Family Man, Attorney & Author
As a former prosecutor, I worked on many resisting arrest cases in both New York City and here in Michigan. The biggest misconception that I had to overcome was the scope of a resisting arrest charge. Most people, even some lawyers viewed resisting arrest as running from the cops, pushing, shoving and not allowing the cops to make an arrest.; straight from the show COPS.
So when I had a case where the facts didn't live up to those images, I received a lot of shoulder shrugs and confusion why such a serious charge. And it is a serious charge; in Michigan resisting arrest is a felony offense, which carries potential prison time. A lot of local townships, cities, villages and other non-county prosecutors charge it as a local ordinance, which is a misdemeanor offense. If the county charges this offense, they have the option of charging it as an attempted resisting arrest, which is a misdemeanor.
In my opinion, one of the worse charges to pop-up on a background check for someone. Not only were you violent, "didn't listen" but you did it with a police officer? Images of punching the cop are front and center for the person seeing this conviction even if those were not the facts.
As a prosecutor, my main concern was my police officer. I was in a position in Oakland County in the Warrants Division and in New York City with the Early Case Assessment Bureau to decide on the particular charge, and depending on the facts, we may go with the felony or the misdemeanor. I had cases where the defendant talked back to the cop, didn't listen and tried to avoid the arrest; this could have been a felony, but many times we went with the attempted resisting and kept the case a misdemeanor.
This was done for many reasons, but one was a sense of fairness/common sense with an eye on felony case management. If the charge had a likelihood of being reduced via plea bargain, we might just start it as a misdemeanor. Why clog up felony prosecutors and the circuit court with borderline felony cases. If the case involved an officer being injured or attacked beyond some incidental contact, we would most likely go with the felony offense with an eye on potential reduction later on in the case, but that would be up to the police officer.
Resisting arrest cases were usually multi-charge cases meaning the officer(s) were involved for something else then the case also became a resisting arrest incident. DUI, drug possession, domestic violence, disorderly conduct and other offenses were common accompanying charges.
Being on the prosecutor side of the table, I was not impressed with the approach of most of the defense lawyers on these cases. They would come up to me and just ask for a deal on the case; they failed to acknowledge my point of view of the case or how the officer felt about the case.
If the client had no record, they would push this narrative over and over again, and while it is a positive thing the client has no record, they still made some poor choices, and not respecting the police department that my office works with on a daily basis. It's also a pretty strong case when my star witness is a police officer who can offer direct testimony about the incident; I am not relying on a test, science or civilian witnesses. It's a quick and easy trial if I want to go that route.
Based on my experience as a prosecutor, I approach these cases in a very different manner for my clients. I want to avoid a felony, jail time, and potentially keep a conviction off of my client's record. It depends if we're starting with a felony or a misdemeanor and my client's record. We have to acknowledge the perception of our audience (prosecutor and judge). Like a prosecutor, the judge is more familiar and trusting of the local police officer than my client, and I don't ignore that important fact. The general public may also view a police officer has more reliable and trustworthy if they took the stand against my client who may or may not testify at the trial.
It's my goal to present my client in the best light possible for plea negotiations, but not in a bullshit dress them up fashion. If my client has flaws, issues, problems, we put them all on the table. You get no where telling a prosecutor "my client has no record, a family, job and he's a great guy"; it's in one ear and out the other. That is not what a prosecutor is looking for to strike a great deal for the client.
If my client was drunk or high when he allegedly resisted arrest, we're going to focus on substance abuse with proper assessment and evaluation and put a plan into place. We might begin voluntarily daily alcohol testing, jump into alcohol education and/or counseling. If my client was sober, but dealing with emotional or mental health issues, we're going to jump into evaluation on that front and work to address it with properly trained third party professionals. We need to get to the heart of the issue.
The possibilities are endless. Unless my client is just an evil spirit who likes to push around cops and mistreat them, it's likely we're going to be able to figure out why they found themselves on the wrong side of the law. I carefully select my clients on every case, and seek out people with good hearts, who respect their community, but end up on the wrong side of the law due to something going on in their life. I have never worked with someone who I just thought was a bad person looking to hurt people.
The problem is the prosecutor and judge don't know that my client is a good person who is typically a positive person in the community, and makes the right choice 99.9 percent of the time, and can use this as a learning experience vs NEEDING punishment to understand right from wrong.
It's my job to educate and advocate for my client, and again not in a bullshit way. It's ok to be flawed or have a mental, emotional or physical issue that has brought us all together. It actually helps your case if we can point to an issue then work toward resolving or improving that issue.
I get my best results for a client when I fully understand how we ended up working together. A case with some bad facts can quickly turnaround when we identify the variable that caused this case to happen, and we can proactively address for the prosecutor and judge.
I like to approach the case in a way where we are in charge from day one, and actively work on improving the perception and eventually the reality for the prosecutor and judge. These key players have limited time and attention spans to focus on each case; without a comprehensive approach that makes sense, the client will remain a name and a charge. That is how most client's end up with the "default result".
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