Articles Posted in Criminal Defense

“The Clayton Motion” is a criminal motion to dismiss an indictment in the interest of justice.  The action has garnered national recognition since it’s mention in the hit television series “For Life.”  Aside from its popularity in pop culture, motion is a powerful technique that has played a role in preserving justice in the New York criminal justice system and now has a chance to impact the Michigan criminal justice system with the encouragement of forwarding thinking prosecutors.

According to New York’s Criminal Procedural Law Section 201.40, An indictment or any count thereof may be dismissed in furtherance of justice, as provided in paragraph (i) of subdivision one of section 210.20, when, even though there may be no basis for dismissal as a matter of law upon any ground specified in paragraphs (a) through (h) of said subdivision one of section 210.20, such discharge is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance demonstrating that conviction or prosecution of the defendant upon such indictment or count would constitute or result in injustice. In determining whether such compelling factor, consideration, or circumstance exists, the court must, to the extent applicable, examine and consider, individually and collectively with the characteristics listed within the statute. To discuss these factors, we spoke to several Michigan attorneys to gain their insight.

Matthew McManus is the Managing Member of McManus and Amadeo in Ann Arbor, Michigan, and is known as one of the top business attorneys in our state but has ties to New York.  McManus stated, “Growing up in Brooklyn, the Clayton Motion was something that we regularly discussed. The first factor the courts look at is “the seriousness and circumstances of the offense,” and that could place a barrier immediately to a successful motion. We need to remember that the presumption of innocence is in effect at all times, and just because a prosecutor issued a charge that may be deemed severe, the court needs to look beyond the information in the complaint objectively.”

What if I told you that a bag of peanut M & Ms was what led to a false confession? Would you believe me?  And wouldyou believe that the reason an individual made such a confession was because they wanted the M & Ms so bad they told the police what they wanted to hear?  Today, we are going to discuss the topic of the confession and what can lead to one making an admission to something that they did not do.  

The story starts with a young man that was questioned by the Michigan State Police. The young man was a suspect of a crime.  He went into the police station and took a police polygraph.  He was never read his Miranda Warnings and was at the station for 7 hours.  The young man had mental health issues and all he wanted to do was leave the station.  He was tired and he was hungry.  The officer asked if the young man liked some candy.  He responded that he would love some peanut M & Ms.  The officer said he could have the M & Ms if he would just tell the police a few things.  From there the camera accidentallywent off but luckily for the prosecution, a written statement was present.  The young man got his M & Ms and also got life in prison for a murder that DNA proved was not his.  We hear horror stories of the West Memphis Three, The Central Park Five and Brendan Dassey. While all of these cases are tragedies, there are so many other that tragically fall under the radar.  To combat this issue, the qualified criminal defense lawyer needs to bring in a false confession expert.  Today, we spoke to several of the top lawyers in the state of Michigan to discuss the 6-step process of how you should make your argument at the Daubert Hearing for the False Confession Expert.

Step I:  The Introduction.  This is when you lay the foundation for who your false confession expert is. This will generally be 5 to 7 questions that will connect the expert with your judge.  Matthew McManus is the Managing Member of McManus and Amadeo in Washtenaw County, Michigan and is known as one of the top brief writers in the state of Michigan.  When asked about the introduction, McMauns stated, Its like the first quarter of a football game. You want to start strong.  You do not need to go too long but you need to set the tone.  Short and Sweet after you provided the CV for your expert and you start off on the right foot.

While Michigan abolished the death penalty in the state constitution in 1964, the term “Capital Case” now has a new meaning in our state, and this is life in prison. While many advocates, including those of the ACLU (www.aclu.org), stand against the death penalty, many feel that a life sentence in the Michigan Department of Corrections (www.Michigan.gov) is a penalty far worse than death. For those charged with a capital case, choosing the attorney to fight for their freedom becomes the most pivotal of decisions. Today, we spoke to several of the top lawyers in the State of Michigan to discuss how to combat a capital case.

Matthew McManus is the Managing Member of McManus and Amadeo (www.mcmanusamadeo.com) in Ann Arbor, Michigan, and his firm has over 100 capital cases currently in litigation. McManus spoke on the subject when he said, “The capital case is a concept where the stakes could not be higher. We often get a private polygraph done with retired Michigan State Police Officer Andrew Longuski (www.propolygraphllc.com) to see if the defendant can pass a test. If you can pass a Longuski test, we then ask for a police test. Sadly, many prosecutors on a case such as this do not care about polygraph results, but the test certainly has value in other aspects of litigation.”

Jennifer Kelley is a Senior Associate for McManus and Amadeo and one of the top family law attorneys in Michigan. Kelley stated, “When we have this type of case, we often research the surroundings of the defendant. If the alleged victim is a family member or a former relationship product, we find out if there is a motive. In many of these cases, there is limited or no physical evidence, and the prosecutor is simply taking the word of someone.”

The polygraph is an issue that has been at the center of a great deal of controversy in Michigan.  The polygraph, also known as the “lie detector test,” is a way for law enforcement to gauge whether or not a criminal defendant is telling the truth. The test has been compelling in rape (CSC) cases, and the Michigan Legislature has taken notice with a statute giving the defendant a statutory right to take the test.  MCL 776.21 (5) allows a criminal defendant to have a statutory right to have a polygraph when charged with a CSC. What many fail to realize is that MCL 776.21 (2) explains that a law enforcement officer cannot offer a polygraph to the alleged victim.  We are faced with the question of whether our legislature is looking to preserve the rights of the defendant or if they seek to extend confessions in prosecutions. To discuss this matter more, we turned to several of the top lawyers in the state of Michigan for insight into the issue.

Matthew McManus is the Managing Member of McManus and Amadeo in Ann Arbor, Michigan, and one of the state’s top business attorneys. While the polygraph is a concept born in the criminal law sector, McManus has become a pioneer in advocating for the polygraph in other fields.  McManus stated, “The point of the polygraph is to get to the truth of the matter. In any form of litigation, we are supposed to be telling a story based upon the truth. We find in business settings; this can be helpful. Still, in heated discussions, we need to remember that criminal prosecution can arise at any time, so you need a strong private test to proceed as the risk is lessened.”

Jennifer Kelley is a Senior Associate for McManus and Amadeo. She is known as one of the top divorce lawyers across Michigan. Kelley provided commentary when she said, “We have utilized polygraphs in divorce matters of late. An interesting way to gauge the truth is to see if both parties are willing to engage in a polygraph. When one party is, and the other is not, that can tip the scales, but like Matt (McManus) stated, we need to gauge criminal consequences before enlisting the test. Bill (Amadeo) has always been a big proponent of the polygraph in that area.”

Many times in the field of criminal law there are questions that need to be answered. We have received emails and texts on certain issue which will help people navigate the criminal justice system.  We will provide insight on issues below:

Question I: My son is being investigated for a CSC in Washtenaw County. The Michigan State Police have asked my son to take a polygraph. Should I allow my son to take the test? My son is 16 and has learning disabilities.

Answer:  Washtenaw is in a transition right now. The Brian Mackie regime is close to an end and either Eli Savit or Arianne Slay should take the office in another direction. With that said, under the current administration most people are getting charged with a CSC based on a mere allegation.  There are two prosecutors in that office that are abusing bonds and overcharging. When a young person gets charged it is always a difficult situation for the family but I much rather deal with the charge and fight from there as opposed to submitting a child with disabilities to a police polygraph. You do not have the right to counsel at the polygraph. There is a lot more that goes into this situation but that will provide some insight.

An issue that has been making national news during COVID-19 is the value of the polygraph.  A polygraph exam is known as a “lie detector test.” It is a tool utilized by prosecutors and police officers to find out the truth.  While many view the polygraph exam as a ticket to their freedom, many pitfalls come with the test. To learn more about the polygraph exam, we spoke to several of the top lawyers in Michigan to gain their insight on the issue.

Matthew McManus and is the Managing Member of McManus and Amadeo in Washtenaw County, Michigan. McManus is known as one of the top criminal motion writers and business attorneys in Michigan. When asked about the polygraph, McManus stated, “There are many risks associated with the test. For example, we had a client who suffered from fetal alcohol syndrome. His mental deficiencies did not allow him to comprehend the questions on the test.  It is well established that a defendant’s competency is also at risk, along with their credibility when they take the test.  This causes concern with young people and that with disabilities.”

Jennifer Kelley is a Senior Associate for McManus and Amadeo. She is known as one of the top divorce lawyers in our state. Kelley stated, “We use polygraphs in civil litigation, and it carries a lot more weight.  When we started using the polygraph in our divorce filings, there was a lot of confusion to opposing counsel, but I value the polygraph. Of course, there is a major difference between criminal and civil litigation. This is not a one size fits all scenario.”

The Sentence Agreement is a friend of the criminal defense lawyer.  A sentence agreement is a concept that can take the guessing out of what sentence a defendant will receive when a plea is made. The two types of sentence agreements that are used in the state of Michigan are the Killebrew and the Cobbs Agreement.

At first glance, the terms Killebrew and Cobbs sound like the names of famous baseball players (Ty Cobb and Harmon Killebrew.  The difference between the two agreements can be the difference between freedom and incarceration.  Let’s begin by discussing the less powerful of the two concepts:  The Killebrew Agreement.

The Killebrew Agreement is an agreement between the prosecutor and the defense attorney.  The plea deal will be presented to the sentencing judge after the Presentence Investigation Report (PSI) is completed.  If the judge refuses to follow the agreement, the defendant has a right to withdraw the plea and pursue a trial.

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