This statute prohibits individuals from obtaining money or property, for direct or indirect benefit, through fraud, deceit, coercion, unjust enrichment, or misrepresentation from those known to be or suspected of being vulnerable adults. Moreover, a vulnerable adult is defined as the following: an individual who is at least 18 years old who cannot live independently due to mental illness, age, developmental or physical abilities, or is unable to protect himself or herself from abuse, neglect, or exploitation. Additionally, a vulnerable adult is defined as a resident of an adult foster care or group home.

Penalties for violations depend on the value of the money or property gained and if there are prior convictions. If the value is under $1,000.00, a person may be charged with a misdemeanor. For a value over $1,000.00, an individual may be charged with a felony. The maximum penalty for this offense is 20 years in prison; a fine up to $50,000.00 or three times the value of the money or property, whichever is greater; or both.

With the amendment, judges can now impose consecutive sentences on defendants convicted of many offenses under the statute. If judges impose consecutive instead of concurrent sentences, defendants face longer periods of incarceration. Moreover, the statute now comports with the general embezzlement statute, which already authorizes consecutive sentencing in felony cases in which the victim is any of the following: a nonprofit corporation or charitable organization, a person age 60 or older, or a vulnerable adult.

More Changes

Recently, another bill related to vulnerable adults was approved by the House and Senate and now will move to the Governor’s office.

In Michigan, individuals can be charged with first-degree murder if they kill another in the commission of an enumerated felony. First-degree murder convictions are subject to life imprisonment without parole.

The affected portion of the statute currently reads, “Vulnerable adult abuse in the first and second degree.” Proving both of these simultaneously would make it difficult to procure a felony murder conviction. The change would clarify the language to state “first or second degree” to allow prosecutors to prove either to obtain a conviction and would make the statute consistent with the Court of Appeals’ interpretation. In other words, the change would make it easier for prosecutors to gain felony murder convictions.

The Michigan trial lawyers at Kronzek and Cronkright, PLLC have extensive experience defending a wide array of crimes related to vulnerable adults. Our aggressive legal advocacy has yielded great success for many clients over the years. For those considering hiring our firm, we offer a free case evaluation. Contact us today at 1-866-7NoJail! Knowledgeable attorneys are available by appointment and are on call 24/7 in case of emergency situations.

Our attorneys defend clients all across the lower peninsula of Michigan, including Ingham County, Grand Rapids, Muskegon County, Macomb County, Oakland County, Wayne County, Midland, and more.

- Michael Cronkright

Mr. Cronkright is a trial attorney at Kronzek & Cronkright, PLLC. He represents clients in all criminal matters and Child Protective Proceedings.

Parents seeking help for a child with mental health issues will find that Michigan’s new law presents new challenges. Children facing criminal prosecution and competency issues should always have the assistance of a qualified attorney. Kronzek & Cronkright, PLLC offers free consultations to parents trying to help their child with a criminal case.

In March 2013, Michigan’s new juvenile competency statute went into effect, outlining standards to determine a child’s competency to stand trial in juvenile delinquency hearings. This page is designed to provide an overview of certain key provisions.

Presumptions

• Juveniles 10 years old and up are presumed competent unless challenged by a party.
• Juveniles under age 10 are presumed incompetent to proceed.

Competency Evaluation

A competency evaluation may be ordered by the court based on its own motion, or if requested by the prosecuting attorney, the child’s attorney, or the child. Additionally, the issue of competency may be raised at any time during the proceeding. Once the issue of competency is raised, the proceeding temporarily ceases until competency is determined.

Furthermore , this evaluation is to occur in the least restrictive environment. There is a presumption of conducting the evaluation while the child remains in the custody of a parent or legal guardian unless conditions exist to warrant removal first.

In addition, this evaluation is to be conducted by a qualified juvenile mental health examiner. The examiner provides the court with an opinion indicating whether the juvenile is competent to move forward.

The court will order the prosecuting attorney to provide the juvenile’s attorney all necessary information related to competency; and order attorneys on both sides to submit information about the offense and background information. Except where prohibited by federal law, the court will require the juvenile’s attorney to provide the following records: (1) School records; (2) Psychiatric records; (3) Medical records; and (4) Child protective services records.

All information must be provided to the examiner within 10 days after the court orders the competency evaluation. No later than 30 days from receiving the court order, the examiner will submit a written report to the court; although an extension is available.

The report must describe the content, nature, and extent of the exam; a clinical assessment; and the abilities and deficits related to competency.

Regarding evaluating the abilities and deficits, two areas are focused upon.

First is an evaluation of the juvenile’s ability to factually and rationally understand the nature and purpose of the proceedings. Some factors considered include whether the following abilities exist:

• Understands the role of the court participants and the adversarial nature of the hearings;
• Appreciates the seriousness of the criminal charges;
• Realistically evaluates and understands likely outcomes;
• Able to engage in thinking of the future.

Next is the ability to give meaningful assistance to the juvenile’s attorney in case preparation. Factors considered include:

• Able to provide a lawyer a reasonably coherent description of events and facts related to the charge;
• Considers how his or her actions affect others;
• Can express himself or herself in a coherent manner;
• Has logical decision-making and problem-solving skills;
• Able to weigh available options by considering the consequences, including regarding pleas, waivers, and legal strategies;
• Able to display appropriate courtroom behavior.

The report must also discuss any psychiatric or psychological disorders or cognitive impairment. Moreover, the report must address the prognosis and the services required in order to restore the juvenile’s competency.

Competency Hearing

Within 30 days after the filing of the report, the court will conduct a hearing to decide if a juvenile is competent to proceed. The court may find that the juvenile is competent and the case resumes. However, the court could also find that the juvenile is incompetent, and that he or she is either likely or unlikely to be restored.

If the juvenile is found incompetent and unlikely to be restored, the court will dismiss the charges with prejudice and may decide custody of the juvenile.

If the juvenile is determined incompetent and may be restored in the near future, one of the following occurs:

• For traffic offenses or low level misdemeanors, the matter will be dismissed;
• For a serious misdemeanor, the court may either dismiss or suspend the matter;
• If the crime is a felony, proceedings will be suspended.

Restoration

Additionally, before a restoration order is issued, the court will hold a hearing to find the least restrictive environment for the restoration to be completed.

The court could issue a restoration order that is valid for 60 days or until one of the following conditions occurs, whichever is first: (1) the examiner submits a report based on information from the restoration provider showing the juvenile regained competency, or there is no substantial probability that the juvenile will become competent within the time frame of the order; (2) the charges in question were dismissed; or (3) the juvenile turns 18 years old. Additionally, the restoration order may be renewed for 60 days up to a maximum of 120 days.

Furthermore, the qualified restoration provider will submit a report to the court and the examiner every 30 days or sooner, if the following occurs: (1) the restoration provider finds that the juvenile is no longer incompetent; or (2) the provider finds there is no substantial probability that the juvenile will be competent to proceed within the time frame of the order.

In cases where the juvenile is found incompetent and unable to be restored, the following will happen: (1) First, the court will determine custody of the juvenile. The court may initiate civil commitment proceedings under the Mental Health Code; or the juvenile will be released to his or her parents or legal guardians under appropriate conditions. (2) Secondly, criminal charges against the juvenile will be dropped.

Treatment Issues

If the juvenile has a serious emotional disturbance—and is incompetent and unable to be restored because of this—then the court may order mental health services at its discretion. Within 14 days before an expiration of an order for treatment, the mental health agency will submit a report to the court and the examiner regarding the juvenile. After reviewing the report, the court will either renew the order for additional treatment for 60 days; or determine custody and dismiss the charges. Any renewed order cannot exceed a total of 120 days.

Don’t Delay

In all instances, Children facing criminal prosecution require the assistance of a skilled criminal defense attorney. We invite parent inquiries and will provide an initial analysis of your son or daughter’s case at no charge.

- Michael Cronkright

Mr. Cronkright is a trial attorney at Kronzek & Cronkright, PLLC. He represents clients in all criminal matters and Child Protective Proceedings.

Hargrove pleaded guilty to possession of child pornography. He possessed over 800 images and 16 videos of children. At sentencing, the district court judge ordered the defendant to pay restitution to three of these individuals who are now adults. Additionally, the court imposed joint and several liability on the defendant just in case these individuals were not able to obtain the resources to pay for psychological treatment from other convicted defendants who also viewed these videos and images. The defendant asked the appellate court to set aside the restitution order, arguing that the government was not required to prove that he caused actual and proximate harm to these individuals—and because the court did not have the authority to enter the contingent restitution order as well.

In his appeal, the defendant only challenged the restitution order. Based upon various expert reports and materials, the victims claimed that they were subjected to substantial losses, mostly for psychological treatment. Using pseudonyms, “Amy” claimed over $3.3 million; “Vicky” over $148,000; and “L.S.” $150,000. The court determined that the mandatory restitution statute, 18 U.S.C. § 2259, provided statutory causation to support the restitution order; however, the court held that apportionment of the losses was appropriate since other courts had ordered restitution to be paid to these same individuals in other cases. In turn, the court ordered the defendant to pay $3,000 to each person. Alternatively, the court imposed joint and several liability on the defendant in the amount of $150,000 for each person, if it turned out that these individuals were not getting appropriate treatment due to lack of money.

In its analysis, the Court stated that the parties agreed that the district court erred by ordering restitution without requiring that the government prove that the losses were proximately caused by the defendant’s crime. The Court referred to a case, Gamble, which stated that a child pornography victim may recover restitution under § 2259 if it is shown that the defendant actually did cause the victim’s losses—and that the defendant’s actions proximately caused the harm. Moreover, proximate cause indicates the harm is reasonably foreseeable. The Court held in another case, Evers, that the government bears the burden to demonstrate that the victim’s costs incurred were proximately caused by the defendant’s crime. These cited cases were not decided at the time of the defendant’s sentencing.

The defendant argued that he is not the cause-in-fact of the individuals’ injuries as no evidence exists that they knew he possessed the pornography, or that the injuries became more severe because he acquired and viewed the images. In addition, he also argued that he did not proximately cause the harm because any harm resulted from his anonymous downloads was indirect and remote. However, The Court stated it rejected this argument in Gamble, because a cause-in-fact requirement does not mean necessarily that unknown defendants have not caused losses; the individual’s losses result from knowing the image is being circulated generally, and a district court could find that defendants contributed to that knowledge.

The Court vacated the restitution order and remanded the case for further proceedings consistent with this opinion, Evers, and Gamble. Furthermore, the Court stated that if the government carries its burden and proves a restitution award for the individuals is appropriate, then the Court must consider that the defendant is not responsible for harm inflicted before the date of his offense. Then the district court would determine the victim’s provable losses not traceable to one defendant under the proximate cause standard outlined in Gamble and then divide it by the number of convicted possessors of child pornography supplied by a government database. Although, the Court stated that district courts may consider other formulas for allocating restitution as well. Finally, the Court indicated that restitution may not be apportioned by imposing joint and several liability.

If you need assistance with a federal criminal appeal, contact Kronzek and Cronkright, PLLC, today.

- Michael Cronkright

Mr. Cronkright is a trial attorney at Kronzek & Cronkright, PLLC. He represents clients in all criminal matters and Child Protective Proceedings.

Police say that the churches were robbed around Easter weekend and that the gas station was held up recently. In one robbery for which the men are accused, at St. Therese of Lisieux Catholic Church, in Shelby Township, the men stole as much as $50,000, along with some items. Police say the men broke into the safe of St. Luke Lutheran Church in Clinton Township, though reports did not say how much money was taken. The third church mentioned in reports was St. Lawrence Catholic Church in Utica. No details of that robbery have been reported.

Police made the first of the arrests while responding to the events at the gas station, a Speedway in Shelby Township. Eby was captured at the scene, and Brusseau-Meray was arrested later on following a pursuit that involved a K-9 team. Gerring reportedly turned himself in. Police say that following the arrests they searched a storage locker used by one of the suspects and recovered some of the stolen property.

Police have indicated that they believe the men may have connections to other area robberies. Eby, Gerring, and Brusseau-Meray had bail set at $150,000, $75,000, and $10,000 respectively.

The reports used for this article can be found through the links here, here and here.

- Michael Cronkright

Mr. Cronkright is a trial attorney at Kronzek & Cronkright, PLLC. He represents clients in all criminal matters and Child Protective Proceedings.

Until recently, all registered sex offenders with a single Tier 1 offense were not listed on the Public Sex Offender Registry website. Those Tier 1 offenders still had to abide by all the restrictions that come with being on the sex offender registry, but they were afforded some privacy because the government considers them to be the least serious offenders. One of my legal practice areas is to try to get people off the sex offender registry, and I have not spoken with one registered sex offender who enjoys being listed on the public sex offender website.

However, Governor Snyder recently signed into law Senate Bill 44 of 2013. This bill requires that certain Tier 1 offenders—with offenses involving minors—be listed on the public sex offender website. Now, Tier 1 offenders convicted of the following offenses will be listed on the online public sex offender registry:

1. Possession of child sexually abusive material (kiddie porn)
2. Indecent exposure with self-fondling in front of a minor
3. Unlawful imprisonment/restraint of a minor
4. Surveillance of or distribution, dissemination, or transmission of a recording or image of a minor with the reasonable expectation of privacy
5. A substantially similar offense to the offenses described above under the laws of another jurisdiction

The rationale given for this change is:

“By their nature and inexperience, children make easy targets for predators. Though Tier I offenses are for lower level sexual offenses that do not include rape or sexual contact, certain behaviors such as child pornography, indecent exposure involving fondling, and peeping sometimes precede more serious and predatory conduct. It could be argued, therefore, that allowing public access to information about even low level, first-time sexual offenders who targeted children could enable parents and community members to exercise a little more caution and oversight regarding interaction between these offenders and children.”

As an attorney who represents people on the Michigan sex offender registry, I am disappointed that this law will soon be taking effect. The whole point of categorizing an offense as Tier 1 is because the legislature determined that the offense was not serious enough to warrant placement on the public website.

If I can share my personal feelings about the sex offender registry for one moment, I actually feel like the registry website in general is unnecessary and unfair. The general public has no idea how to determine by looking at the website what an offender actually was accused of doing that landed them on the registry. Many times, the sex crime convictions are based on accusations that are nothing like what the public imagines when they read the SORA. Studies have been conducted that determine that the recidivism rate for sex crimes is not lowered simply because of the existence of a public website. Placement on the public website leads to humiliation, embarrassment, and harassment by others.

Additionally, if a registered offender doesn’t meticulously follow the laws regarding verification of information, he or she can be charged with a felony crime. This traps people in the criminal justice system for many years. As a society, we should be helping people get out of trouble rather than continue to punish them for a momentary lapse of judgment or false conviction.

–Stephanie M. Service

Stephanie M. Service is a criminal defense attorney at the law firm of Kronzek & Cronkright, PLLC. She is knowledgeable about Michigan’s firearms laws, including restoration of gun rights. She practices criminal defense throughout Michigan.

The current law states “operating while intoxicated” is as follows:

• An individual is under the influence of a controlled substance, alcoholic liquor, or other intoxicating substance or a combination of these;
• The person has an alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine; or
• The person has an alcohol content of 0.17 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine (or commonly called “super drunk”).

After the change takes effect, the middle provision will be raised from an alcohol content of 0.08 grams to 0.10 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.

However, House Bill 4093 has been introduced to keep the limit at 0.08 grams. This would need to pass in the House, Senate, and be signed by the governor to become law. If this does not pass, then the new limit will become 0.10 grams as scheduled later in the year.

On another note, if the limit stays at 0.10, the state would risk forfeiting a substantial amount of federal highway construction funds by not being in compliance with federal law. Under the Department of Transportation and Related Agencies Appropriations Act of 2001, states are penalized that have not enacted or enforced a law that considers a person intoxicated who has an alcohol concentration level of 0.08 percent or greater while operating a motor vehicle.

So it’s too soon to start celebrating yet. But it is important for there to be an ongoing dialogue between Michigan voters about drunk driving laws. As with many areas of law, the federal government is in a position to use the power of the purse to put pressure on states to conform to the federal .08 standard. My prediction is that the Michigan Legislature will do whatever it takes to keep the federal funds flowing. We shall see.

Kronzek and Cronkright, PLLC, offers aggressive OWI/DUI defense across the lower peninsula of Michigan, including Ingham County, Genesee County, Oakland County, Macomb County, Wayne County, and more.

Our experienced trial lawyers utilize sophisticated knowledge of alcohol instrumentation and testing to assist in crafting strong legal strategies. We understand how and why these tests may not be reliable—and we challenge the results whenever necessary.

- Michael Cronkright

Mr. Cronkright is a trial attorney at Kronzek & Cronkright, PLLC. He represents clients in all criminal matters and Child Protective Proceedings.

In this case, the defendant, Alan Trowbridge, was charged with five counts of criminal sexual conduct (CSC) in the first degree—the most serious form of the charge. Then the plea bargaining process began, as most cases are resolved this way instead of going to trial. The fact is that courts simply do not have the resources to hold a trial in every case; so courts attempt to resolve as many cases as possible through plea agreements.

The prosecution made several plea offers to the defendant that were all rejected. There was a final pretrial conference where the prosecution made a plea offer that the defendant pleads guilty to two lesser CSC charges as a second offender. This offer was also rejected.

On the first day of trial, the prosecution and defense counsel alerted the court they had reached a plea agreement for the defendant to plead no contest to three counts of third-degree CSC with no habitual offender sentencing enhancement.

However, the court would not agree to accept this plea agreement. First, the prosecutor, defense counsel, and defendant all signed a memo at the final pretrial meeting that stated no pleas to a reduced charge would be accepted by the court after the final pretrial conference. Furthermore, it’s at the court’s discretion whether a no contest plea—that is, a defendant accepts responsibility and punishment for a crime without admitting guilt—is accepted or rejected.

One huge benefit of having experienced legal counsel is that the attorney is accustomed to the policies and practices of each individual court. Every court is slightly different. Every judge also has different preferences and quirks in handling court proceedings as well. This particular court has a strict deadline for entering pleas and would not waive it. The prudent course would have been to inquire about this before the hearing date.

So the defendant went to trial. Two charges were dismissed; and the defendant was convicted on the other three charges. The judge then notified the parties that the statute mandated that the 30-year-old Trowbridge be sentenced to a life sentence without parole for all three counts of first-degree CSC.

The startling fact is that neither the prosecutor nor defense counsel realized that there was a mandatory life sentence without parole to be imposed due to the defendant’s prior CSC conviction until after the completion of the trial.

Experienced attorneys do not rely on the prosecution to do their research for them regarding potential consequences to crimes. Some prosecutors are overburdened with a high caseload or are simply undertrained. But the bottom line is, the prosecutor’s job is to gain convictions and not to look out for the defendant’s well-being. Either way, an effective lawyer is diligent in preparing for every case. The tragedy here is that the oversight was avoidable. The information is very plainly in the statute.

After sentencing, the defendant appealed and requested a hearing regarding making a determination of ineffective assistance of legal counsel. Every criminal defendant is constitutionally guaranteed adequate legal representation by the Sixth Amendment, which is applicable to all states through the Fourteenth Amendment. The U.S. Supreme Court recently reaffirmed that this right extends to the plea bargaining process.

To establish ineffective assistance of counsel, the defendant must show (a) that the attorney’s performance was objectively unreasonable in light of prevailing professional norms, and (b) that, but for the attorney’s errors, a different case outcome reasonably would have resulted.

The second prong—prejudice—could be established if a defendant receives a longer sentence after trial than if he or she had accepted a plea bargain; and by showing a reasonable probability that if given proper legal advice during plea bargaining that the plea would have been accepted.

The expanded test for a rejected plea offer requires a defendant to show that it is reasonably probable that (a) the defendant would have accepted the plea offer, (b) the prosecution would not have withdrawn the plea offer in light of intervening circumstances, (c) the trial court would have accepted the defendant’s plea, and (d) the defendant’s sentence under the terms of the plea bargain would have been less severe than what was imposed after trial.

The court found that the attorney’s performance was objectively unreasonable. However, the court did not find that the oversight about advising as to the mandatory life sentence would have changed the outcome of the case. Defense counsel advised the defendant that if he went to trial he faced a minimum of 30 years and possibly a longer term due to prior convictions—tantamount to a life sentence in the court’s opinion. The final pretrial plea offer would have capped the defendant’s sentence at 22 ½ years, but the defendant would have been required to plead guilty; the court felt there was no convincing evidence to support the defendant would have been willing or able to enter a guilty plea since he maintained his innocence. Not only did the defendant not testify at the hearing whether or not he would have accepted the plea offer, but defense counsel did not know whether the defendant would have pleaded guilty rather than no contest on the first day of trial if the plea bargain deadline had been waived.

I realize in this economy that sometimes people choose attorneys based on fees alone. However, there is a huge difference between 22 ½ years and mandatory life in prison with no parole. Advising clients of consequences of their decision is essential to the process of clients making informed decision. It is shocking to think of someone facing mandatory life and not knowing it. It is even more shocking when the appellate courts refuse to fix the situation.

- Michael Cronkright

Mr. Cronkright is a trial attorney at Kronzek & Cronkright, PLLC. He represents clients in all criminal matters and Child Protective Proceedings.

In addition to armed robbery charges, Belmarez is accused of felon in possession of a firearm, assault with a dangerous weapon, and felony firearm. A felony firearm charge carries a mandatory two year prison sentence which runs consecutive to any other sentence for the other counts. Police say that victims were able to identify Belmarez from a lineup. Belmarez is reportedly being held in Isabella County jail on nearly a million dollars bond, but that number may actually increase as he is arraigned on other charges.

Belmarez will need the assistance of a highly qualified Isabella County Criminal Defense Lawyer. Kronzek & Cronkright, PLLC attorneys practice criminal defense throughout Michigan.

- Michael Cronkright

Mr. Cronkright is a trial attorney at Kronzek & Cronkright, PLLC. He represents clients in all criminal matters and Child Protective Proceedings.

A recent case involving Flint, Michigan man is a case in point. A police chase in late February has resulted in both state and federal criminal charges for Flint resident, Donald Lee Burton. The federal complaint has been filed but Burton has yet to be arraigned. Burton’s state charges include carrying a concealed weapon, felony firearm and fleeing from police. In federal court, Burton will face a charge of being a felon in possession of a firearm.

Prosecutors allege that Burton ran a stop sign on Flint’s east side and then proceeded to evade Michigan State police, only stopping when Burton lost control of his vehicle, went off the road, and was cut off by a police car. After arresting Burton and conducting a search of the vehicle, police found a 9mm handgun that had been reported stolen about four years earlier. Police were tipped off to the presence of the handgun because Burton was wearing an empty holster.

According to prosecutors Burton has a criminal history that includes felony drug charges and fraud in out of state cases. The judge overseeing Burton’s arraignment set bond at $200,000.

As a general rule, most prosecutors will file a “felony firearm” charge any time a gun is used in the commission of a felony. This is a two year prison offense. Here, Defendant is charged with multiple felonies. The most interesting felony is the possession of the gun. A felon is not allowed to carry or possess a firearm unless and until his gun rights are restored. In this scenario, most prosecutors would charge the Defendant with a “Felon in Possession of a Firearm” charge. This crime has a five year Maximum penalty, however, the sentence would run consecutive to the Felony Firearm charge.

With the federal case, the matter gets potentially worse. Generally Defendant facing both state and federal charges run the risk of having a longer overall sentence than necessary. This is due to the fact that the Defendant may only get time served in one of the cases.

All of this points the need for people facing gun prosecutions to have very good defense attorney working for them.

The full article regarding Mr. Burton can be found on mlive.com.

- Michael Cronkright

Mr. Cronkright is a trial attorney at Kronzek & Cronkright, PLLC. He represents clients in all criminal matters and Child Protective Proceedings.

The defendant appealed as of right convictions of two counts of a prisoner in possession of a weapon (MCL 800.283(4)). The trial court sentenced him as a second offense habitual offender as well. Previously, the Court of Appeals affirmed the convictions which were later vacated in part.

Regarding the incident in question, the defendant was a prisoner at Carson City Correctional Facility. The Michigan Department of Corrections (MDOC) found two homemade shanks in the defendant’s cell during a search of several inmates’ cells related to suspected gang activity.

So the defendant moved before trial to suppress a recorded statement from an interview where he admitted to having the weapons. The issue on appeal was whether the trial court erred by ruling the MDOC officer who questioned the defendant was not required to provide Miranda warnings and by admitting the defendant’s confession at trial.

In Fields, the Supreme Court articulated that an inmate’s imprisonment on its own is not enough to constitute custody for Miranda purposes. Restraint on freedom of movement is merely the first step in the custody analysis. Next, the Court compared the relatively coercive environment of an interrogative interview as seen by a free person versus a prisoner. The Court reasoned that an inmate is not likely to experience shock during questioning like a recently-arrested person might. Secondly, a prisoner is not likely to talk to police under the premise that he or she will be allowed to go home if cooperation occurs. Once the questioning stops, the inmate remains in prison. Additionally, questioning a prisoner in private or having an armed escort are not necessarily coercive either. Special security precautions and escorts may be standard procedure in certain correctional facilities.

As for the subject matter—whether the questioning is about criminal activity from inside or outside the prison—the Court saw little distinction. Both may result in criminal liability and punishment, so neither has a great potential for coercion. In sum, the Court stated that the threat to a person’s Fifth Amendment rights that Miranda was designed to address is neither increased nor decreased “by the location of the conduct about which questions are asked.”

The Court said when a prisoner is questioned, the determination of custody should focus on all aspects of the interrogation. This includes the language used with the prisoner in requesting an interview—and how the interview itself is conducted. When an inmate is removed from the prison population for an interrogation and in the course experiences treatment that renders him or her in custody for practical purposes… “will be entitled to the full panoply of protections prescribed by Miranda.” Fields was told at the beginning of the interview he was free to go back to his cell whenever he wanted. Moreover, he was not physically restrained, the door to the conference room was left open, and he was offered food and water. These factors outweighed the facts that Fields did not initiate or consent to the interview and that it lasted five to seven hours past his bedtime. Therefore, the Supreme Court determined he was not in custody for Miranda purposes.

In applying Fields to the present case, the Court of Appeals concluded that the defendant also was not in custody for Miranda purposes. The defendant was removed from the prison population, handcuffed, and confined in an office. However, the interview only lasted for fifteen minutes. Moreover, the questioning was related to gang activity so it was safer to question the defendant alone. In addition, the officer in the case stated that inmates are reluctant to openly speak in front of other prisoners.

Therefore, the Court of Appeals affirmed the defendant’s convictions—finding no Fifth Amendment violation. Ultimately, the Fields case may prove to be more important for inmates in county jails. It is a common police tactic to attempt to question inmates in county jail about crimes being investigated other than those for which the inmate is in jail. This is routinely done even when the inmate has an attorney on the first case. At a minimum, Fields offers a methodology of assessing the Miranda requirements in that environment.

If you need assistance evaluating a criminal appeal, the experienced trial and appellate lawyers at Kronzek and Cronkright, PLLC, are able to help you evaluate your state and federal appellate remedies.

- Michael Cronkright

Mr. Cronkright is a trial attorney at Kronzek & Cronkright, PLLC. He represents clients in all criminal matters and Child Protective Proceedings.