Friday, September 06, 2019

One Way To Resolve A Self-Defense Incident - With A Plea Bargain

So you're innocent and accused of a crime. Say in this case felonious assault after you drew your firearm to protect yourself.

Felonious assault in Michigan is, as the name suggests, a felony with a penalty of up to 4 years in the clink if you're found guilty, plus restitution, plus an additional sentence for use of a firearm in the commission of a felony.

In short, it's not a pleasant prospect to be facing.

As described previously, I was retained and helped my client get bailed out. On to the next steps.

First, there's the probable cause conference where you meet with the prosecutor and discuss things with them and the court. I have a nice discussion with the prosecutor in this case, explain my client's version of things and that we have an additional witness to back up the story. She notes the other party also has a witness to back their side of events. Very civil chat and it ends with her offering my client to plead to attempted felonious assault, which is a 2-year high misdemeanor.

This is obviously better than a 4 year felony but he's still looking at jail time and BATF would consider that disqualification from owning firearms as the sentence potential is over 1 year. Not a great offer at all, and my client understandably doesn't want to accept that so we fight on.

Next comes the preliminary exam.

The preliminary exam is where the prosecutor must prove: 1. A crime was committed and 2. The defendant more than likely was the one who committed the crime. Not a high bar to get over, and darn few cases are dismissed at the preliminary exam. It is however often worth using to test the prosecutor's witnesses and see what they have and lock in their testimony. In a self defense case, there's an additional burden the prosecutor has - to show my client most likely did not act reasonably in self defense.

So we do the preliminary exam. Good news - while the "victim" is available to testify, his witness apparently has refused to appear, including disobeying a subpoena to appear for the prosecution.

The prosecutor takes the witness, the prosecutor's victim and in our side of it the aggressor, through the event including the argument between the parties that led to the altercation.

I then get to cross-examine and establish that it was the "victim" that started the argument, the "victim" had threatened other people (who weren't there) with being shot if he saw them, setting the stage for willingness on his part to threaten deadly harm.

He stated it wasn't a heated argument, unlike what my client stated occurred.

I also got him to admit that: 1. During the argument my client appeared visibly afraid during the altercation; 2. My client had asked him to leave multiple times, and he had refused; 3. That he, the "victim", (who was open carrying) had his hand near his firearm, but he claimed not on his firearm, during the argument before my client drew his firearm. My client then drew and pointed it in his general direction, telling the victim he was going to shoot him, which the "victim" happened to catch on his phone video, but he conveniently caught none of the events precipitating that. The video didn't make my client look great and he wasn't exactly using his words in a beneficial matter and wasn't quite perfect. But, the aggressor then left and my client put his gun away.

This is right when my client should have called the police, because the "victim" sure as heck did -- claiming my client pointed a gun at him without any good reason and the witness that failed to show up had backed his statements at the time, leading to the charges being pursued.

Overall, there was some pretty good and some useful testimony for our side, and some for their side. Some other evidence entered with another witness called and some testimony taken, arguments made, and we're done. At this point I've definitely done some damage to the prosecutor's narrative of the case, not to mention locked in the testimony of the prosecution witness.

In short, we've got a He Said - He Said situation with some serious differences in testimony as to what happened and whether it will amount to a reasonable act of self defense or not.

The judge then says: I'm going to take a break and decide how to rule on this matter. I'd suggest the parties talk and see if something can be worked out. If I rule that there is sufficient evidence the case goes forward up to Circuit Court, and it is a low burden for the prosecutor to meet to have this happen, but if I rule against the prosecution then it will be dismissed so you may all want to talk before I make my decision.

In short the judge just gave both sides an impetus to try and resolve it short of his making a decision. He told us to talk, and so we do. I will say the judge had a rather excellent poker face at that point.

The prosecutor and I then talk.

The prosecutor makes one heckuva offer: Misdemeanor brandishing, with a controlled conditional plea that there's no jail, no probation, and only a $100 fine and that is it. In short, aside from my client being unable to have a CPL for 8 years, it is close to the equivalent of pleading to having been caught spitting on the sidewalk.

I then explain the offer to my client.

He understands that he could continue, go to trial and win, but if he lost at trial he'd be looking at jail time and a felony record. He states his boss is also annoyed with the times he's had to take off for work for the case already, and the obvious expense and time involved in going to Circuit Court and all the stages and mandatory appearances that have to happen before trial would add to the fun he's been having from this incident.

He also understands that he can end it now with paying $100 and not having a CPL for 8 years, but not otherwise risk losing his firearms rights and his freedom.

He decides to take the deal and move on with his life.

In short, not a bad result.

While I would have liked to take it to trial and think we would have won, I'm happy to have been able to get him such a good deal. It is always the client's decision to accept or reject a deal. A fine of $100 with a minor misdemeanor on his record, and in return getting rid of a felony charge and all risk of jail, fines, with no further court appearances, and no further problems is not a bad way to resolve the matter.


MrGarabaldi said...

Hey Aaron;

You done good, I have told people many times before you talk to the popo after a firearm incident, you talk to a damm good lawyer, keeps emotionalism from putting words in your mouth and getting you railroaded. As far as "the Victim" calling the police first, as I understand it, that is usual police policy, who calls the police first gets "The Victim" status on the report and as I understand it, the Police are the finder of facts in a court case.Wish you lived here in Atlanta, I would have you on speed dial, but I understand Michigan has some plusses also.

Old NFO said...

Except for losing his CHL. Good job, sir.