Defending People after the Worst Day of Their Life
Criminal defense attorney Margaret Sind Raben of Gurewitz & Raben shares stories of incorrect paperwork, double jeopardy and the legal definition of a dating relationship
Published in 2014 Michigan Super Lawyers magazine
By Emily White on September 2, 2014
Q: You have a pretty small firm. How did it come to be?
A: I graduated from law school in 1986. I was an older student. I went to law school in my late 30s, and then worked for Harold [Gurewitz, my current law partner] as a researcher during law school. When I graduated, he was starting a firm with another lawyer, and they hired me. So I’ve worked for Harold pretty much since 1984.
In 1995, we went out on our own. Once we made the decisions, which took all of about 10 minutes, Harold asked me if I had $25 in my pocket. I said I did, and he said, “Why don’t you drive up to Lansing, and file our incorporation papers?” He and I have been practicing ever since.
Q: Did you do criminal defense from the start?
A: When I first started practicing, I did a small amount of family law—primarily divorce and some insurance defense work. The end of my family law practice occurred when I was representing a young man who was in the process of divorcing his wife, and they’d only been married a couple of years, no kids. They were dividing up their property, and neither one of them was willing to give up the microwave oven.
I remember saying to my client, “This is absolutely stupid. You are paying me $100 an hour to fight about a kitchen appliance that you can buy at Kmart for $100.” And he kept saying, “It’s the principle of the thing,” and I kept saying, “No. There’s no principle here. We are going to end this. I will buy you a microwave oven.”
When we got done with it, I remember looking out the window and thinking, “I can’t do this anymore. I just cannot be fighting over kitchen appliances.”
Q: How long was that period?
A: Oh, maybe two years. I would have been 42 then. My husband is deceased now, but I was married then, and I had three small children. Harold and the other attorney I work for, Martin Baum, were just wonderful, wonderful men. Still are. Their attitude was, “We’re family men. You’re a family woman. Sometimes the family takes precedence, and as long as you get your work done, we’re not going to confine you to 9 to 5.” It was an awfully good way to start practice.
Q: What’s one of the challenges of your job?
A: Many times federal clients have prior state criminal histories, so I have to know what to look for in the documentation on that, which is sometimes wrong. It is not uncommon to find mistakes in the documentation of a case. In fact, in state criminal cases earlier than say 1980, the paperwork, I’d say, is probably wrong a third of the time: transcription errors, incorrect references to charging statutes. It was at a time when everything was done by hand.
I’ve had judges say to me, “Well, how did this happen?” I feel like saying, “Look. It’s your court, OK? You tell me.”
Q: Can you give me an example of a case where this happened?
A: I had an assigned case in Oakland County, a young African man here on a student visa who was charged with second offense of possession of marijuana. And this would create some immigration problems for him.
So he’s describing to me his first case. It was at a district court in Oakland County, and I said to him, “Why weren’t you given 7411?” 7411 is the shorthand reference to a drug possession diversion program that’s available under state law. And he said to me, “Nobody ever talked to me about that.”
Then he tells me that he declined the appointment of an attorney because he didn’t want to pay the $250 reimbursement. So I went over to the district court and pulled the file, and I’m looking at it, and it was actually a city case, city prosecution, rather than a state prosecution, and in the file, there is a document that says, “Plea offer,” and it says, “Court will consider 7411 at sentencing.”
I ordered the transcript of the sentencing at my own expense, because there’s never any money for any of this, and at his sentencing, nobody said anything about 7411. The judge doesn’t say it. The city attorney doesn’t say it. The prosecutor doesn’t say it. Even though there’s this piece of paper in the file.
I’m not accusing anybody of anything. I’m assuming it’s an oversight. But I filed the motion to reopen the case and say, “He needs to be resentenced to 7411 because this was what his plea bargain was.”
So we got it fixed, and that reduced my client’s pending marijuana charge to a first offense, which he promptly pled guilty to and went on about his way. And justice was done.
Q: Do your clients often offend again?
A: Some do. Some don’t. [Many] recognize that they are on very thin ice. People get charged with crimes often as a result of the worst day in their life. Here’s a good example.
My client was charged with assaulting her boyfriend with a knife during a fight. This is felonious assault. It’s a four-year felony. My client has no criminal history, and frankly, if she gets convicted of a four-year felony, she’s going to have a terrible time getting a job and getting into school.
The case is being charged under one of Michigan’s domestic violence laws. In order for her to be convicted under domestic violence assault, rather than simple assault, they have to prove that these two people are in a dating relationship. That doesn’t require that you be married, but it requires that you be in a relationship characterized by affection and involvement.
Q: That’s the definition of a dating relationship?
A: Yes. So I have this young man on the stand, and he’s testifying about her, and I ask him, “You’re not in love with her, are you?” and he says, “Oh no.” I said, “In fact, you’re just with her for the sex, aren’t you?” and he says, “Yeah.” I said, “You don’t think of her as your girlfriend, do you?” and he says, “No.” I thought she was going to get right up and go after him again, because she clearly thought that they had something going on.
Anyway, at the end of the exam, the proceeding, the judge says, “Well, I’m going to find probable cause.” But she added, “You know, I’ve got to tell you, I’m not sure that the prosecution is going to be able to prove the [dating relationship].”
The judge, as judges will, was trying very hard to resolve the case. I had given her the transcript of the preliminary exam, the probable cause proceeding. I told her that they cannot prove dating relationship here, and she agreed that maybe they wouldn’t be able to do it, but you never know [because] it’s a jury question.
So we resolved the case with two misdemeanors under diversion programs, and at the end of the year both offenses were dismissed.
Q: With those misdemeanors, they go to something like anger management?
A: Actually, the judge sort of crafted her own diversion program for my client and basically said, “Stay out of trouble. Stay away from this guy and go to anger management,” which she did. And I told her, “Be a little more fussy about guys.”
Q: Tell me about your federal cases.
A: The federal cases are always more complicated factually. They’re more complicated legally. There’s always much more work expected of an assigned attorney.
But I just had a case—my client was a City of Detroit policewoman charged with participating in what was alleged to be a very large auto insurance fraud scheme. Cars were supposedly purchased, insurance fraudulently obtained, and then there would be these staged accidents or thefts of the car and the filing of insurance claims, which were fraudulent, because the cars were over-insured, and the accidents were sketchy, iffy.
The government actually indicted my client separately and then indicted the rest of the defendants seven minutes later, all of them together. I believe the government’s intention was to get a guilty plea from my client and then turn her into a witness against the others.
We plowed through 2,500 pages of insurance reports and all the rest of this, and she tells me right from the start, “I did not do anything wrong.” She said, “The only thing I did was I bought these cars from this guy. I bought them from him because I have crappy credit, I can’t get a car loan.”
These federal cases are scary, because the sentences are so much higher than the state stuff, but my client says to me, she says, “You know, I have a good job with benefits.” She’s a single mother. She said, “Why would I jeopardize what I have to do something with him?” And I went, “OK. All right. Let’s go to trial.”
So we go to trial and she’s acquitted of the conspiracy to commit insurance fraud, and she’s acquitted of one count of mail fraud, which is the sending of the insurance checks through the mail, and the jury hangs, 10 to two, to acquit her on the other count.
This is a very good result. The government immediately announces they’re going to retry her on the hung count, and then indicts her into the other case. That creates an issue about double jeopardy. She’s already been acquitted of the scheme to defraud in her first case, and it’s the same scheme to defraud in the other case.
This is a terrific legal issue from a criminal defense standpoint. So I file a motion to dismiss her out of the second case on the basis that the jury has already decided in the first case that she wasn’t a participant in this scheme to defraud.
The trial court denies my motion, so I take an interlocutory appeal to the Sixth Circuit Court of Appeals in Cincinnati. I file my pleadings, and the week before the prosecutors’ response is due, they call and say, they think they’d like to offer dismissal of the charges in the second case. And I say, “Well, that would be terrific, but you have to throw in the remaining count from the first case, too,” and there’s some hemming and hawing, but they agree to do it.
Q: What’s your trial strategy?
A: You have to know your client; you have to know your case. Sometimes the prosecution’s case is so loosey-goosey that the best thing is to just sit there and be quiet.
I’ve been doing this pretty consistently since 1986, and I still love what I do.
I remember sitting in constitutional law while I was in law school and just loving it. It was so pure and so important. Most attorneys never get a chance to litigate constitutional principles, but the only lawyers mentioned in the Constitution are in the Sixth Amendment, the right to the assistance of counsel.
That’s what we do, because the power of the prosecution is so enormous and so unchecked. It is absolutely unchecked. You know that image of that Chinese student standing there while the tank rolls right up to him? That’s how I feel about the criminal justice system. The only thing protecting my client from the power of the state, let alone the federal government, is his or her defender.
This interview was edited and condensed.
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