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Does our justice system need fixing? 3/28/11

Anne Stanton - March 28th, 2011
Does Our Justice System Need Fixing? A retired judge weighs in
By Anne Stanton
 Slugging and choking a Michigan state police trooper gets a local deputy a
six-month jail sentence with almost immediate work release. He’s given a
plea bargain that involves a guilty admission to a misdemeanor. His record
was clean.
Flashing a knife in an attempted gas station robbery gets a 19-year-old
man a minimum of 3 1/2 years in state prison. No plea bargain offered. He
had a single prior misdemeanor (disturbing the peace) on his district
court record, but a history of taking illegal drugs.
Kicking out a police car window gets a man two felony convictions and six
months in jail. The man rejected an offer to plead guilty to a felony. He
did not admit guilt, saying he kicked a police car door because it had
been slammed on his toe. The deputy testified the man resisted getting all
the way into the police car, so he closed the door to get the man’s foot
inside. The man had no criminal record.
These disparities recently prompted the Northern Express to interview the
Grand Traverse County prosecutor about why he made the charging decisions
in each case (“Controversial Cases,” 3/7).  Triggering the discussion was
the sentencing of Grand Traverse County Sheriff’s Deputy Kipp Needham, who
assaulted his wife and a Michigan State Police trooper last June (the
deputy was fired from his job last week). His case was contrasted with
that of Thomas Corso, who was convicted by a jury in 2009 of two felonies
for malicious destruction of police property (kicking out the police car
window) and resisting arrest.

This week, Judge James McCormick, who served in the 86th District Court
for 24 years, talks about the delicate relationship between the police,
courts and the prosecutor.
NE: Recently, the Grand Traverse Prosecutor said a person’s attitude gets
tremendous weight when it comes to a plea bargain -- they must feel and
express remorse because they are admitting guilt.
McCormick: If someone’s attitude is very, very cocky and defiant that will
affect the prosecutor’s charging decision and the judge’s sentencing a
lot. We are very much affected by a defiant attitude as opposed to a
person who is remorseful and taking steps to change their life.
Two people can do exactly the same thing -- one is a model citizen, the
other has had lots of chances, but keeps coming back. Each time the court
is going to get harder on them. Some people only respond to harsh
punishment; they don’t respond to anything else. To understand the great
majority of anomalies that appear in the media about sentencing and
charging decisions requires a real understanding of the defendant, his
criminal history, his attitude, and what exactly the person did in the
I would also add, just from my observation of the newspaper accounts of
the last decade, that I’m inclined to believe that there have been a
number of incidents of favoritism shown to people in law enforcement. To
me, it’s pretty clear, although I certainly wouldn’t name names or cases.
The Record-Eagle has unearthed a number of things in Benzie, Antrim,
Leelanau and Grand Traverse counties. I strongly suspect, in some
instances, there has been real favoritism unfairly shown to law
But I think you really have to know more. The media has to delve into
comparisons of apples and apples. So often, there is a huge difference in
the three main factors that go into charging or sentencing decisions. The
defendant’s criminal background or lack of it, his attitude going into the
future, and the precise facts of the case.
NE: Given the tight-knit web of judge, prosecutor and police, isn’t it
difficult as a judge (and perhaps a prosecutor) not to give preference to
a police officer’s testimony?
McCormick: Yes, it is. I felt as a judge, I had to be on guard not to
make, in a hundred ways, small rulings -- not to bend to what would please
the police or the prosecutor, particularly the police.
Judges like a good relationship with the police and the police court a
good relationship with the judges, I can assure you of that. It makes it
more likely that the courts will see things in the police officer’s way. I
felt in my 24 years as judge that I had to be very much aware of that
temptation all the time and to resist it.
For the most part, police officers are straight shooters, trying to do the
best they can in a very difficult and dangerous job. But I saw many
instances of over-reaching and self-serving behavior on the part of
certain officers, and playing loose with the truth. I saw enough instances
that go on, treating different people differently, according to who they
One needs to be skeptical and hold a healthy skepticism of what goes on
among the police and the prosecutor’s office and the courts. It’s very
important just to keep everybody in the system honest. We all have to be
willing to be scrutinized, too. I still serve in the Manistee court each
week, so I put myself in that circle.
NE: When it comes to weighing both sides of the story, do you think that
jurors give more weight to a police officer’s testimony?
McCormick: Anyone who works in the system and sees how juries decide
issues knows that the great majority of jurors have a lot of respect for
and trust in police officers and, of course, they don’t know the defendant
at all.
Although the law gives the defendant the benefit of the doubt, juries
don’t necessarily do that. If it’s a criminal case, many jurors’ first
impulse is, “What kind of scumbag do we have today?” That’s particularly
true going into a trial, but during the trial, jurors are observing
behaviors, listening to the cross exam, listening to witnesses. 
If a police officer acts cocky or appears to be fencing with the defense
attorney too much, avoiding answers, the jury will be quick to see that.
After they meet defendants and watch how they present themselves, they may
end up liking this person and believing them.
NE: Any specific thoughts on the Needham case?  Would it have qualified as
an assault?
McCormick: It might qualify as assault with intent to do great bodily
harm. Given the three factors I mentioned, Needham would score real well
on the background, his lack of a criminal record. He’s 35 years old, clean
as a whistle, so he would get a lot of points for that as any defendant
would. If you were a teacher and this incident happened, you’d get
consideration from the prosecutor for that fact alone. He had a .09
alcohol level, not enough to cause someone to act so strangely. That’s
just barely intoxicated.
Apparently, he has never done anything in his life that would be
comparable, or showing he was capable of doing this. That gives credence
his claim that anti-fungal medicine was a factor in his assaultive
behavior.  I have heard of stranger things. Maybe the medicine coupled
with a minimal amount of alcohol would put someone over the top.
Yet Mr. Schneider arguably accepted it without examining it, without
examining whether the explanation had any merit. But the fact that he
(Needham) had never been in trouble with behavior so outrageous and
behaved so out of character as to crawl on his belly… I’ve had a million
drunk drivers in front of me, and I’ve never rarely seen anyone with that
borderline intoxication to be crawling on the ground, much less attacking
a police officer. It’s very bizarre behavior, especially for someone with
no record and blood alcohol at the bottom level of intoxication. Maybe it
was the antifungal medicine. I don’t know.
I concur with the prosecutor that a high percentage of charges that
involve resisting arrest or assaulting a police officer are pled out as
misdemeanors, especially in the absence of a serious police record.
NE: Concluding remarks?
McCormick: There are a lot of injustices in the system, and it’s true
under the best system you can devise. You try to keep it to a minimum, the
media being a watchdog.  It’s hard for the average citizen to get enough
information to evaluate whether it’s fair or favoritism on any particular
case. The variables are almost infinite. It is not an exact science -- it
can’t be done by a machine or by a computer. But it is good for the media
to keep a watchful eye on all of us in the “system.”

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