By: Neil Leithauser, Associate Editor
State Appellate Defender Office and Criminal Defense Resource Center
Please tell us something about your background, where you practice, and how long you have been a criminal defense lawyer.
In law school, I clerked for Judge David F. Breck in the Oakland County Circuit Court. Through that experience, I knew I wanted to be a litigator, specifically helping and defending people. Arguing legal issues to judges and factual stories to juries seemed absolutely fascinating. I graduated and passed the bar in 1998 and have practiced only criminal defense in Metro Detroit and Michigan in state and federal courts ever since.
Because DUI cases are so abundant in our society, I took on a lot of those cases and very quickly realized in order to represent my clients well it was necessary to receive training in two important areas that law school does not teach: forensic science and how to win jury trials. With those two goals in mind I attended and accomplished the two most rewarding professional endeavors of my career. In 2011, I graduated from the Gerry Spence Trial Lawyer’s College, and in 2014, I became Michigan’s first, and presently only, American Chemical Society’s certified Forensic Lawyer-Scientist.
Please tell about one of your interesting or unusual cases. What were the theories of the parties?
I tried a DUI case when the client had an Orajel (alcohol) soaked cotton swab in their mouth at the time of the breath test. The officer did not bother to remove it thinking that it would not affect a breath alcohol test. The prosecution believed that to be the case as well. The client was found not guilty.
A woman driving home from work was encountered by an intoxicated man walking on a busy freeway. Through no fault of her own she struck and killed that pedestrian. Because a fatality was involved, the MSP requested consent for a blood test and my client agreed, knowing that she had not consumed any drugs or alcohol that day. The MSP chemical test identified active THC in her blood measured at 8 nanograms per milliliter (8 ng/ml). She was not a registered medical marijuana patient at the time of the accident but had been one prior. Her medical marijuana patient card had expired. We successfully argued a medical marijuana section 8 defense, which allowed us to use the Michigan Medical Marijuana Act defense at trial and required the prosecution to prove intoxication. The People were not able to do so, and the client was rightfully found not guilty of operating while intoxicated causing death. During litigation of the case, she had submitted to, and passed, a polygraph test where the question was whether she consumed any marijuana 24 hours before the accident. She had not, which goes to prove that active THC can remain in a person’s blood for an extended period of time despite abstinence, which is contrary to people’s general understanding, but there are scientific studies to support it.
Were experts required?
I believe utilizing experts is the key to success in the successful practice of any field of law. They allow a litigator to be creative with defense theories and, at the same time, provide a practical education to the lawyer that can be built upon in subsequent cases. My expert in this case had previously performed experiments to demonstrate how mouth alcohol (alcohol originating from the oral cavity and not the lungs) would adversely affect the test. The expert’s testimony was persuasive, and the client was exonerated. An expert was not necessary for the THC death case.
What trends have you noticed in Michigan criminal law?
Michigan’s criminal law is shaped by two groups of people, innovative and hard-working litigators and the appellate bench both in Michigan and the Sixth Circuit. I have seen how really smart and aggressive lawyers argue unique theories to these appellate courts, which shapes our criminal jurisprudence in ways that protect our individual constitutional protections. I have also seen how conservative courts interpret factual scenarios to curtail those same protections. For instance, new medical marijuana laws are helping more people avoid being wrongfully arrested and imprisoned for simple possession cases. On the other hand, courts recently seem to be very conservative on applications regarding search and seizure. The most promising trend is the marijuana movement because too many people, especially minorities, are being arrested and jailed for being in possession of a plant which is far less dangerous to public health than alcohol.
How could our criminal justice system be improved?
Our state system of criminal justice works really well, except when court appointed attorneys are not paid what they are worth. Unfortunately, most people accused of a crime cannot afford their own attorney. Indigent defense lawyers need to be better compensated to motivate defenders to perform the work necessary to effectuate justice.
Do you have any advice for lawyers new to the practice of criminal law?
My best advice is to specialize in one area of law and do whatever is necessary to perform in that area the best you can. Once you master that area, move on to another. Also, take pride that criminal defense lawyers have the privilege to represent people in some of the most important situations in their lives. If we do a great job, we can really make a difference in their lives and in our society. Without great criminal defense lawyers, the other side will get away with whatever they want, and as a consequence, we all suffer.