Defending the Despicable
Michigan’s top criminal defense attorneys make a case for defending the bad guys
Published in 2006 Michigan Super Lawyers magazine
By Toni Klym McLellan on September 1, 2006
If revenge is a dish best served cold, what’s the recipe for justice? Criminal defense attorneys skillfully bring unpopular arguments to the table in a society hungry for “quick-and-dirty” sentencing. Four of Michigan’s top criminal defense attorneys speak frankly about advocating for clients who have committed reprehensible acts.
“In most cases I represent good people who have done incredibly dumb things,” says former U.S. Attorney James S. Brady, a fellow of the Michigan State Bar Foundation, and a member of American Trial Lawyers. “They’re not necessarily despicable people, though what they did may be interpreted that way.” He cites one tragic example of a case in which a client was charged with involuntary manslaughter. “He owned a restaurant equipment-refurbishing business, and three children [had gotten] trapped in a piece of equipment on his property,” says Brady, who secured an acquittal for the business owner.
Other defendants are not merely careless: In the 1970s Brady represented a serial rapist and murderer who had terrified Grand Rapids residents. “We presented a heck of a defense because [the accused had been] tortured as a kid,” says Brady. “He was what they call a ‘poster child’ for what happens to a severely abused child.” Brady’s client pled not guilty by reason of insanity. “The jury was out for about a week and I think they were torn, but ultimately found him guilty.”
Brady, who joined the Grand Rapids office of Miller Johnson in 1981, draws a distinct line between his personal feelings and professional duties. “I took an oath, and my obligation is to provide the very best defense as if [the defendent] had my skills. That’s what being a lawyer requires of me, just like it requires of a doctor serving in Iraq who comes across a bleeding combatant on the other side — do you pass that person by, or do you give the best skills available to save that person’s life? I think the answer’s clear there.”
In his 35 years of practice, including a stint as Flint City attorney and as a district judge for eight years, Thomas Donnellan’s experiences invigorated and informed his criminal defense practice. “I prosecuted a lot of cases in the city attorney’s office, but I think the best prosecutors are people who think like defense attorneys, and the best defense attorneys are people who think like prosecutors,” he says. Now in solo private practice in Flint, Donnellan’s career reads like a criminal procedure textbook. He even scored a coup — the reversal of a conviction on the grounds of double jeopardy before the Michigan Supreme Court — often seen only on TV.
Donnellan describes his scariest client as “the best client I ever had” because he was open with all the facts. Arrested for holding up a drug store with a sawed-off shotgun, his client “would’ve had no hesitation in wiping me out if I caused him any trouble,” says Donnellan, a board member of Michigan Common Cause and a former board member of the Community Dispute Resolution Center. “But he [had been] through the system so many times that he knew what I was there for, and he knew there was nothing to be gained by lying to me.”
Criminal law still fascinates Donnellan. “What thrills me is finding out that there was some type of an injustice done or an incorrect conclusion of the guilt of a defendant that I can set aside or correct.”
Like Donnellan, Charles “Chip” Chamberlain, a founding partner of Grand Rapids firm Willey, Chamberlain & Yates and a member of such prestigous organizations as the National Association of Criminal Defense Lawyers and the Criminal Defense Attorneys of Michigan, finds that criminal defense work has its rewards and pitfalls. “I think the main satisfaction is in helping people and families through probably the most tragic incidents in their lives,” he says. “I’ve represented people charged with the most insignificant things from traffic offenses all the way up to murder, and there hasn’t been a single client who wasn’t worthy of representation.”
Another challenge of defense work is dealing with the onslaught of media buzzards who hover over high-profile criminal cases. Chamberlain worked on one of Michigan’s first ethnic-intimidation cases. It was “a stupid road-rage case that got blown out of proportion.” Intense press coverage made trying the case difficult, and his client was acquitted of felony racial intimidation but convicted of a lesser charge. “My dad had an expression: ‘There’s no pancake out there that doesn’t have two sides,’” says Chamberlain. “Once you get to know your client and get to know the circumstances, there’s always some part of a case that’s going to make a difference—either in mitigating the punishment or establishing a client’s innocence.”
Sometimes violence and rage explode beyond the original alleged criminal acts. Lake Orion criminal defense and professional ethics attorney Kenneth Mogill, a past president of Criminal Defense Attorneys of Michigan and a fellow of the American College of Trial Lawyers, knows firsthand how risky his chosen practice area can be. Mogill had won an acquittal for his client, a schoolteacher who had been accused of molesting his students two decades before. Late one night, someone unhappy with the results of the case firebombed Mogill’s office.
The founding partner of Detroit firm Mogill, Posner & Cohen, Mogill cut his eye teeth in the early 1970s by volunteering with other fledgling attorneys to represent inmates in the aftermath of the infamous Attica prison riot in New York. “It was quite an amazing experience,” he says, citing his youthful, utter lack of resources at the outset. “As information came out that the deaths were almost universally attributable to the actions of the National Guard and not the inmates, public support increased and I think the defendants were able to get fair trials.” Mogill’s client was acquitted.
Despite the risks and pressures, he remains passionate about the vital role of the defense in the criminal justice system. “Ben Franklin essentially said that those who trade liberty for security end up with neither,” says Mogill. “People have to always keep in mind that if we start cutting corners for people who are ‘obviously guilty,’ there are going to be innocent people who pay the price down the road, when those rules that were designed to protect everybody are no longer in place to protect the innocent as well as the guilty.”
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