Lately, a large percentage of prospective criminal clients have been calling in and asking if we can get their case dismissed. They seem dismayed when I tell them the truth which is: "maybe, but don't count on it."
I am not sure why many defendants are suddenly thinking that the prosecutor's office will just walk away from a case. Perhaps they feel that the prosecutor will "see the light" and just give up. While that does occasionally happen, it is fairly rare. And when it does happen, it usually happens right before the trial begins, as in the day before or the day of.
Even if the facts are weak, many prosecutors will hold out and see if the defendant pleads guilty to something. Many people cave into the pressure and just want to get it over with. The best bet if you are innocent is prepare a vigorous defense and send the message that you are not going down without a fight. Then, and only then, they may decide to save themselves the trouble and their office the money and voluntarily dismiss the case. But again, don't count on it.
Ryan Maesen
Grand Rapids Criminal Attorney
www.maesenlawfirm.com
www.westmichigancriminaldefense.com
Thursday, October 31, 2013
New Location
I can't believe that I have not updated this yet, but our new office location is 1632 Leonard St. NW
Grand Rapids, MI 49504. The move actually took place in July. We are the only tenants presently on the second floor. The phone number and website have stayed the same. A street sign should be up in the near future.
Grand Rapids, MI 49504. The move actually took place in July. We are the only tenants presently on the second floor. The phone number and website have stayed the same. A street sign should be up in the near future.
Tuesday, July 2, 2013
The Snake Oil People Sell
This will be short. I am getting tired of all the people calling me on a daily basis trying to get my hard earned money to list me on their website or somehow get my website to come up on page one of Google. They must think I am stupid or something. I know the legal market is insanely competitive, but I am not a fool. Please stop bothering me. Most of what you are selling is a complete waste of my money and time.
www.maesenlawfirm.com
www.maesenlawfirm.com
Monday, July 1, 2013
It can wise to fight
The majority of people charged with a crime end up taking a plea deal. That means that the prosecutor offers them an opportunity to plea down to a lesser charge or a lesser penalty if they plea guilty and avoid a trial. This can make a lot of sense for some people.
If you are a first time offender and can get a deferred sentence or a diversionary program where you have no permanent record, this can be an enticing offer. If you are not a first time offender but are facing your first felony charge, an opportunity to plea down to a misdemeanor can be a good thing; particularly if you are concerned about getting a job as a convicted felon. Sometimes just staying out of jail is enough to make this worthwhile. Even an innocent person will sometimes take a plea deal to avoid the risk of a lengthy prison sentence if he were to lose at trial.
On the other hand, there are times where people should think long and hard about the consequences of just "pleading out." For example, if the state's case isn't very strong, you may very well get a jury to return a not guilty verdict. It can and does happen. Also, occasionally the prosecutor will make a better offer nearer a trial or may even dismiss the case outright. Having the stomach to hang in there is difficult but can be worth it.
Also, because Michigan tends to punish repeat offenders more severely, avoiding any kind of a record can be to one's long-term advantage. No one thinks that she will get in trouble again, but if she does, having a clean slate the second time around can be a large bargaining chip. Michigan has a number or crimes that become an automatic felony the third time through. Domestic violence, retail fraud, and drunk driving are three common ones.
Those long ago guilty pleas can come back to bite you later on. Think long and hard about the merits of the state's case before accepting any plea offer.
Ryan Maesen
www.maesenlawfirm.com
If you are a first time offender and can get a deferred sentence or a diversionary program where you have no permanent record, this can be an enticing offer. If you are not a first time offender but are facing your first felony charge, an opportunity to plea down to a misdemeanor can be a good thing; particularly if you are concerned about getting a job as a convicted felon. Sometimes just staying out of jail is enough to make this worthwhile. Even an innocent person will sometimes take a plea deal to avoid the risk of a lengthy prison sentence if he were to lose at trial.
On the other hand, there are times where people should think long and hard about the consequences of just "pleading out." For example, if the state's case isn't very strong, you may very well get a jury to return a not guilty verdict. It can and does happen. Also, occasionally the prosecutor will make a better offer nearer a trial or may even dismiss the case outright. Having the stomach to hang in there is difficult but can be worth it.
Also, because Michigan tends to punish repeat offenders more severely, avoiding any kind of a record can be to one's long-term advantage. No one thinks that she will get in trouble again, but if she does, having a clean slate the second time around can be a large bargaining chip. Michigan has a number or crimes that become an automatic felony the third time through. Domestic violence, retail fraud, and drunk driving are three common ones.
Those long ago guilty pleas can come back to bite you later on. Think long and hard about the merits of the state's case before accepting any plea offer.
Ryan Maesen
www.maesenlawfirm.com
Friday, June 28, 2013
Seller's Market
It appears that after several years of a dismal real estate market, that things are finally turning around. The "buyer's market" of the past several years seems to be breaking and turning into a bit of a "seller's market." Whether this is a true seller's market or simply a more normal market it hard to say, but overall it is a sign of good economic health.
Some of the causes of the sluggish market seem to be fading away. For starters, foreclosures are down. These cheaper homes competed with others in the same neighborhood and drove prices down as the banks were anxious to dump their losses. The job market appears to be getting a bit stronger. Not that it is particularly good by historical standards, but it has been slowly improving. And finally, people finally seem to have found a little confidence in the long-term prospects of the area. Home ownership is a major investment and it does have a way of anchoring one the area. After all, if some one wishes to leave Michigan for greener pastures elsewhere but can't take a bath on her house, she is effectively stuck here.
On the other hand, the job market really is not great. And the jobs are not necessarily spread around each industry equally. For example, the legal job market is disastrous in West Michigan. And local government has laid off a lot of people and those jobs don't seem to be coming back. And because wages are still kind of low, prices on homes are not going to shoot up anytime soon. That is bad news for those whose house is underwater.
Only time will tell how long this lasts.
Ryan Maesen
www.maesenlawfirm.com
Some of the causes of the sluggish market seem to be fading away. For starters, foreclosures are down. These cheaper homes competed with others in the same neighborhood and drove prices down as the banks were anxious to dump their losses. The job market appears to be getting a bit stronger. Not that it is particularly good by historical standards, but it has been slowly improving. And finally, people finally seem to have found a little confidence in the long-term prospects of the area. Home ownership is a major investment and it does have a way of anchoring one the area. After all, if some one wishes to leave Michigan for greener pastures elsewhere but can't take a bath on her house, she is effectively stuck here.
On the other hand, the job market really is not great. And the jobs are not necessarily spread around each industry equally. For example, the legal job market is disastrous in West Michigan. And local government has laid off a lot of people and those jobs don't seem to be coming back. And because wages are still kind of low, prices on homes are not going to shoot up anytime soon. That is bad news for those whose house is underwater.
Only time will tell how long this lasts.
Ryan Maesen
www.maesenlawfirm.com
Crime rates are down, but . . .
Statistics have shown that crime is down on a national and statewide level. I suppose this is good. On the other hand, I have noticed an unfortunate side effect to lower crime rates: people who commit minor crimes or crimes where the evidence is not very strong may get charged. In a higher crime era, these types of crimes might simply not warrant precious police and prosecutorial resources. But when things are "slow" on the crime front, it seems that more people get charged with things that seem rather silly.
For example, I have noticed that domestic violence charges seem to have gone up. Also, I have noticed a lot of criminal sexual conduct cases recently. With that one in particular, I know that the evidence in some of these cases is fairly weak. But, for whatever reason, the state is taking more chances charging these people and hoping they plea out. That is frightening for the defendant and his entire family.
It is a very sad flipside to the coin of lower crime overall. Be careful out there.
Ryan Maesen
www.maesenlawfirm.com
For example, I have noticed that domestic violence charges seem to have gone up. Also, I have noticed a lot of criminal sexual conduct cases recently. With that one in particular, I know that the evidence in some of these cases is fairly weak. But, for whatever reason, the state is taking more chances charging these people and hoping they plea out. That is frightening for the defendant and his entire family.
It is a very sad flipside to the coin of lower crime overall. Be careful out there.
Ryan Maesen
www.maesenlawfirm.com
The high cost of Being Cheap
In West Michigan, many people pride themselves on their frugality. And being careful with one's money is often a good idea. Like all things, however, it can backfire. I have run into a number of people over the years that could have saved a small fortune if they had been willing to pay a professional upfront to help make sure potential problems were highlighted and dealt with before they became big problems.
Below are some brief examples of the high cost of being cheap. I am not using actual names and will change the facts slightly to protect people's privacy.
A couple cashes in their life savings to make a large down payment of a fixer upper home that they are buying on land contract. They decide that paying an attorney a few hundred dollars upfront to advise them on the deal is too much cost and bother. Two years later, they get behind in their payments and wind up losing the house. Now, their entire savings and anything they have put into the house are gone forever. They lost over $30,000 all because they believed that the money they paid on the contract was building equity for them. It was not. And they decided to forego the cost of the advice that would helped them understand this risk.
A guy gets pulled over for a OWI. As he has never had one before, he is charged as a first time offender. Because the only evidence was his breathalyzer result, the entire case against him is based on those. He blew a .11 (the legal limit is .08). Because the officer did not observe him continuously for the required 15 minutes before administering the test, the guy could have had the results barred from being admitted from trial, meaning he likely would have had his case dismissed. Because he didn't want to pay $1200 for a good lawyer, he wound up pleading guilty. A couple of years later, he gets pulled over again. Now, he is a second time offender with a minimum mandatory jail sentence. The fines and other penalties are also increased. And if he gets a third OWI arrest, that charge is an automatic felony, and he is looking at prison time. If he had paid to keep his record clean the first time, he wouldn't be going to jail.
The cost of serious representation for a serious felony is very expensive. Frankly, it is beyond the means of many criminal defendants. However, some who can come up with the money often just decide to let it ride with a court appointed attorney or a low cost attorney. The risk here is that the difference between the best representation and less than that can be years or decades in prison. There is no attorney that can guarantee a particular result, but if you are paying an attorney for a lot of his time, logically he is going to spend that time learning more about the nuisances of your cases. And those little details can be the difference between winning and losing; or at least a meaningful plea offer or one that doesn't offer much assistance.
I know this blog may seem self-serving to some, but when life throws you major problems, you need to look at the long term cost. It is a big picture thing. A $5,000 retainer to a good lawyer is only $42 a month (rounded up) if he can save your 10 years in prison. Freedom is worth the price.
Ryan Maesen
www.maesenlawfirm.com
Below are some brief examples of the high cost of being cheap. I am not using actual names and will change the facts slightly to protect people's privacy.
A couple cashes in their life savings to make a large down payment of a fixer upper home that they are buying on land contract. They decide that paying an attorney a few hundred dollars upfront to advise them on the deal is too much cost and bother. Two years later, they get behind in their payments and wind up losing the house. Now, their entire savings and anything they have put into the house are gone forever. They lost over $30,000 all because they believed that the money they paid on the contract was building equity for them. It was not. And they decided to forego the cost of the advice that would helped them understand this risk.
A guy gets pulled over for a OWI. As he has never had one before, he is charged as a first time offender. Because the only evidence was his breathalyzer result, the entire case against him is based on those. He blew a .11 (the legal limit is .08). Because the officer did not observe him continuously for the required 15 minutes before administering the test, the guy could have had the results barred from being admitted from trial, meaning he likely would have had his case dismissed. Because he didn't want to pay $1200 for a good lawyer, he wound up pleading guilty. A couple of years later, he gets pulled over again. Now, he is a second time offender with a minimum mandatory jail sentence. The fines and other penalties are also increased. And if he gets a third OWI arrest, that charge is an automatic felony, and he is looking at prison time. If he had paid to keep his record clean the first time, he wouldn't be going to jail.
The cost of serious representation for a serious felony is very expensive. Frankly, it is beyond the means of many criminal defendants. However, some who can come up with the money often just decide to let it ride with a court appointed attorney or a low cost attorney. The risk here is that the difference between the best representation and less than that can be years or decades in prison. There is no attorney that can guarantee a particular result, but if you are paying an attorney for a lot of his time, logically he is going to spend that time learning more about the nuisances of your cases. And those little details can be the difference between winning and losing; or at least a meaningful plea offer or one that doesn't offer much assistance.
I know this blog may seem self-serving to some, but when life throws you major problems, you need to look at the long term cost. It is a big picture thing. A $5,000 retainer to a good lawyer is only $42 a month (rounded up) if he can save your 10 years in prison. Freedom is worth the price.
Ryan Maesen
www.maesenlawfirm.com
Monday, June 17, 2013
Court takes a long time
It seems that nearly every client complains at how long the legal process can take. To those of us who deal regularly with the court system, the delays are just par for the course. But I do understand the frustration that people feel when they have a problem that urgently needs a solution and they have to wait weeks or months for a judge to make a decision. This is especially frustrating when the facts are not really in dispute and the solution is obvious. For example, a landlord looking to evict a tenant for not paying rent may have to wait a month or so for the process to navigate its way through the court system even though the tenant never disputes owing the money.
Personal injury lawsuits or other forms of civil litigation can take a year or more. This is especially true when insurance is involved. The insurance company may wish to stall for time earning money on the amount they anticipate paying out. If the lawsuit is complex, it may takes several months for all the documents and other evidence to get into the lawyers hands and be analyzed.
Criminal matters generally have a short time frame. Our Constitutional right to a speedy trial guarantees a person charges charged with a felony a trial within 180 days. Of course, there are ways for this to be extended lawfully. For example, if the defendant agrees to adjourn a particular hearing or if he/she agrees to take a court ordered competency exam.
From an attorney's standpoint, delays can be frustrating. We would like to "close the file" and move on. Our time is limited and we want happy clients who can move on wit their lives. There is not much we can do to speed up the process. We do have an ethical obligation not to cause unnecessary delays but there is no bright line on when a delay becomes unethical.
Sometimes we like to have things take a little time so we can fully investigate the law and the facts on our case and be more prepared when we do go to court. No attorney likes be thrown into a case at the last minute. Relying on incomplete facts because things are hurried is doing the client any favors.
The best thing a client can do to help the process move along is to hire an attorney as early as possible on the case. After that, make sure you give him or her all the relevant information needed. That means disclosing bad facts. It is far better to hear them from you than from the other party's attorney. Bad facts can be dealt with. Missing information is like an unseen iceberg. And finally, be open to settling your case before trial. That is probably the best way to get a speedy resolution.
Ryan Maesen
Criminal lawyer, real estate lawyer in Grand Rapids, MI
www.maesenlawfirm.com
Personal injury lawsuits or other forms of civil litigation can take a year or more. This is especially true when insurance is involved. The insurance company may wish to stall for time earning money on the amount they anticipate paying out. If the lawsuit is complex, it may takes several months for all the documents and other evidence to get into the lawyers hands and be analyzed.
Criminal matters generally have a short time frame. Our Constitutional right to a speedy trial guarantees a person charges charged with a felony a trial within 180 days. Of course, there are ways for this to be extended lawfully. For example, if the defendant agrees to adjourn a particular hearing or if he/she agrees to take a court ordered competency exam.
From an attorney's standpoint, delays can be frustrating. We would like to "close the file" and move on. Our time is limited and we want happy clients who can move on wit their lives. There is not much we can do to speed up the process. We do have an ethical obligation not to cause unnecessary delays but there is no bright line on when a delay becomes unethical.
Sometimes we like to have things take a little time so we can fully investigate the law and the facts on our case and be more prepared when we do go to court. No attorney likes be thrown into a case at the last minute. Relying on incomplete facts because things are hurried is doing the client any favors.
The best thing a client can do to help the process move along is to hire an attorney as early as possible on the case. After that, make sure you give him or her all the relevant information needed. That means disclosing bad facts. It is far better to hear them from you than from the other party's attorney. Bad facts can be dealt with. Missing information is like an unseen iceberg. And finally, be open to settling your case before trial. That is probably the best way to get a speedy resolution.
Ryan Maesen
Criminal lawyer, real estate lawyer in Grand Rapids, MI
www.maesenlawfirm.com
Wednesday, June 12, 2013
Get the facts first
I often see these high profile cases in the media about a person accused of some crime. It frustrates me how both the media and the public immediately assume that a person is guilty just because they have been arrested and accused of something. We have a Constitution that requires a person be presumed innocent. Sadly, most people nowadays presume a person is a guilty until proven innocence.
This is troubling for two reasons. First, a person can rarely prove he is innocent. Unless there is a good alibi defense or some other affirmative defense, often it comes down to one person's word against another. If a defendant tries to prove he is innocent, he is then taking on a burden of proof in the eyes of many jurors. The trial then becomes a credibility war; which few defendants can win. Many people charged with crimes are below average intelligence, scared to death, and are not able to articulate their case well enough to convince a skeptical jury.
The second reason is that is makes jurors ineffective at doing their job. The whole concept of an unbiased jury that will decide based on the evidence goes out the window if people are pre-disposed to assume some one is guilty. The whole point of a trial is to ascertain the facts. A person whose mind if half made up can't do that. If the emotional pull of the charge, (criminal sexual conduct with a miner, murder, robbery etc) already puts a person in state of skepticism towards the defendant the case is already lost.
People don't understand or appreciate how many people are in prison based on false accusations and juries that believed the lies in spite of the evidence. It is important that we all keep an open mind and remember that the government may someday come after you or a loved one. The Constitution will no longer seem like a worthless piece of paper at that point.
Ryan Maesen
Criminal Defense lawyer Grand Rapids, MI
www.maesenlawfirm.com
This is troubling for two reasons. First, a person can rarely prove he is innocent. Unless there is a good alibi defense or some other affirmative defense, often it comes down to one person's word against another. If a defendant tries to prove he is innocent, he is then taking on a burden of proof in the eyes of many jurors. The trial then becomes a credibility war; which few defendants can win. Many people charged with crimes are below average intelligence, scared to death, and are not able to articulate their case well enough to convince a skeptical jury.
The second reason is that is makes jurors ineffective at doing their job. The whole concept of an unbiased jury that will decide based on the evidence goes out the window if people are pre-disposed to assume some one is guilty. The whole point of a trial is to ascertain the facts. A person whose mind if half made up can't do that. If the emotional pull of the charge, (criminal sexual conduct with a miner, murder, robbery etc) already puts a person in state of skepticism towards the defendant the case is already lost.
People don't understand or appreciate how many people are in prison based on false accusations and juries that believed the lies in spite of the evidence. It is important that we all keep an open mind and remember that the government may someday come after you or a loved one. The Constitution will no longer seem like a worthless piece of paper at that point.
Ryan Maesen
Criminal Defense lawyer Grand Rapids, MI
www.maesenlawfirm.com
Tuesday, April 2, 2013
Some thoughts on the Constitution
This will be a short thought on our Constitution and our Bill of Rights. Four of the first 10 Amendments to the Constitution deal exclusively with the rights of the criminally accused. Our Founding Fathers put alot of thought into the power of the state versus the power of the accused in a criminal matter. They understood that an average person could never match the resources of the government when it came to presenting a case. They also understood that a person cannot really prove he is innocent except in rare cases. For these reasons, they gave each of us some very basic protections that need to be strictly enforced. These include:
There are others but these form the foundation. Along with the state's burden on proving the case beyond a reasonable doubt, these are our basic protections against unfounded accusations. It doesn't matter if someone is guilty but rather that the state can meet its burden of proof.
I will right another blog on how I think Conservative jurors need to go back to high school to re learn these things.
Ryan Maesen, Criminal Lawyer Grand Rapids. www.maesenlawfirm.com
- The right to not testify or make a statement or testify.
- The right to an attorney (that the state needs to pay for it for the poor is not in the Constitution but came later via the Warren Court).
- The right to a trial of a jury of one's peers. This is important. These are our fellow citizens the state is going after.
- Protection from unreasonable searches and seizures. Without this, the police can just bust down your door and plant evidence at their whim.
- Cruel and unusual punishment. I would argue the death penalty and Driver Responsibility fees fall under this category as doe any "three strikes" law).
There are others but these form the foundation. Along with the state's burden on proving the case beyond a reasonable doubt, these are our basic protections against unfounded accusations. It doesn't matter if someone is guilty but rather that the state can meet its burden of proof.
I will right another blog on how I think Conservative jurors need to go back to high school to re learn these things.
Ryan Maesen, Criminal Lawyer Grand Rapids. www.maesenlawfirm.com
Monday, February 18, 2013
Criminal Sexual Conduct 1st and 3rd Degree
Criminal Sexual Conduct (CSC) in the 1st and 3rd
Degree are felonies that require some form of penetration by the accused to the
victim. The penetration requires some object be placed in the genital or anal
opening of the victim. The object can be a part of the accused body or some
foreign object. Criminal Sexual Conduct in the 1st Degree is a
felony that can result in life imprisonment. Criminal Sexual Conduct in the 3rd
Degree is punishable by a maximum 15 years in prison. The difference between
the two are the “aggravating circumstances” present.
If a defendant has put a part of his or her body into the
body of another, and one or more of the following is present, then the charge
is CSC 1st Degree:
(a)
That other person is under 13 years of age.(b) That other person is at least 13 but less than 16 years of age and any of the following:
(i) The actor is a member of the same household as the victim.
(ii) The actor is related to the victim by blood or affinity to the fourth degree.
(iii) The actor is in a position of authority over the victim and used this authority to coerce the victim to submit.
(iv) The actor is a teacher, substitute teacher, or administrator of the public school, nonpublic school, school district, or intermediate school district in which that other person is enrolled.
(v) The actor is an employee or a contractual service provider of the public school, nonpublic school, school district, or intermediate school district in which that other person is enrolled, or is a volunteer who is not a student in any public school or nonpublic school, or is an employee of this state or of a local unit of government of this state or of the United States assigned to provide any service to that public school, nonpublic school, school district, or intermediate school district, and the actor uses his or her employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person.
(c) Sexual penetration occurs under circumstances involving the commission of any other felony.
(d) The actor is aided or abetted by 1 or more other persons and either of the following circumstances exists:
(i) The actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physicallyhelpless.
(ii) The actor uses force or coercion to accomplish the sexual penetration. Force or coercion includes, but is not limited to, any of the circumstances listed in subdivision (f).
(e) The actor is armed with a weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a weapon.
(f) The actor causes personal injury to the victim and force or coercion is used to accomplish sexual penetration. Force or coercion includes, but is not limited to, any of the following circumstances:
(i) When the actor overcomes the victim through the actual application of physical force or physical violence.
(ii) When the actor coerces the victim to submit by threatening to use force or violence on the victim, and the victim believes that the actor has the present ability to execute these threats.
(iii) When the actor coerces the victim to submit by threatening to retaliate in the future against the victim, or any other person, and the victim believes that the actor has the ability to execute this threat. As used in this subdivision, "to retaliate" includes threats of physical punishment, kidnapping, or extortion.
(iv) When the actor engages in the medical treatment or examination of the victim in a manner or for purposes that are medically recognized as unethical or unacceptable.
(v) When the actor, through concealment or by the element of surprise, is able to overcome the victim.
(g) The actor causes personal injury to the victim, and the actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless.
(h) That other person is mentally incapable, mentally disabled, mentally incapacitated, or physically helpless, and any of the following:
(i) The actor is related to the victim by blood or affinity to the fourth degree.
(ii) The actor is in a position of authority over the victim and used this authority to coerce the victim to submit.
If the defendant has put a part of his or her body into the
body of another, and one or more of the following:
(a)
That other person is at least 13 years of age and under 16 years of age.(b) Force or coercion is used to accomplish the sexual penetration. Force or coercion includes but is not limited to any of the circumstances listed in section 520b(1)(f)(i) to (v).
(c) The actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless.
(d) That other person is related to the actor by blood or affinity to the third degree and the sexual penetration occurs under circumstances not otherwise prohibited by this chapter. It is an affirmative defense to a prosecution under this subdivision that the other person was in a position of authority over the defendant and used this authority to coerce the defendant to violate this subdivision. The defendant has the burden of proving this defense by a preponderance of the evidence. This subdivision does not apply if both persons are lawfully married to each other at the time of the alleged violation.
(e) That other person is at least 16 years of age but less than 18 years of age and a student at a public school or nonpublic school, and either of the following applies:
(i) The actor is a teacher, substitute teacher, or administrator of that public school, nonpublic school, school district, or intermediate school district. This subparagraph does not apply if the other person is emancipated or if both persons are lawfully married to each other at the time of the alleged violation.
(ii) The actor is an employee or a contractual service provider of the public school, nonpublic school, school district, or intermediate school district in which that other person is enrolled, or is a volunteer who is not a student in any public school or nonpublic school, or is an employee of this state or of a local unit of government of this state or of the United States assigned to provide any service to that public school, nonpublic school, school district, or intermediate school district, and the actor uses his or her employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person.
(f) That other person is at least 16 years old but less than 26 years of age and is receiving special education services, and either of the following applies:
(i) The actor is a teacher, substitute teacher, administrator, employee, or contractual service provider of the public school, nonpublic school, school district, or intermediate school district from which that other person receives the special education services. This subparagraph does not apply if both persons are lawfully married to each other at the time of the alleged violation.
(ii) The actor is a volunteer who is not a student in any public school or nonpublic school, or is an employee of this state or of a local unit of government of this state or of the United States assigned to provide any service to that public school, nonpublic school, school district, or intermediate school district, and the actor uses his or her employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person.
As you can see, most of these charges are related to sex
with persons under 16 years old. Be careful and make sure you admit nothing if
someone accuses you of one of these charges.
Ryan Maesen
Criminal Attorney, Grand Rapids, MIwww.maesenlawfirm.com
Wednesday, February 13, 2013
Criminal Sexual Conduct Degrees
Michigan has 4 degrees of criminal sexual misconduct. The penalties for these crimes are amont the most serious under Michigan law. If you are facing one of these charges, get a very good attorney immediately. In most cases, these charges are not going to resolved by probation or a slap on the wrist. If the victim is under 17, your entire future is on the the line. Don't take a criminal sexual conduct charge lightly.
The commentary from The Michigan Model Criminal Jury Instructions distinguish the different degrees as follows:
The commentary from The Michigan Model Criminal Jury Instructions distinguish the different degrees as follows:
"The Michigan statute concerning criminal sexual conduct, MCL 750.520a et seq., creates four degrees of the offense. First-degree criminal sexual conduct involves an act of sexual penetration accompanied by one or more aggravating circumstances set forth in MCL 750.520b. Second-degree criminal sexual conduct involves “sexual contact” accompanied by any of the aggravating circumstances for criminal sexual conduct in the first degree or one or more of four additional circumstances relating to sexual contact between state or county corrections officers and inmates, probationers, or pretrial detainees. MCL 750.520c. Third-degree criminal sexual conduct, like criminal sexual conduct in the first degree, requires for conviction an act of sexual penetration accompanied by designated aggravating circumstances, MCL 750.520d, other than those specified for first-degree criminal sexual conduct. Finally, criminal sexual conduct in the fourth degree involves sexual contact aggravated by circumstances not specified for criminal sexual conduct in the second degree. MCL 750.520e.
In sum, first- and third-degree criminal sexual conduct require an act of sexual penetration with “greater” and “lesser” aggravating circumstances respectively, whereas criminal sexual conduct in the second degree and the fourth degree require sexual contact with “greater” and “lesser” aggravating circumstances. Criminal sexual conduct in the first degree is punishable by life or any term of years; criminal sexual conduct in the second degree and criminal sexual conduct in the third degree are punishable by up to 15 years in prison; and criminal sexual conduct in the fourth degree is punishable by up to 2 years in prison.
The statute also creates the offenses of assault with intent to commit criminal sexual conduct involving penetration, a 10-year felony, and assault with intent to commit criminal sexual conduct in the second degree, a 5-year felony. MCL 750.520g."
In future blogs, I will discuss each degree in more depth and give examples of the aggrevating circumstances mostly commonly handled in my practice.
For more information, see www.maesenlawfirm.com
Ryan Maesen Criminal Defense Attorney, Grand Rapids, MI
Quitclaim and Warranty Deeds
The two most common types of deeds in use are the standard warranty deed and the quitclaim deed. While both are effective, there are important differences that should be understood.
Warranty deeds use the word "warrants" in the first paragraph of the deed. This warrants that the seller has good title with no other adverse claims against the title. This protects the buyer in that the seller is liable for the cost of removing any adverse claim to title. This type of deed is most commonly used when some one is buying or selling real estate. It offers the greatest protection to the buyer and is what title insurance companies require to issue a policy.
A quitclaim deed uses the word "quitclaims" and only conveys the interest the seller holds. As a practical matter, most people selling their home have a good and clean title. This type of deed is often used when adding or removing family members from a home. In that case, the parties involved know the title is good and simply want an efficient way to transfer their home among family.
For more information on real estate legal issues, please see my website at www.maesenlawfirm.com
Ryan Maesen
Warranty deeds use the word "warrants" in the first paragraph of the deed. This warrants that the seller has good title with no other adverse claims against the title. This protects the buyer in that the seller is liable for the cost of removing any adverse claim to title. This type of deed is most commonly used when some one is buying or selling real estate. It offers the greatest protection to the buyer and is what title insurance companies require to issue a policy.
A quitclaim deed uses the word "quitclaims" and only conveys the interest the seller holds. As a practical matter, most people selling their home have a good and clean title. This type of deed is often used when adding or removing family members from a home. In that case, the parties involved know the title is good and simply want an efficient way to transfer their home among family.
For more information on real estate legal issues, please see my website at www.maesenlawfirm.com
Ryan Maesen
Wednesday, February 6, 2013
Criminal Law FAQ and Answers
Here are some frequently asked questions for those facing criminal charges. The answers I am writing are general in nature. Each case is unique.
Will I end up in jail or prison?
For most people, this is the scariest question. The good news is that for most people, the answer is no. If you are facing a misdemeanor or a non violent felony and you don't have a long criminal record, you likely will not go to jail. However, there is always that risk. Also, because your final sentence is up the judge, don't trust a cop or prosecutor that tells you to just confess or plea to avoid jail. They don't get to make that call.
How will a charge or conviction affect me down the road?
There is a separate blog posted that deals with some of the consequences of a criminal conviction. You need to be especially careful with sex crimes, felonies, and misdemeanors involving theft or dishonesty.
Are there options available for juvenille or first time offenders?
Yes, but these vary from county to county and court to court. Generally, a youthful first time offender can get a much better deal than an adult. The law doesn't do much for a first time offender other than you can't have prior convictions held against you at sentencing. Also, being convicted more than once for the same crime can sometimes increase the maximum penalty. Examples include drunk driving and retail fraud.
What is a diversionary program and can I qualify?
A diversionary program is a program in which the accused pleads guilty to a lesser charge (or sometimes the original charge) and then, if he or she completes a probationary period, the charge is dismissed and there is no public record of a conviction. These programs are not easy to qualify for. Generally, if you are not a first time offender or over 21, don't count of these. But there are exceptions.
Can I ever get this of my record?
Michigan allows for the expungement of one crime if 5 years have passed since the conviction. A subsequent conviction of any crime makes one ineligible for expungement. There are exceptions for some minor misdemeanors.
Did the police act properly?
This question needs a careful analysis on a case by case basis. A person does have constitutional rights that the police must follow in gathering evidence but a full discussion is beyond the scope of this blog. Generally if the evidence is gathered improperly, it is not admissable against the accused.
What if I have already confesssed or made a statement?
Don't worry. It may not be admissible for a variety of reasons. Like most evidence related issues, a case by case analysis is required.
Is my case winnable?
To lose your case, the prosecution must be able to prove its case beyond a reasonable doubt. That means they need alot of good evidence. Even if you are guilty, you may still be acquitted if the evidence simply isn't strong enough or their witnesses are believable. Many cases are winnable if the accused is willing to fight it hard enough and long enough.
Can I afford a good attorney?
Hiring a good attorney is expensive. To fully fight your case, your attorney is going to have to put in alot of time and effort and spend money on his business to provide you the best possible outcome. You do get what you pay for. Many people decided it is not worth it. That is a personal choice. Look long and hard at the long term outcome of losing and then decide.
Will I end up in jail or prison?
For most people, this is the scariest question. The good news is that for most people, the answer is no. If you are facing a misdemeanor or a non violent felony and you don't have a long criminal record, you likely will not go to jail. However, there is always that risk. Also, because your final sentence is up the judge, don't trust a cop or prosecutor that tells you to just confess or plea to avoid jail. They don't get to make that call.
How will a charge or conviction affect me down the road?
There is a separate blog posted that deals with some of the consequences of a criminal conviction. You need to be especially careful with sex crimes, felonies, and misdemeanors involving theft or dishonesty.
Are there options available for juvenille or first time offenders?
Yes, but these vary from county to county and court to court. Generally, a youthful first time offender can get a much better deal than an adult. The law doesn't do much for a first time offender other than you can't have prior convictions held against you at sentencing. Also, being convicted more than once for the same crime can sometimes increase the maximum penalty. Examples include drunk driving and retail fraud.
What is a diversionary program and can I qualify?
A diversionary program is a program in which the accused pleads guilty to a lesser charge (or sometimes the original charge) and then, if he or she completes a probationary period, the charge is dismissed and there is no public record of a conviction. These programs are not easy to qualify for. Generally, if you are not a first time offender or over 21, don't count of these. But there are exceptions.
Can I ever get this of my record?
Michigan allows for the expungement of one crime if 5 years have passed since the conviction. A subsequent conviction of any crime makes one ineligible for expungement. There are exceptions for some minor misdemeanors.
Did the police act properly?
This question needs a careful analysis on a case by case basis. A person does have constitutional rights that the police must follow in gathering evidence but a full discussion is beyond the scope of this blog. Generally if the evidence is gathered improperly, it is not admissable against the accused.
What if I have already confesssed or made a statement?
Don't worry. It may not be admissible for a variety of reasons. Like most evidence related issues, a case by case analysis is required.
Is my case winnable?
To lose your case, the prosecution must be able to prove its case beyond a reasonable doubt. That means they need alot of good evidence. Even if you are guilty, you may still be acquitted if the evidence simply isn't strong enough or their witnesses are believable. Many cases are winnable if the accused is willing to fight it hard enough and long enough.
Can I afford a good attorney?
Hiring a good attorney is expensive. To fully fight your case, your attorney is going to have to put in alot of time and effort and spend money on his business to provide you the best possible outcome. You do get what you pay for. Many people decided it is not worth it. That is a personal choice. Look long and hard at the long term outcome of losing and then decide.
Why Defend Criminals Part III
Defending those accused of a crime is a tremendous uphill battle. Even if the prosecution has a weak case, they will rarely admit a mistake and proceed with charges even if they know a jury will likely find against them.
I don't know why this is. Maybe ego or hubris. Sometimes they justify it by saying "we already spent taxpayer money on this, we have to see it through." It would seem more sensible to cut their loses instead of wasting more money that will go nowhere. Not to mention saving the time of the jurors that have to come in and hear a pointless trial when they would rather be anywhere else.
However, even if an attorney has a weak case, there is still an uncertainty of a jury. I once had a Wyoming jury convict a man I know was innocent. It still haunts me. The evidence in that case was insane, but somehow justice was not done. On the other hand, I have had juries return a not guilty verdict when I was pretty certain my client was guilty. Our system is designed so that a jury must acquit if the evidence is not strong enough, even if the jurors personally feel the person probably did it. Probably isn't good enough. That was the intent of our founding fathers. A guilty man going free is far better than an innocent man convicted. Anyone who doesn't understand this needs to sit at the loney table in the courtroom and watch and prosecutor and an endless stream of cops accuse him or her of committing some heinous deed.
It is critical than the accused have someone who can care about him and guide him through the tough times. For first time offenders, the entire family often suffers along with the accused. There is tremendous fear. No one knows what will happen. The long term consequences of a conviction can ruin a life. It is very much worth fighting for. Because I know how these people feel, I know what they need to hear and a I know what they need to see from their attorney. They need someone to act as both a sword and shield. Even when they are guilty, they need to have their rights protected and their dignity left in tact. A person may committ a crime in a moment but that shouldn't erase a lifetime of being a good citizen. A person is not the act she has been accused of. And we all need to remember that. God forbid you even get charged with something you didn't do, you will be glad there are people they can and will lay it down for you.
Ryan Maesen, Criminal Attorney, Grand Rapids, MI
www.maesenlawfirm.com
I
I don't know why this is. Maybe ego or hubris. Sometimes they justify it by saying "we already spent taxpayer money on this, we have to see it through." It would seem more sensible to cut their loses instead of wasting more money that will go nowhere. Not to mention saving the time of the jurors that have to come in and hear a pointless trial when they would rather be anywhere else.
However, even if an attorney has a weak case, there is still an uncertainty of a jury. I once had a Wyoming jury convict a man I know was innocent. It still haunts me. The evidence in that case was insane, but somehow justice was not done. On the other hand, I have had juries return a not guilty verdict when I was pretty certain my client was guilty. Our system is designed so that a jury must acquit if the evidence is not strong enough, even if the jurors personally feel the person probably did it. Probably isn't good enough. That was the intent of our founding fathers. A guilty man going free is far better than an innocent man convicted. Anyone who doesn't understand this needs to sit at the loney table in the courtroom and watch and prosecutor and an endless stream of cops accuse him or her of committing some heinous deed.
It is critical than the accused have someone who can care about him and guide him through the tough times. For first time offenders, the entire family often suffers along with the accused. There is tremendous fear. No one knows what will happen. The long term consequences of a conviction can ruin a life. It is very much worth fighting for. Because I know how these people feel, I know what they need to hear and a I know what they need to see from their attorney. They need someone to act as both a sword and shield. Even when they are guilty, they need to have their rights protected and their dignity left in tact. A person may committ a crime in a moment but that shouldn't erase a lifetime of being a good citizen. A person is not the act she has been accused of. And we all need to remember that. God forbid you even get charged with something you didn't do, you will be glad there are people they can and will lay it down for you.
Ryan Maesen, Criminal Attorney, Grand Rapids, MI
www.maesenlawfirm.com
I
Monday, January 28, 2013
Should you have an attorney review Real Estate documents?
For most people, the answer to this question, is "yes, but I can't afford it." While it is true that it may not be cheap to have an attorney thoroughly review a document before you sign it, it will most likely cost much more if you sign something that is not in your best interest.
Real estate transactions vary widely in their complexity. Even if the parties understand what they are getting into, they may be fine print that is not carefully read. Typically the document is drafted by the person who has the stronger bargaining position and the document is designed to protect their interests. For example, in a simple landlord tenant arrangement, the leases are almost always drafted by the landlord (or its attorney) and are given to the tenant on a take it or leave it basis. The tenant doesn't get to negotiate the terms at all. A failure of the tenant to undestand, say an acceleration clause on past due rent may wind up paying alot of money if the tenant breaches the lease. Also, the landlord by waive liability for certain repairs (when allowable). This could creat a tough situation for a tenant.
On the purchase of a home, the buyer and seller put their trust in their realtors. Most realtors do a good job protecting their clients interests. However, they get paid if the sales closes and only if the sale closes. This creates an inherent conflict. An attorney can provide unemotional advice because he is not being paid only if the deal goes through. Most of the other parties to the transaction; title company, bank, and realtors don't make money unless the deal is closed. Also, while some attorneys get their real estate license to receive proceeds at closing as their attorney fee, keep in mind this too creates a conflict of interest as they only get paid to close, not to advise.
If you are thinking of selling your home by yourself, an attorney can be a valuable resource in both explaining the necessary documents you will need, drafting them, and making sure the closing goes smoothly. Don't assume boilerplate documents found online are good enough. Your attorney can draft them to the specifications you need to protect your interest to the maximum extent allowed by law.
Don't sign or have some one else sign something that turns out to be an unenforceable contract later on because you fear the cost of having a professional look at the documents. The few hundred dollars of an attorney's time can help you recognize pitfuls and avoid problems later on. Being cheap here can cost thousands later.
I once had clients who had signed a land contract that required them to pay the remaining amount of the contract in one balloon payment at the end of 2 years. That is not an unusual provision. What was unusual was that the contract required them to pay 150% of the then fair market value of the house. Unless that house appreciates dramatically in two years (which wouldn't have happened), they were never going to get a loan for enough to cover the contract, meaning they would lose their entire investment because they would have breached the contract. Fortunately, I was able to negotiate them out of the contract without having to pay a further dime to the seller, but they would have been wiser to call me before signing the document.
For more informatin, see my website at www.maesenlawfirm.com
Ryan Maesen, Real Estate Attorney, Grand Rapids, Michigan
Real estate transactions vary widely in their complexity. Even if the parties understand what they are getting into, they may be fine print that is not carefully read. Typically the document is drafted by the person who has the stronger bargaining position and the document is designed to protect their interests. For example, in a simple landlord tenant arrangement, the leases are almost always drafted by the landlord (or its attorney) and are given to the tenant on a take it or leave it basis. The tenant doesn't get to negotiate the terms at all. A failure of the tenant to undestand, say an acceleration clause on past due rent may wind up paying alot of money if the tenant breaches the lease. Also, the landlord by waive liability for certain repairs (when allowable). This could creat a tough situation for a tenant.
On the purchase of a home, the buyer and seller put their trust in their realtors. Most realtors do a good job protecting their clients interests. However, they get paid if the sales closes and only if the sale closes. This creates an inherent conflict. An attorney can provide unemotional advice because he is not being paid only if the deal goes through. Most of the other parties to the transaction; title company, bank, and realtors don't make money unless the deal is closed. Also, while some attorneys get their real estate license to receive proceeds at closing as their attorney fee, keep in mind this too creates a conflict of interest as they only get paid to close, not to advise.
If you are thinking of selling your home by yourself, an attorney can be a valuable resource in both explaining the necessary documents you will need, drafting them, and making sure the closing goes smoothly. Don't assume boilerplate documents found online are good enough. Your attorney can draft them to the specifications you need to protect your interest to the maximum extent allowed by law.
Don't sign or have some one else sign something that turns out to be an unenforceable contract later on because you fear the cost of having a professional look at the documents. The few hundred dollars of an attorney's time can help you recognize pitfuls and avoid problems later on. Being cheap here can cost thousands later.
I once had clients who had signed a land contract that required them to pay the remaining amount of the contract in one balloon payment at the end of 2 years. That is not an unusual provision. What was unusual was that the contract required them to pay 150% of the then fair market value of the house. Unless that house appreciates dramatically in two years (which wouldn't have happened), they were never going to get a loan for enough to cover the contract, meaning they would lose their entire investment because they would have breached the contract. Fortunately, I was able to negotiate them out of the contract without having to pay a further dime to the seller, but they would have been wiser to call me before signing the document.
For more informatin, see my website at www.maesenlawfirm.com
Ryan Maesen, Real Estate Attorney, Grand Rapids, Michigan
Friday, January 25, 2013
Real Estate Law Basics
This blog is designed to categorize common real estate issues. While it isn't designed to answer specific questions, it is puts things in a logical context.
All real estate problems begin with determining:
To see more, please visit
www.maesenlawfirm.com
Ryan Maesen, Real Estate Lawyer Grand Rapids, MI
All real estate problems begin with determining:
- Who owns the property?
- Who can possess it?
- Who is financing it?
- Who can use it?
- What documents were signed and by whom?
To see more, please visit
www.maesenlawfirm.com
Ryan Maesen, Real Estate Lawyer Grand Rapids, MI
Tuesday, January 22, 2013
Why Represent Criminals (Part II)
It's Personal
Growing up I always dreamed of a career in law enforcement. My particular interest was working for the FBI fighting organized crime. It seemed very exciting and glamous to me.
However it was not to be. Something happened that changed the way I viewed things forever.
On May 25, 1996, the night before I was to graduate from high school, I was arrested and charged with Malicious Destructiion of Property over $100, which was a 2-4 year felony in those days. A friend and I had taken BB guns and show at the window of a school. This was a Saturday night and no one was in the building. I fired one shot, he fired fourteen. None penetrated all the way through the double paned glass. We had originally planned on shooting BB guns in my backyard at aluminum cans and the like. For some reason, he pulled into that school parking lot. In any event, some one saw us and called the police.
When the police arrived (as a I recall there were four cars and 6 officers total), I was roughly pushed into the hood of my friend's car and searched. I recall that I lifted my hands up off the car about an inch to be more comfortable while the officder searched my pockets. He grabbed me and "put them back on the car, I am not going to tell you again." They put the handcuffs on so tight that my right thumb and index finger went numb. To this day, my right thumb does not have full feeling. They wouldn't grant any my requests to loosen them.
We were never given miranda rights and we both confessed on the spot. I can't into words how quickly I was "scared straight." They kept telling us that we were going to spend 2-4 years in prison for this. That seems awfully harsh to me for what essentially amounted to breaking a window, but I really didn't know any better.
They took us to the Kent County Jail where we were booked and put in a cell for the night. I remember laying in that cold cell unable to sleep, wondering if I was going to get out again. I never could have imagined how much I was simply wanted to get up and walk out the door of the cell. Not to escape but to have some sense of freedom. I really missed the choices I had every moment of every day. I laid there wondering how long that would be jeopardized for. It was incredibly frightening.
The next morning I spoke with a detective who told me that this was not a serious crime and that I was not likely to see any jail from this if I was cooperative and told the truth. He did read me my miranda rights and was a bit more civil. I think he realized that I wasn't a deliquent but a kid who made mistake.
We were arraigned later that morning and I was released in time to attend my high school graduation. The clerk at the jail told me that charges had been dismissed. Needless to say, some of the joy was taken out of the event.
(Part III forthcoming)
Ryan Maesen, Criminal Lawyer in Grand Rapids, MI
www.maesenlawfirm.com
Thursday, January 17, 2013
Why represent Criminals (Part I)
Why do attorneys represent criminals?
I think most defense attorneys get asked this once in a while. If someone discovers I recently got a jury to return a not guilty verdict in favor of of my client, I sometimes get the follow up question:
How can you do that? You are getting criminals off.
As those are fair questions, I suppose they warrant a fair response. But first, I need to explain how a criminal proceeding works.
In our system, each person who is charged with a crime is merely accused of a committing a crime. We have all heard of the presumption of innocence. What that means is that the sole purpose of initiating criminal proceedings against a person is to see if the State (or whatever unit of government is handling the prosecution) can produce enough evidence to convice a fact finder (judge or jury) that each element of the charged offense(s), offenses of proved beyond a reasonable doubt. Strictly speaking, whether the person actually committed the crime is not the issue, but rather the sufficiency of the evidence. It is not the burden of the accused to provde innocence, but on the State to prove guilt.
In many instances, an innocence person couldn't prove his innocence anyway. How do you prove you didn't steal something from a retail store? Because nobody found it on you? So what, the state can say, you may have thrown it out your car window on the way home. After all, some one says they she saw you take it and the store says they never found the item. If you did steal it, shouldn't they have more proof than some one claiming to see something. Anyone can claim to see anyone else doing anything. That is why the burden is on those making the accusations.
The State can come at a person with such awesome resources. The average person can't possibly pay attorneys enough to win a war of attrition with the government. For that reason, our Founding Fathers laid out protections in our Constitution to even the playing field. That is why we are protected from unlawful searches and seizures, the right to not self-incriminate, to confront our accusers, to a trial by a jury of our peers, and the protection from torture and other cruel and unusual punishments that have been historically used to induce confessions.
These protections are available to everyone accused of a crime, whether he is guilty or not. These are particulary important to a person who is in fact innocent or who knows that the State does not have enough evidence or that is obtained what evidence it does have unlawfully. They give a person a fighting chance. Justice is done with the state can prove its case, not when it can get a conviction. Our Founding Fathers, like most well educated people, understand that it is far better for a free society to let the occassional guilty man go free than for a single innocent person be convicted.
Ryan Maesen, Criminal Lawyer, Grand Rapids, MI
Ryan Maesen PLC www.maesenlawfirm.com
I think most defense attorneys get asked this once in a while. If someone discovers I recently got a jury to return a not guilty verdict in favor of of my client, I sometimes get the follow up question:
How can you do that? You are getting criminals off.
As those are fair questions, I suppose they warrant a fair response. But first, I need to explain how a criminal proceeding works.
In our system, each person who is charged with a crime is merely accused of a committing a crime. We have all heard of the presumption of innocence. What that means is that the sole purpose of initiating criminal proceedings against a person is to see if the State (or whatever unit of government is handling the prosecution) can produce enough evidence to convice a fact finder (judge or jury) that each element of the charged offense(s), offenses of proved beyond a reasonable doubt. Strictly speaking, whether the person actually committed the crime is not the issue, but rather the sufficiency of the evidence. It is not the burden of the accused to provde innocence, but on the State to prove guilt.
In many instances, an innocence person couldn't prove his innocence anyway. How do you prove you didn't steal something from a retail store? Because nobody found it on you? So what, the state can say, you may have thrown it out your car window on the way home. After all, some one says they she saw you take it and the store says they never found the item. If you did steal it, shouldn't they have more proof than some one claiming to see something. Anyone can claim to see anyone else doing anything. That is why the burden is on those making the accusations.
The State can come at a person with such awesome resources. The average person can't possibly pay attorneys enough to win a war of attrition with the government. For that reason, our Founding Fathers laid out protections in our Constitution to even the playing field. That is why we are protected from unlawful searches and seizures, the right to not self-incriminate, to confront our accusers, to a trial by a jury of our peers, and the protection from torture and other cruel and unusual punishments that have been historically used to induce confessions.
These protections are available to everyone accused of a crime, whether he is guilty or not. These are particulary important to a person who is in fact innocent or who knows that the State does not have enough evidence or that is obtained what evidence it does have unlawfully. They give a person a fighting chance. Justice is done with the state can prove its case, not when it can get a conviction. Our Founding Fathers, like most well educated people, understand that it is far better for a free society to let the occassional guilty man go free than for a single innocent person be convicted.
Ryan Maesen, Criminal Lawyer, Grand Rapids, MI
Ryan Maesen PLC www.maesenlawfirm.com
Wednesday, January 16, 2013
Consequences of a Criminal Conviction
The
penalty for a criminal conviction does not end at sentencing. While most people
are relieved to be done with their case; even if they are unhappy with the
result, they often do not understand that their conviction may cause numerous
problems for them down the road.
This article is meant to highlight some of those possible consequences. It is not intended to be a detailed discussion of these issues, but should at least make people aware of how a criminal conviction can have a lasting impact. Hopefully, it will make some people think twice about just "pleaing out" and opt to put up a more vigorous defense regardless of guilt or innocence.
Career Consequences - Generally only for a Felony Conviction
It would be impossible to state all the possible careers that could be jeopardized by a criminal conviction, some common ones include: firefighter, law enforcmeent, most government employment, working in a school (or even volunteering), certain types of truck drivers, and working in the airline field. It can also prevent or create obstacles in obtaining a nursing license, a license or practice law and other professional licenses. A misdemeanor involving dishonesty (think theft or fraud) can prevent a person from working the banking, insurance, securities or accounting fields.
Immigration
Any criminal conviction can affect citizenship status of a non US citizen. Certain felonies make deportation and option. As this area is complex and keeps changing, it is beyond the scope of this article to go any further on this subject.
Possession of a Firearm
Depending on the nature of the charge, a felony conviction can prevent a person from possessing a firearm for either three or five years from the time of sentencing or releae from a jail or prison. (See MCL 750.224f) In Michigan, a person can get a hunting license with a criminal conviction.
Public Housing
A conviction of ANYONE who committed a crime in a public housing tenant's apartment, will result in the loss of public housing benefits. This can lead to some very unfair outcomes when the person is just a visiting relative who gets caught with a joint, but this does happen.
Driver's License Revocation
A person can have his driver's license revoked or suspended for a conviction of certain crimes. These crimes primarily deal with drug and alcohol offenses but can also occur in other situations such as not paying child support.
Sex Offender's Registry
A conviction of any number of criminal sexual misconduct charges can result in having to register with the State of Michigan pursuant to the Sex Offenders Registration Act (SORA). In addition, a person required to register under this act must meet strict guidelines in keeping the state informed of moving, changes in employment and registrants are forbidden from being within 1,000 feet of a school (with some exceptions). These are the primary issues with being a convicted sex offender; there are other ones beyond the scope of this article.
Ryan Maesen, Criminal Lawyer, Grand Rapids, MI
For more information, please visit me at www.maesenlawfirm.com
This article is meant to highlight some of those possible consequences. It is not intended to be a detailed discussion of these issues, but should at least make people aware of how a criminal conviction can have a lasting impact. Hopefully, it will make some people think twice about just "pleaing out" and opt to put up a more vigorous defense regardless of guilt or innocence.
Career Consequences - Generally only for a Felony Conviction
It would be impossible to state all the possible careers that could be jeopardized by a criminal conviction, some common ones include: firefighter, law enforcmeent, most government employment, working in a school (or even volunteering), certain types of truck drivers, and working in the airline field. It can also prevent or create obstacles in obtaining a nursing license, a license or practice law and other professional licenses. A misdemeanor involving dishonesty (think theft or fraud) can prevent a person from working the banking, insurance, securities or accounting fields.
Immigration
Any criminal conviction can affect citizenship status of a non US citizen. Certain felonies make deportation and option. As this area is complex and keeps changing, it is beyond the scope of this article to go any further on this subject.
Possession of a Firearm
Depending on the nature of the charge, a felony conviction can prevent a person from possessing a firearm for either three or five years from the time of sentencing or releae from a jail or prison. (See MCL 750.224f) In Michigan, a person can get a hunting license with a criminal conviction.
Public Housing
A conviction of ANYONE who committed a crime in a public housing tenant's apartment, will result in the loss of public housing benefits. This can lead to some very unfair outcomes when the person is just a visiting relative who gets caught with a joint, but this does happen.
Driver's License Revocation
A person can have his driver's license revoked or suspended for a conviction of certain crimes. These crimes primarily deal with drug and alcohol offenses but can also occur in other situations such as not paying child support.
Sex Offender's Registry
A conviction of any number of criminal sexual misconduct charges can result in having to register with the State of Michigan pursuant to the Sex Offenders Registration Act (SORA). In addition, a person required to register under this act must meet strict guidelines in keeping the state informed of moving, changes in employment and registrants are forbidden from being within 1,000 feet of a school (with some exceptions). These are the primary issues with being a convicted sex offender; there are other ones beyond the scope of this article.
Ryan Maesen, Criminal Lawyer, Grand Rapids, MI
For more information, please visit me at www.maesenlawfirm.com
Michigan Felony Procedure
Here is the basic Felony Procedure in Michigan. This will vary somewhat from county to county.
A felony is any charge that carries a maximum penalty of over 1 year in jail. Most felonies start with a minimum maximum penalty of 2 years.
Step One: District Court Arraignment. At this stage, a District Court judge will read the accused the charges including the maximum penalty. At this point, most people simply plead not guilty for the same reason cited in the previous article on misdemeanor procedure. At this time, the judge will also determine is the accused is to remain in custody (jail) or if a bond may be posted for her release.
Step Two: Preliminary Examination. This a like a mini trial at which the prosecution can (and will) call witnesses to testify on the State's behalf. The purpose of this hearing is to see if 1) there is probable cause that a crime was committed and 2) if the accused commited it. It does not mean that an accused person actually did it or that a jury will later agree. The burden of proof at this stage is "probable cause" not "beyond a reasonable doubt." In truth, judges virtually always find probable cause at this hearing. Most of the time, the defendant and his attorney decide to waive this hearing to save the time and trouble. Some prosecutor's will make a plea offer at this point if the defendant agrees to waive the preliminary examination. This offer will be held open until the next court date even if the defendant does not wish to accept the offer at that time. Some counties hold a "pre-preliminary exam" before the actually exam. At this hearing, your attorney and the prosecutor meet to discuss the case and decide of there is a need to run the preliminary exam.
Step Three: Circuit Court Arraignment. The District Court, where the first arraignment was held, only has limited jurisdiction in criminal matters. It can not hear proceedings related to felony charges other than an arraignment or preliminary exam. For that reason, the accused must now be arraigned at the Circuit Court level. This does not mean that the charges are different. It is just a formality. In practice, this arraignemnt is usually waived at the same of the preliminary examination is waived.
Step Four: Pre-Trial/Status Conference. Like a misdemeanor pre-trial, the prosecutor meets with the defense lawyer to discuss the case including the possibility of a plea bagain. In some counties, the pre-trial in a felony case is called a Status Conference. And while some counties have two pre-trials, many have just one. Most of the time, if a plea bargain will be entered, it must be at this time, though judges often make exceptions and let a defendant plea on the day of trial. It is a risky strategy to assume you will get one more chance though. If you are going to plea, this is the time.
Step Five: Jury Pick/Trial. Unlike a misdemanor charge where a jury is picked several weeks ahead of time, a felony jury is picked that morning to hear a case that afternoon. There are 12 jurors for a felony plus one or two alternates. A trial proceeds much like a misdemeanor trial, though there are often more witnesses.
Step Six: Verdict. If the jury says "not guilty," the case ends and the defendant goes home (much relieved). If the jury says "guilty" a sentencing date will be set. If the defendant has been in custody awaiting trial, he will remain there. If he is out on bond, the bond will continue.
Step Seven: Post Trial Motions/Appeals. There are a number of different motions that can be filed. They are beyond the scope of this article. Keep in mind, that most appeals lose. There are no free do overs.
Step Eight: Sentencing. Felony sentencing is Michigna is governed by the Sentencing Guidelines. This fairly complex statute scores a number of "variable" in computing the mandatory minimum and maximum sentence. The most important factor is the defendant's prior record. Each previous conviction may contain a number of variables that can quickly add up to alot of time. On the other hand, a first offender or a person with just one or two prior misdemeanor convictions can get very little. I recently had a client who plea guilty to a charge that carried a maximum penalty of 5 years. But, through careful negogiating and decent sentencing guidelines, he not no jail at all. It all depends on each individual person.
Ryan Maesen, Criminal Lawyer, Grand Rapids, MI
Visit me at www.maesenlawfirm.com for more information
Monday, January 14, 2013
What do do if arrested
There is no one right way to respond when arrested, but there are certain things that will assist your defense at a later time.
1. Don't make any statements to the police. You don't need to admit anything. Despite what the police say, talking is not going to help you. Why help them make their case.
2. Do not discuss your case with anyone other than an attorney. You don't need friends called as witnesses against you. This includes not posting things on Facebook and places like that. If there is anything incriminating on there, take it off right away.
3. Don't plead guilty at your arraigment. You can always plead guilty later. At that point, you don't ever know how strong the case against you is. Even if you are in fact guilty, that doesn't mean there is enough admissible evidence to convict you.
4. As hard as it is, face your case aggressively and as quickly as possible. Proscrastinating is not going to help you.
5. Understand you have constitutional rights designed to make sure you are not wrongly convicted. While these rules are perfect nor always followed properly, the State is responsible for proving your guilt, you are not responsible for trying to clear your name.
Ryan Maesen, Criminal Lawyer, Grand Rapids, MI
Please see more at www.measenlawfirm.com
1. Don't make any statements to the police. You don't need to admit anything. Despite what the police say, talking is not going to help you. Why help them make their case.
2. Do not discuss your case with anyone other than an attorney. You don't need friends called as witnesses against you. This includes not posting things on Facebook and places like that. If there is anything incriminating on there, take it off right away.
3. Don't plead guilty at your arraigment. You can always plead guilty later. At that point, you don't ever know how strong the case against you is. Even if you are in fact guilty, that doesn't mean there is enough admissible evidence to convict you.
4. As hard as it is, face your case aggressively and as quickly as possible. Proscrastinating is not going to help you.
5. Understand you have constitutional rights designed to make sure you are not wrongly convicted. While these rules are perfect nor always followed properly, the State is responsible for proving your guilt, you are not responsible for trying to clear your name.
Ryan Maesen, Criminal Lawyer, Grand Rapids, MI
Please see more at www.measenlawfirm.com
Thursday, January 10, 2013
Child Custody Determination
Child custody is determined by the Circuit Court (Family Division) in accordance with the Child Custody Act of 1970 (MCL 722.21). The act requires that the judge make he determination regarding custody "in the best interests of the child." The statute defines the "best interets of the child" as the sum of the 12 factors listed in MCL 722.23. The judge is required to hold a hearing and state on the record the facts and reasoning he or she is applying to each of the applicable factors. It is not as simple as deciding how many factors favor one parent or the other. The totality of the circumstances are looked at carefully. "Winning" on 8 of the 12 factors is not necessarily going to get some one custody.
If a parent seeks to modify or change custody or parenting time at a later date, the statute allows the court to change its previous orders for "proper cause or a change of circumstances." Of course, the change must still be in the child's best interests.
However, before a court can look into whether there is proper cause or a change in circumstances, it must first determined whether or not there is an "established custodial environment." An established custodial environment is "established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort." (MCL 722.27). If such an environment exists, the parent seeking to change or modify custody must show by "clear and convincing evidence" that the change is in the best interests of the child. If no established custodial environment exists, then the burden of proof is only "a preponderence of the evidence." The clear and convincing standard is much harder to show and demonstrates the State's unwillingness to bounce children around with a good reason.
Keep in mind that courts tend to favor joint custody and may reccomend this. Also, if one party pushes hard for this, the other party needs to be prepared to prove that sole custody with him or her is in the child's best interest.
Also, it is important to remember that it is more persuasive to a judge to show why one person is a good fit for the children. It is not an effective strategy to simply say that the other parent is a bad person or unfit somehow. That is certainly relevant, but dont make the choice between the lesser of two evils.
For more information or assistance, please visit www.maesenlawfirm.com
If a parent seeks to modify or change custody or parenting time at a later date, the statute allows the court to change its previous orders for "proper cause or a change of circumstances." Of course, the change must still be in the child's best interests.
However, before a court can look into whether there is proper cause or a change in circumstances, it must first determined whether or not there is an "established custodial environment." An established custodial environment is "established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort." (MCL 722.27). If such an environment exists, the parent seeking to change or modify custody must show by "clear and convincing evidence" that the change is in the best interests of the child. If no established custodial environment exists, then the burden of proof is only "a preponderence of the evidence." The clear and convincing standard is much harder to show and demonstrates the State's unwillingness to bounce children around with a good reason.
Keep in mind that courts tend to favor joint custody and may reccomend this. Also, if one party pushes hard for this, the other party needs to be prepared to prove that sole custody with him or her is in the child's best interest.
Also, it is important to remember that it is more persuasive to a judge to show why one person is a good fit for the children. It is not an effective strategy to simply say that the other parent is a bad person or unfit somehow. That is certainly relevant, but dont make the choice between the lesser of two evils.
For more information or assistance, please visit www.maesenlawfirm.com
Thursday, January 3, 2013
Proving guilt beyond a reasonable doubt
To convict some one of a crime, the state has the burdend of proving guilt "beyond a reasonable doubt." More specifically, each element of the charged offense or offenses must be proved beyond a reasonable doubt.
Reasonable doubt does not mean beyond all doubt but rather is means " a fair, honest doubt growing out of the evidence or lack of evidence. It is not merely an imaginary or possible doubt, but a doubt based on reason and common sense. A reasonable doubt is just that—a doubt that is reasonable, after a careful and considered examination of the facts and circumstances of this case."
An element is a subpart of a crime. Each crime requires proof of several things in order for a person to be guilty. For example, to prove larceny in a building, a prosecutor must introduce evidence beyond a reasonable doubt for the following 7 elements:
Larceny in a Building
Ryan Maesen, Criminal Lawyer, Grand Rapids, MI
Reasonable doubt does not mean beyond all doubt but rather is means " a fair, honest doubt growing out of the evidence or lack of evidence. It is not merely an imaginary or possible doubt, but a doubt based on reason and common sense. A reasonable doubt is just that—a doubt that is reasonable, after a careful and considered examination of the facts and circumstances of this case."
An element is a subpart of a crime. Each crime requires proof of several things in order for a person to be guilty. For example, to prove larceny in a building, a prosecutor must introduce evidence beyond a reasonable doubt for the following 7 elements:
Larceny in a Building
(1) The defendant is charged with the crime of larceny in a building. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant, took someone else’s property.
(3) Second, that the property was taken without consent.
(4) Third, that the property was taken in a [state type of building] 1.
(5) Fourth, that there was some movement of the property. [It does not matter whether the defendant actually kept the property or whether the property was taken off the premises] .
(6) Fifth, that the property was worth something at the time it was taken.
(7) Sixth, that at the time the property was taken, the defendant intended to permanently deprive the owner of the property.2
Elements 5 and 7 are the most difficult for the prosecution to prove and for the defense to dispute. Element 7 is almost always shown by circumstancial evidence. Rarely will a person admit to stealing something. Element 5 is much too generous to the prosecution. A person could try on a coat and then put it down and that could constitute movement. It is very weak. I think a person should at least have to attempt to take the property off the premises to be charged.
One important thing a criminal defense lawyer does is makes sure the jury understands that there will always be some evidence. But some evidence is not enough. I own a copy of the Koran. That is some evidence that I may be Muslim but certainly not enough to say I am Muslim beyond a reasonable doubt. (I am Catholic FYI).
Recently I had a case where a department store thought my client was shoplifting. Even though he purchased alot of merchandise, the loss prevention department stopped him after he had left to store to search him. He was fully cooperative and the search found nothing stolen, only the stuff he bought. He was released. However, a few days later, he received a letter from the Walker police saying they were charging him with shoplifting because a camera caught him allegedly taking something. Naturally, after a month of asking for this tape, I have yet to receive a copy of it.
The state would have a tough time convicting him at trial, but there is enough there for charges to be filed.
Ryan Maesen, Criminal Lawyer, Grand Rapids, MI
For more information, please see my website at www.maesenlawfirm.com
Wednesday, January 2, 2013
Why people go to jail
Very few people charged with a crime actually go to jail. This is particulary true with first time offenders and repeat offenders who repeatedly committ minor crimes. However, any criminal conviction in Michigan (with some rare exceptions) can result in jailtime so it should never be assumed that you won't go to jail. It is ultimately up to the judge. Not the prosecutor and certainly not the police, no matter what they say.
Some of the factors that can deterime if jail is given, and if so, how long include:
Ryan Maesen
Some of the factors that can deterime if jail is given, and if so, how long include:
- prior criminal convictions
- repeatedly getting caught doing the same thing
- drug offenses sometimes result in more jail time
- any risk of violence to the community
- attitude through the course of proceedings
- arguing with the judge
- lying to the judge
- evidence of a productive life outside of court (think a job, volunteer work, strong family to go home to, active in church, getting drug or alcohol counseling etc.)
- In felony cases, sentencing is determined by the Michigan Sentencing Guidelines, a fairly complex piece of legislation that gives "points" for things like if the crime involved drugs, weapons, and violence. It is also heavily punishes a defendant for past felony convictions.
Ryan Maesen
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