Category Archives: Larceny/Theft

DISMISSAL of Several Felonies at the Preliminary Exam

In the Michigan Court System we do not utilize the grand jury proceeding. Instead, legal system utilizes the “preliminary examination.” This examination is very similar to a grand jury proceeding, except that in place of the 12 jurors making the decision, there is a single judge that makes the decision. In addition, at a preliminary examination, as opposed to a grand jury proceeding, the defense is allowed to cross-examine the People’s witnesses and call witnesses of their own.

At a preliminary examination, the People have the burden of proving two things: 1) whether there is probable cause to believe a crime was committed; and 2) whether or not there is probable cause to believe that the defendant is the person that committed that crime. Generally, this is a very low standard and as long as the prosecution presents some evidence of illegal conduct, the Judge will usually bind the matter over to the circuit court. It is a very rare occurrence indeed that a case is dismissed at the preliminary examination.

However, Neil Rockind seems to have a knack for dismissals.

In January, Neil held a preliminary examination in a case wherein our client was charged with several counts of theft for allegedly stealing sets of tires from several different vehicles. However, at the preliminary examination (that was held in front of a very difficult judge) Neil was able to establish that the police had only learned about the alleged connection between our client and the thefts by breaking the law. The police, without probable cause, had been tracking our clients movements and even went so far as to pull him over while he was driving, without a shred of evidence of any illegal conduct.

The Judge agreed that the police had broken the law and, as fruit of the poisonous tree, the Judge suppressed all of the evidence that was obtained after the illegal actions by the police. Absent that evidence, there was no evidence that our client had done anything wrong. Subsequently, the Judge dismissed the case at the preliminary examination upon a finding that there was insufficient evidence to believe that our client had committed a crime.

Neil and I prepped that preliminary examination for weeks and all of that hard work resulted in a DISMISSAL. Doesn’t get any more satisfying than that.

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5-Year Felony Dismissed in Wayne County…Client has his LIFE back!

At least once per week, during everyday conversation, I am asked how I can be a criminal defense attorney. Invariably, my response goes something like this: “Completely innocent people are charged with crimes everyday and everyone has a Constitutionally protected right to a defense.” Usually, when people hear this, they simply roll-their eyes, sigh and change the subject. It seems to me that people find it hard to imagine that I can be so passionate about helping people that they have summarily determined are “criminals.” And this is precisely the problem: Despite the alleged presumption of innocence, I am asked how I can do what I do. Allow me to demonstrate how I can defend individuals charged with crimes by reference to a case out of Wayne County.

A few months ago, J.C. (name obscured for privacy reasons) visited our office. He told us a disturbing story wherein he had ultimately been charged with Receiving and Concealing Stolen Property having a value of up to $20,000 – a 5 year felony. He had talked to several other attorneys, who had all told him that his case was going to be difficult to win. Never willing to back down from a fight, Neil Rockind sat down with him and asked him to do one simple thing: explain what had happened.

Here is what J.C. told us. He had been charged with a crime that he did not commit. The police were claiming that he had assisted his girlfriend with stealing and/or concealing stolen property from Home Depot. Essentially, J.C.’s girlfriend had been using her mother’s Home Depot credit card without permission and since all of the property that J.C.’s girlfriend had purchased was being stored in J.C.’s garage, the police assumed that J.C. must have known that it was fraudulently purchased.

At the preliminary examination, Neil Rockind raised two legal arguments: (1) Knowledge that the property was stolen is an essential element of the offense, and the prosecution had no evidence that J.C. knew that his then-girlfriend had fraudulently purchased the items from Home Depot; and (2) the charge of Receiving/Concealing Stolen Property was not  appropriate because no property had actually been stolen – due to the fact that the property was not “converted, embezzled or stolen.”

At the preliminary examination, the Judge wrongfully bound J.C. up to the Circuit Court. Several times, the examining Judge stated: “This case is very weak…I can’t believe I’m binding this case over.” And here is where the error occurred. The prosecution had presented ZERO evidence of guilt of any crime by J.C., especially the crime of Receiving/Concealing Stolen Property – which should have forced the Judge to dismiss the case. But the Judge erred and wrongly sent the case to the circuit court.

Once at the Wayne County Circuit Court, I asked the prosecutor to do the right thing and dismiss the case. I explained my client’s innocence and explained the mistake by the examining magistrate – yet, he would not relent. So, we were left with one option: File a motion to dismiss the case and plead with the Circuit Court Judge for justice. The prosecutor guffawed; casual observers in the court room snickered. But at the end of the hearing, the Judge agreed that there was ZERO evidence to believe that J.C. had committed any crime. CHARGE DISMISSED, CASE CLOSED! And everyone in the court room, including the prosecutor, were in disbelief.

This is why Neil Rockind and I do what we do. We help people. We fight. We fought for J.C. and we were able to get him his justice. J.C., an innocent person, wrongly accused,  got his life back.

Yesterday, we received this letter from J.C.’s father:

“Colin, Neil, Jennifer

As I’m sure you believe, Justice is philosophically, theoretically, and conceptually supposed to be “Blind” and objective. My son’s introduction to the Criminal Justice System was initially , one of the worst examples of a classic case of  ‘ theory and application NOT going hand in hand’

I personally know after working for the MDOC for 16 years, that if many prisoners had the option of hiring your Firm, as opposed to a Court appointed attorney, they definitely would be serving a ‘lighter’ sentence or not incarcerated at all.

One of the things that keep me going is when I make a set of dentures for a prisoner whose black, rotten, teeth have to extracted because of years crystal meth abuse and when I deliver the dentures, the patient looks in a mirror and starts crying saying, “that’s the first time I’ve smiled in ten years!” Same amount of hard work striving to achieve excellent fit and esthetics, but much more rewarding then, when in private practice and, remaking a denture I’ve charged a couple grand for, and the patient, on delivery states, “they’re OK.”

I know your Firm has probably charged much higher fees for cases that required a lot less time then for my son’s case.  The team , Neil, you and Jennifer who worked so hard  and diligently, invested a tremendous amount of time, while at the same time providing constant updates on the status of his case to prove his innocence, is amazing. 

When there was a question of Justice prevailing, it is because of, and only because of, the Firm’s dedication that Justice finally prevailed, despite the almost insurmountable and unconscionable obstacle of a Justice System not being Just.

When Justice finally prevailed, like my prisoner/patient after I delivered her denture, my son and I, like her, were both crying.

I’m hopeful that despite the constant frustrations, setbacks and stress that  we face in our profession, that cases like this revitalize us, physically, mentally and philosophically and ‘keep us going.’

Eternally grateful,

Bill”

– Colin A. Daniels

Neil Rockind – Dismissal at Exam of ALL charges in a Felony Larceny from a Building case in New Baltimore, MI!

For the past few months we have been representing B.K. who was charged with Larceny from a Building in New Baltimore, MI.

B.K. was accused (by his own father) of taking, without permission, several pieces of equipment from the family-owned veterinary clinic.

Our client  maintained his innocence from the beginning. Nevertheless, the New Baltimore Police Department and the Macomb County Prosecutor’s Office did the absolute minimal investigation and charged B.K., even though there was no evidence that B.K. had taken a single thing.

After several months of adjournments, all requested by the Prosecutor’s Office, Neil Rockind finally held the preliminary examination this morning. Half-way through Neil’s cross-examination of the father (the person who was accusing B.K.), the Judge requested to see both the Prosecutor and Defense Counsel in chambers.

The Judge was astonished that there was absolutely no evidence that B.K. had actually taken a single piece of equipment, and yet the father was claiming a loss of nearly $300,000.00! The Judge concluded that due to a complete lack of evidence of theft, that the charges were to be immediately dismissed!

These are the outcomes that we strive for in every single case. All-too-often Prosecutor’s offices just push ahead on cases, even though they have no evidence that the crime actually occurred. And all-too-often the Judges simply bind the defendants over to the Circuit Court in order to clear the cases off of their own docket. It is very reassuring when a District Court Judge can look at a Prosecutor’s case and say to himself and the community, “There is no evidence…I cannot let this case proceed.”

We wish you the best of luck in the future B.K.

– Colin A. Daniels