Disparate Sentences for Local NBA Stars

A well-respected blog on sentencing picked-up on the infamous NBA drunk driving cases coming out of the 48th District Court in Bloomfield Hills, MI. The blog noted the difference between Jalen Rose's straight-forward OWI conviction [he did 14-days in the OCJ]; and the weapons charge component to Big Ben Wallace's OWI charge, recently resolved in the Oakland County Circuit Court before Judge Shalina Kumar.

Here is what the blog had to say about the two cases:

On the surface, it would appear that Wallace committed a (much?) worse offense but ultimately got a (much?) lighter sentence than Rose.  Of course, maybe there are some specific differences in the cases not obvious on the surface that justify this seeming disparity.  And, perhaps more importantly, the mere fact that can be (and often is) a lot of "low-level" sentencing disparity in this arena does not, in an of itself, necessarily establish that the applicable sentencing law is either unjust or ineffective.

Reading this blog post and being a local criminal defense attorney, I could not resist posting the following comment:

Great blog, DAB. This comment is from a criminal defense attorney in Oakland County, MI, where this Ben Wallace and Jalen Rose stuff went down. First, it is a suburb of Detroit; not in the "D", as we say. Also, Bloomfield Hills, where the district court is seated for that area, is a posh tony burb. (i.e. there are NBA stars driving around partying).

This comment seeks to shed some light on the "disparity" in the sentencing for the two NBA stars. Rose had the misfortune of driving drunk within the jurisdiction of the 48th District Court and to have his case randomly assigned to Judge Kim Small. Judge Small has made national headlines over the years for her drunk driving sentences; they often involve some jail time, even for first offenders with no criminal history. Currently, a group of high-end defense lawyers have challenged Judge Small, seeking to have her disqualified from all drunk driving cases on the basis that she is not fair or impartial, and that her "one-size-fits-all" sentencing policy (i.e. jail for all offenders), violates the "individualized sentencing" mandated by Michigan statute.
This is why Jalen Rose went to jail last summer. 

In the case of Ben Wallace, the big fella was OWI while packing some loaded cold steel in his Cadillac, upping his game to the felony level, and thereby "just passing through" the 48th District Court. Fortunately for him, although he too was randomly assigned to Judge Small, his attorneys executed a "fast break", waiving the preliminary exam, and binding Wallace over to the trial court. Once there, probation was available all day long. Good bye Judge Small; hello Judge Shalina Kumar. 

Unlike Rose, however, Wallace will have a felony weapons conviction on his record. Last year, Wallace spoke of going to law school. This probably puts the kabosh on that notion.
Here is a link to our local blawg coverage of Big Ben.

Sometimes an accused's notoriety helps his cause; sometimes it hurts the case.

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Self-Defense Jury Instruction Available to Felon-in-Possession of Firearm

This post is from Royal Oak Attorney Paul Stablein's "Michigan Supreme Court Blog". 


Last Friday, the Supreme Court rendered another opinion dealing with a criminal case in People v Roberto Dupree. The question presented was whether a defendant may assert the defense of self-defense when charged with being a felon in possession of a firearm contrary to MCL 750.224f. The answer, at least in regard to Dupree’s facts, is, “Yes.” The Court granted Dupree a new trial, finding that Wayne County Circuit Judge Brian Sullivan erred when he gave, sua sponte, a jury instruction which he called “the necessity defense to being a felon-in-possession.”

Justice Maura Corrigan wrote the opinion for the majority, consisting of Justices Weaver, Young, Markman, Hathaway and her, affirming the Court of Appeals published decision. (Judge Murray dissented).  Justices Cavanagh and Kelly concurred in the result but wrote separately concerning the additional defense of duress which the defendant raised separately. Kevin Ernst represented Dupree on appeal.

The defendant’s version of the events differed significantly from the prosecution’s, but did create a plausible self-defense argument. Dupree was at a party and observed the complainant, Reeves, shove a female relative off of the porch. Dupree interceded and told Reeves not to disrespect his sister-in-law. Reeves shoved Dupree and the two fell off the porch wrestling. During the struggle, Reeves shirt came up and Dupree saw a gun in Reeves’ waistband. Dupree was in fear for his life because Reeves was bigger, drunk and armed, and, when Reeves went for the gun, Dupree grabbed it. As the two struggled over the gun, Dupree shot Reeves three (3) times. Dupree kept the gun, left the premises and threw the gun out of his car window when he was a sufficient distance from the house. Dupree was charged with Assault with Intent to Murder, Felonious Assault, Felon in Possession of a Firearm and Felony Firearm. The jury found him not guilty on everything except being a felon in possession of a firearm.

The verdict, the Court found, was necessarily correct in light of the trial court’s erroneous jury instruction which included the following element: “And third, that it was the defendant’s intention to deliver the gun to the police at the earliest possible time. The law imposes that duty as a concomitant part of that.” Michigan’s jurisprudence carries with it no such requirement, and the Court found that the error was not harmless.

Because the Court had granted leave to address whether, if at all, self-defense is available to a defendant in a felon-in-possession case, a majority of the opinion is devoted to answering that question. Because the defense is “embedded in our criminal jurisprudence” it is available as a defense to this charge even though the charge of felon in possession of a firearm was statutorily created and not part of the common law. “Legislative bodies enact criminal statutes against a background of Anglo-Saxon common law.” Unless the Legislature affirmatively abrogated the defense for a felon-in-possession charge, the Court concluded the defense is available. Of course, that means that, once the defendant proffers a prima facie case of self defense, it then becomes the prosecution’s burden to prove beyond a reasonable doubt the defendant did not act in self-defense. The Court affirmed the Court of Appeals’ decision to remand the case to Wayne County for a new trial on the felon-in-possession charge.  Time will tell whther the prosecution will actually go forward in light of the Court's ruling.

Two Day Jury Trial in Oakland Circuit Results in Not Guilty Verdict

On Monday and Tuesday of this week, I was in a jury trial in Oakland County Circuit Court before Judge John McDonald. I think he's a great judge, mostly because I've never lost a trial in his courtroom. This trial made four straight.

The odds, as usual, were stacked against acquittal. The principal charge was assault with intent to do great bodily harm (less than murder), with a second count: commission of a felony with a firearm; a charge that carries a mandatory two-year minimum prison sentence upon conviction.

My client was a woman with no criminal record. The alleged victim, however, had done 15-years in prison for armed robbery. After an evening of drinking and socializing, the two (in an on-again off-again relationship) retreated to my client's home. An argument boiled over and two shots were fired from a revolver. One shot hit the victim in the foot.

At trial, my client took the stand and testified she shot the weapon toward the "victim" in self defense. The jury believed her, and she avoided the two-year mandatory prison sentence.

One of the keys to the acquittal was an effective cross-examination of the so-called victim. He was made to look foolish, and like a bully, admitting to contact with my client.

The case illustrates how the plea policy of the Oakland County Prosecutor's office can sometimes be quite flawed. In this case, the client was most concerned about doing two years in prison. She could appreciate the seriousness of the gun shots, and the significant injury one of the bullets did to her former boyfriend. While willing to do some jail time on an assault guilty plea, she was not about to sign-up for two years. But that's exactly what the prosecutor wanted her to do; no plea offer to drop the felony firearm charge.

So we rolled the bones and went to trial. In this case, it was well worth the effort. This client was well served as she saved two years of her life.

If you or a loved one face serious felony charges, contact our firm in order to assess your options. We will advance your interests in dealing with the prosecutor and, if necessary, take the matter to trial.

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