscale massage parlor in affluent neighborhood

Client reports to manager and police that she felt uncomfortble and sexually assaulted by Manny who was giving her massage

Complains that Manny would have touched her vagina if she hadn't moved her leg

States that Manny touched her in the area above and between her breasts and she was scared he was going to fondle them.

Reported that Manny got an erection and she could see the outline of his erect penis through his Khaki pants.

Manny consented to being interviewed by the police who took the report

Manny admitted that in hindsight he shoud have noticed she was uncomfortable

Manny admitted that he did get an erection but turned away. Said it happens from time to time.

Many was charged with 2nd Degree CSC. The Prosecutor offered to dismiss the charge if Manny pleaded to disorderly conduct

What are the issues and what should Manny do?

Return to the Facts

Manny- The Issues and Decision

Massage parlors generally don't have the money to put into individual video camera and storage systems for each massage room so mixed gender massages can be a problem. And it boils down to "he said-she said".

In this case, the victim reported that she was more concerned with what Manny "might" do rather than anything he "did" do. She moved her leg because she thought he would touch the side of her vagina. He made her feel uncomfortable. She was worried he might fondle her breast. She didn't allege he did anything specific.

At the same time, he admitted, he probably should have been more sensitive to unspoken signals. He also admitted to the police about getting the erection, and going to trial always has certain risks,

So the choice was whether to take the Prosecutor's offer and plead guilty to a 90-day misdemeanor with 6 months probation or go to trial where a loss and conviction would mean Sex Offender registration, a felony record, and while probably no jail time, a lot of money spent on legal fees. Plus he would face all the collateral damages of a sex crime conviction. Getting a good job is all but impossible and having to explain to your children why you can't go to their high school football game is problematic.

Manny grabbed the offer. Probably the best decision. Although Manny didn't do anything wrong and getting an unwanted erection at an inconvenient or embarrassing times happens to young men of his age, it probably was the best decision.

The misdemeanor will have no effect on him, probation will not be a problem- he doesn't drink or even smoke weed, and he is no longer in the massage business. Furthermore, he can expunge the disorderly conviction in the future, something you can't do with a sex crime.

As an Attorney, I didn't feel real good about this case. I don't think Manny had done anything wrong other than being in a lousy business where this stuff happens and being in the wrong place at the wrong time. On the other hand, the risks of going to trial were too great because you never know what a jury might do and if he were convicted of the original crime, he wold have no future.


Case #4-To Come

Return to the Facts

Case #1-Justin

Justin is charged with Assault on a Police Officer when he spit at a Sherrif who had placed him under arrest.

17 years old, African American male

With a group of neighborhood kids at the playground of elementary school.

Neighbors calls Sheriff to report some of the kids are on the roof of the school.

Sheriff's helicopter is dispatched and observes one of the kids in white t-shirt, dark pants, and white sneakers.

Cruiser pulls up and spots Justin who is wearing ashite t-shirt, dark pants, and white sneakers.

Wanting to isolate Justin from the crowd that was gathering, they place Justin under arrest, handcuff him, and then escort him to the cruiser to question him.

When one of the sheriffs tried to question Justin in the back of the cruiser, Justin spits at him and is charged with assault.

Return to the Facts

Justin- What Happened

Like last month's case, there is an issue of whether the Police had probable cause to place Justin under arrest without a warrant.
The helicopter pilot radioed a description of defendant but it only indicated what he was wearing and the description was made while hovering above the scene. Would that be considered probable cause or reasonable suspicion? And if only reasonable suspicion, should the police have obtained a warrant before placing Justin in handcuffs?
But remember, Justin is 17 years old, eligible for HYTA, and the prosecutor offers a reduction of the charge to a misdemeanor. Meaning he can plead in district court and the district court Judge is probably one of the best when it comes to dealing with young men like Justin. She probably has more empathy than some older, white circuit court Judge who was assigned this case.
Lastly, the police office who Justin has spit at, turned out to be a nice guy, willing to forgive what I might not have. In fact after the our Court hearing, he gave his phone number to Justin offering his help or advice if Justin needed it.
Justin took the offer. The Judge put him on probation, gave him a midnight curfew, required him to graduate school, and keep out of trouble If he completed probation, the charge would go away and even the misdemeanor would not show up on his record.


Case #2- Cle

Cle had pleaded guilty to Carrying a Concealed Weapon and was awaiting sentencing.

The Judge, one of the toughest in the County, had agreed to follow the guidelines 0-6 months and would consider HYTA. Although he stated he did not usually give HYTA with gun crimes.

3 Weeks prior to sentencing, Cle was arrested and charged with the same offense when he was again found carrying an illegal weapon without a CPL.

The new charges include CCW, Felon in Possession of a Firearm, and Felony Firearm, a two year mandatory prison sentence. A gun was found on the driver and another behind the passenger seat where Cle was seated.

The driver had given his consent to search the car. Cle consented to a search of his body but nothing was found. There was also a small amount of marijuana found in the front console.

Any Issues and What do you think will happen at sentencing for the firsst case and what will happne with the new case?

Return to the Facts

Cle-What Happened and Will Happen

The facts make you wonder what Cle was thinking. He was awaiting sentencing with one of the toughest Judge's around and did the same thing again. I figured he was going to be sentenced to a minimum 2 years in prison not withstanding the agreement to follow the guidelines.

While ordinarily, if a Judge withdraws his original sentencing agreement (Cobb Agreement), then a Defendant can withdraw his plea. However, if a Defendant violates any condition of his bond, then the Judge can change his mind but the Defendant cannot change his and withdraw the plea.

Amazingly, the Judge went along with the original agreement, and while not agreeing to HYTA, sentenced Cle to 2 years probation.

In the next case, Cle is charge with felony in possession and felony firearm, in addition to the CCW. While Cle had pleaded guilty to a felony, at the time of the new crime, he had not been sentenced. When does the felony attach, at sentencing or at the pleading. Initial research has not turned up a case which specifically addresses that issue in Michigan.

If the prosecutor would drop the latter 2 charges and the Judge would sentence Cle to probation concurrent with the probation he is already under, would you advise Cle to accept such a deal?

We will let you know what happens.

What Does a Criminal Defense Lawyer Do?

Ever wonder what a Criminal Defense Lawyer does? How can a criminal defense lawyer help me if I am charged and arrested for a crime? Or, why do I even need a Criminal Defense Lawyer in the first place?

Now you get a chance to try your hand at being the Criminal Defense Attorney. Each month Schmierlaw will try to post a couple fact patterns from a couple cases. Read the facts of each and decide what the choices are, what you might do in the same situation, and what really happened and why. If you search the site, you can find information about the law regarding the case, what options may be available, and other information to help make an informed choice if this case was about you.

When reading the facts of each case, do what an experienced criminal defense attorney would do. First, look at the facts of the case, check out the law at the Michigan Legislature Website, and see what diversion programs might be available. Do a search on Google for other cases with similar facts and check out legal sites like Find Law, Nolo, or other legal websites for similar cases and the results. And lastly, consider the risk if the case goes to trial and you lose or whether reaching a deal with the Prosecutor makes the most sense. Remember, this is real life with real cases and real consequences.

If you have any questions, comments, or for more information, contact criminal defense lawyer Schmierlaw for an initial no-cost consultation and the best criminal and drunk driving defense possible.

Check Back for Other Criminal Case Fact Patterns

Each month, Schmierlaw will look back at some prior cases and publish the facts of the case from the police report. As many of these cases illustrate, it's not alway black and white. That's why an experienced attorney can provide you the best criminal defense possible.

At Schmierlaw, we look at all the facts, uncover the issues, consider the effects a conviction will have on you and your future and give you the best possible legal advice based on our experience. At Schmierlaw, we are experienced criminal defense lawyers. We know the law and with that knowledge can provide you the best criminal and drunk driving defense possible.

Contact Schmierlaw for an Initial, No-cost Consultation

Law Office of James G. Schmier, PLLC
2222 Attard Street, Birmingham, Michigan 48009
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