Spotlight On: Michael L. Steinberg

Michael, you are on the Board of the Criminal Defense Attorneys of Michigan (CDAM), a frequent and generous contributor to the SADO pleading database, and an experienced trial attorney.  Can you please describe your practice and the types of cases you handle?

 I handle a large number of criminal cases, from simple assaults, frauds, theft, narcotics, through the more complex cases such as criminal sexual conduct and murder.  I am on the capital assignment list in Oakland and Macomb counties and get those types of cases almost exclusively in Macomb cases.  The most common capital cases are armed robbery and criminal sexual conduct involving a family member.  The latter can be extremely difficult to defend and I have developed some significant experience with them.  I also have a specialty of representing adults accused of neglect in family court, many of them bridging criminal law as well.  Last, I do quite a bit of drunk driving defense and matters attendant to these offenses.

What are some of the problems an attorney should watch for, or pitfalls to avoid, in the early stages of a defense?  In trial?

 Pitfalls are many.  If you are lucky enough to get the case before charges are filed, one pitfall is assuming just because you have handled a similar matter that the new one is going to go the same.  Another pitfall is coming into contact with the police with an aggressive attitude. This one got me early in my career and made me less effective.  I think there is a nice way to represent your client, get information from the police and progress.   Once in the case, another pitfall is not doing aggressive discovery.  Many lawyers have the attitude, “I am not going to get that, so why should I seek it?”  Another pitfall in cases is lawyers taking on cases that they are not competent to take on and thinking that they will learn along the way, failing to identify the right mentor out there to help, and taking on more cases than they have the ability to properly manage.  I also find it difficult when a lawyer marries themselves to a theory of the case early in and not adapting when it changes. This happens a lot at preliminary examinations and in trial.  A defense attorney must be flexible. Quite frankly, I do not actually commit to a theory until closing argument and even then, I still highlight other alternatives.  In trial, I have seen very ineffective voir dire and lawyers asking closed questions that almost look like cross-examination. Last, in trial, a pitfall may include feeling that you must answer the prosecutor’s case, rather than tell an alternative story.  Not all cases are point-for-point aligned with the prosecution.  In other words, I think that we just buy the prosecution’s case too much.

Do you find that certain types of cases have their own unique difficulties or problems?

 I think in rape and domestic violence cases the fact that the Supreme Court continues to hold that other acts evidence, even if closely aligned factually to the immediate case, comes in, causes us to defend a multiple-front case.  Juries are allowed to make a factual connection between these uncharged cases and the immediate case at bar and it places a significant burden on the defendant.  In addition, I find that the delayed disclosure cases alleging rape are difficult because there is no physical evidence and the experts presented by the government many times will argue that there may not be any manifest behavior problems of the person claiming rape.  In arson cases it is important to show how the determination of intentional setting does not comport to the evidence presented.  The theme for me in these cases and cases where an automobile or gun may have been the instrument of death is to find the right expert that connects with me and, more importantly, with the jury.

Could you describe a case where you found unique challenges?  What were the main issues in the cases, and how were the challenges resolved? Were experts involved?

 I litigated a murder case in which the entire incident was captured on a gas station surveillance camera system.  At the preliminary examination, the only video produced was the police holding a camcorder up to the screen of the monitor and recording the image on the screen.  The case involved the decedent and his friends running a car out into the middle of the street and pulling my client’s brother out of a car and beating him up.  The fight spilled into gas station and my client was going around the pumps trying, in essence, to get the 3 men off of his brother. On the last turn around the pumps (low speed) another unrelated vehicle came in, causing my client to veer into the fleeing decedent.

 The case was originally charged as open murder.  I filed a memorandum at the district court telling the judge he did not have to bind over on open murder.  He agreed and bound over on 2nd degree.

 One of the difficulties in the case was in understanding the accident reconstruction.  I had to go to exam without an expert.  I had to learn scads of material on my own, without an expert.  Once I got an expert, however, we were able to shoot some holes in the case including the claimed rate of speed of the vehicle. Another difficulty in the case was getting the other camera angles.  It took a lot but, I got a video expert appointed, Ken Glaza from KNR.*  Once on the case, he was able to enhance all the angles, showing the aggression of the decedent and his pals and also actually showing the other vehicle coming onto the scene and causing my client to veer and strike the decedent.  The video was graphic, showing the decedent getting catapulted onto the hood of the car.

 My client was acquitted of 2nd degree murder and found guilty of involuntary manslaughter.  He has never accepted his guilt and his life has been ruined. His only trouble with the police before was a driving on a suspended license.  He has escalated to level V in the prison and is in a maximum security prison.

What did you learn from the case?

 Well, in the case, the matter became personal between me and the prosecutor.  He took direct shots at me and I allowed it to get to me.  In addition, I think that I needed to draft better jury instructions.  The standard jury instruction on accident as a defense was woefully inadequate.  Last, I learned I needed to have more faith in my client taking the stand and telling his story.  I felt that the video told his story very well.  My defense was defense of others and accident.  Maybe the fear of what the defendant was perceiving was necessary for them.  The jury felt that he could have driven in a safer manner and that he should have called the police.  So, I did present my client as well.  He needed to tell them he was basically a hard-working and law-abiding citizen.

Any suggestions that you would make to other defense attorneys?

 GO TO THE TRIAL COLLEGE.  I went with almost 14 years of trial experience and this revolutionized how I present trials now.  Particularly on how to conduct voir dire.  In addition, lose your ego.  You are not “GOD’s gift” to the courtroom or the case.  Do not stop educating yourself and do not isolate yourself and fail to interact with other attorneys because you know everything.  Find downtime for yourself and a good support network to unburden yourself.  It is ok to talk shop.  You’d be amazed at how many people are really interested in your cases after the initial “how can you defend the guilty person” question.

Any advice to newcomers?

 GO TO TRIAL COLLEGE!!!! and every seminar that your local bar and CDAM offers.  Join CDAM and the NACDL.**   Find a good mentor, read good materials and ask questions.  There are no dumb questions.  Also, if you were a former prosecutor, that position does not automatically make you a good defense attorney.  Also, do not buy the police report or the fact that the prosecution is going to threaten you with no deals if . . .  as the gospel. Lastly, RELAX.  A certain lack of fear is healthy.  You can do this stuff if asked.  In the converse, however, do not assume that simply because you worked for SADO as a research assistant and clerked for every criminal defense attorney in the greater Lansing area that you are a born defense attorney.  Hear that, Mikey?  LOL

by Neil Leithauser
Associate Editor

* K & R All Media Studios, www.knr.net

** National Association of Criminal Defense Lawyers, www.nacdl.org