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Contoversial cases/ Alan Schneider

Anne Stanton - March 7th, 2011
Controversial Cases:Prosecutor Alan Schneider on recent decisions that raised a ruckus
By Anne Stanton
 Whenever there’s a public flap over a sentence—whether too long or too
lax—the public often looks at the judge or jury to ask what happened.
Yet long before a case ever gets to a courtroom, the prosecutor and his
staff must review the police investigation and decide quickly on a
suspect’s fate.
A prosecutor is known as the chief law enforcement officer for good
reason. It is he who decides if there is enough evidence to bring charges
or to offer a plea bargain. A key question is this: will the plea bargain
result in a misdemeanor or felony charge? The distinction couldn’t be more
crucial. A convicted felon can’t vote in most states. A felon must admit
his crime on job applications. And felons can’t easily travel outside the
United States, as most countries won’t allow a felon to come in.

The topic is relevant now because recent cases have raised the ire of some
members of the public. One in particular involves the recent plea bargain
with Grand Traverse County Sheriff’s Deputy Kipp Needham, who last June
behaved in a bizarre manner after an evening of drinking wine with his
wife. His early morning violent assaults of his wife, a close relative,
and a Michigan State trooper were originally charged as a four-year felony
and three misdemeanors, but later reduced to one misdemeanor of resistance
and obstruction to a police officer.
Needham, who punched and choked the state trooper, was sentenced to six
months in jail—after 45 days, he is eligible for community corrections
Also in the news was 19-year-old Garrett Loveland, who flashed a knife at
a Traverse City gas station in an attempted robbery. Loveland, with only a
misdemeanor on his district court record (disturbing the peace), was
recently sentenced to a minimum of 42 months in prison for armed robbery.
Some fear for his safety in prison, while others believe that the term is
an excessive and expensive one for taxpayers at a cost of about $33,000 a
The reasons for these outcomes and others? Grand Traverse County
Prosecutor Allan Schneider explains why.
NE: The defense attorney for Kipp Needham wrote in court documents that a
side effect of an anti-fungal medicine might have caused Needham’s violent
and aberrant behavior since excessive drinking didn’t explain it.
Needham’s blood alcohol at .09 was below the legal limit. He was
reportedly taking ketoconazole orally, not as an ointment.  (Although
rare, neuro-psychiatric disturbances have been known to occur with this
medicine.) What are your feelings on this?
Schneider: I don’t believe that it would have established a legal insanity
defense, but the coincidence of using ketoconazole at the same time this
bizarre event occurred certainly gives you pause, and it did. The bottom
line is we had a 35-year-old man with no criminal record. The criticism
that I’ve heard is that he was allowed to plead to a misdemeanor simply
because he was a deputy and that’s not true.
What escapes everybody is the resolution was consistent with the other
cases involving resisting and obstructing that I’ve prosecuted. If he had
stayed in circuit court with a felony, his sentence would have been zero
to six months. With a misdemeanor, he’s in district court, with no
sentencing guidelines. In that case, a judge could give him up to a year
in jail.
The actual sentence he received was at the top of the guidelines.
Criticize me for the resolution, but don’t say it’s because someone got
special treatment because he was a deputy. I had 57 cases in 2010,
involving resisting and obstructing a police officer. Out of those 57, 52
were resolved or charged as misdemeanors or dismissed entirely. The four
remaining also involved other felonies, such as fleeing and eluding and
drunk driving. They were all habitual offenders and had criminal records.
I’ve got these 57 cases and Kipp Needham certainly falls within that group
of cases that were resolved as misdemeanors. That situation would resolve
itself as a misdemeanor regardless if he were a deputy.
NE: There was a 2009 case involving a man by the name of Thom Corso who
came into Northern Express last spring. His story is long, but the
relevant part is this: In October of 2008, a deputy came to Corso’s door
to serve a Friend of the Court warrant. The deputy and Corso both agreed
during court testimony that Corso was willingly handcuffed and walked
cooperatively to the car. Once in the car, the accounts differ; Corso said
he kicked out the police car window because the officer slammed the door
on his toe and he kicked it with his left foot to get the door open. The
deputy said he had to use a pressure point to get Corso entirely into the
car, and pepper sprayed him after Corso repeatedly kicked at the door and
window. (See sidebar for details).
Following the incident, Corso was charged with two felonies: malicious
destruction of police property and obstructing and resisting a police
officer. Corso said that he declined a plea bargain because he’d still
have to plead guilty to a felony and the lawyer thought he stood an
excellent chance in front of a jury. He was wrong.
The question is, here’s a guy with no criminal record. He didn’t slug or
choke another police officer as Needham did, and he obviously did not
assault his wife. He didn’t even touch the police officer in a hostile
way. But Corso was not allowed to plea bargain to a misdemeanor. Why the
Schneider: At the final conference, we offered him a plea bargain of
attempted malicious destruction (a misdemeanor) and attempted resistance
and obstruction, which was still held to a felony. Subsequent to that, my
assistant prosecutor recollects offering him two misdemeanors, but his
lawyer said he didn’t want to plea. Yeah, there’s an argument there. If he
got a raw deal, it has nothing to do with Needham. I won’t argue with him
that it could have gone either way. But I don’t think it’s so much that
Needham got a better deal, but that Mr. Corso got a worst deal than
everyone else.
But when you look at Mr. Corso’s attitude, you gotta’ wonder. Was he
prepared to plead to anything?  Even at the time of his sentencing, Mr.
Corso accused the deputy of being physically and verbally abusive, claimed
the deputy shut the door on his leg, which caused him to “accidentally”
break the window.  When you plead guilty, it is necessary to admit some
wrongdoing, and it didn’t seem like he wanted to do that.

NE: It seems that in Needham’s case, there could have also been an assault
charge, in addition to resistance and obstruction.
Schneider: I don’t want to minimize this. It was a tense situation for the
trooper. Obviously. Needham did grab him around the neck and was choking
him. But that was very short lived, while Needham had multiple injuries.
I’m not criticizing it, but the injuries to Needham were much more severe
than to either of the troopers.
NE: Why didn’t you charge Needham for the alleged assault of his wife?
Schneider: His wife just did not want to proceed on that, she immediately
didn’t want to proceed; she didn’t want that. That doesn’t mean we won’t
proceed when a wife or girlfriend asks us not to. But in this case, he was
being convicted of another charge. He pled guilty to a one-year
misdemeanor, and if he were convicted of the domestic assault charge, that
would have been a 93-day misdemeanor. And this is what escapes everybody.
One of the reasons we use the misdemeanor, is because of sentencing
guidelines. In circuit court, the sentence will work out to about the
same, and this has nothing to do with Needham’s case, but we use a lot
less resources with a misdemeanor and we get the same punishment.
Everything costs more with a felony; you have more court proceedings,
court-appointed attorney fees are higher; everything costs more. If I
charged like some counties did, I could double my felony convictions, but
I don’t work that way.
NE: Here’s another case I wanted to ask you about. A man (Jeremy Dimarzo),
previously arrested multiple
times for assault, was getting ready to perform a cage fight at a local
night club. But before doing so, he got into an argument with another man
he knew by the name of Dan Smiddy, also with a police record. According to
Smiddy’s statement to police, Dimarzo kept asking why Danny’s younger
brother no longer wanted to be his friend. Finally, Smiddy told Jeremy
Dimarzo it was because he was a “snitch and a bitch” at which point
Dimarzo slugged him in the face. Dan’s father came to the Express with a
photo and to complain that you failed to charge Dimarzo with assault.
Schneider:  I remember that case. An employee who saw what was going on
told police that Smiddy kept getting in this guy’s face, challenging him
to a fight. He wouldn’t let up and Dimarzo finally threw the first punch
and they had to restrain Smiddy from fighting back. It’s not legal
justification for the punch, but there are some cases that aren’t provable
because of the conduct of the parties. Juries are not going to waste their
time. We always provide a reason when we don’t charge someone, and, in
this case, I decided that prosecution was unlikely. (Smiddy vehemently
denies this version of events.)
NE: In terms of proof, there were witnesses and also Dimarzo admitted on
Facebook that he punched Smiddy [see sidebar].
Schneider: Facebook—that’s all intrigue. That’s not going to go anywhere;
it’s back and forth stuff.
NE: Let’s talk about the Garrett Loveland case. He was sentenced to
42-to-180 months in prison for flashing a knife at a Mutual Service
Station and demanding money. When the woman was unable to open the safe,
Loveland continued to demand money and threaten her. He ultimately fled
the scene, taking a few packs of cigarettes. 
I have heard arguments that this was his first felony and that a shorter
sentence would have more of a rehabilitative effect. Some fear that he
won’t be able to survive nearly four years in state prison. How does
flashing a knife and stealing cigarettes compare with slugging and
choking a state trooper?
Schneider: I can’t compare armed robbery with a drunken suicidal episode.
Armed robbery, murder, rape and robbery—those are the violent crimes that
really have an impact on communities. And if that’s your first major crime
you commit, you really picked a big one. That’s my way of looking at it;
armed robbery needs a prison sentence.  The judge imposed the
sentence, and I don’t think it’s necessarily long. He can do 42 months,
and, if he behaves himself, he’ll get out.
It is my opinion that anyone should go to prison for armed robbery, and I
think the judges agree. Armed robbery is a life offense, it’s a serious
offense, and it has ramifications beyond what the person committing the
robbery understands. These are urban crimes that you just have to address
more sternly than property crimes.
We had a couple of young females who went to a Subway Shop with a BB gun
and we allowed them to plead to unarmed robbery that would still guarantee
a prison sentence. That’s the only time I recall reducing it to something
less. We want to make sure there’s a prison sentence.
NE: In another case, a Traverse City girl and guy were dating at an area
high school. They had a falling out, and he showed his friends a partially
nude picture that she had sent him earlier over a cell phone. She was 17,
he was 15. Under state law, the girl had actually committed a felony,
which could earn her a place on the sex offender registry and up to 20
years in prison. 
Schneider: The idea of her sending a picture of herself topless to her
boyfriend, we would never charge that. It’s not what the law intended to
do. The law’s intent was to ban the distribution of sexually explicit
material of children. We concentrate our efforts on those who are
exploiting children, which can include under-aged sexual conduct when
force or coercion is used.
Some of these other things that happen among teenagers are not our focus;
we’re not going to use judicial resources. That’s something that parents
and schools can straighten out themselves. It’s like under-aged sex; we
don’t charge a boyfriend and girlfriend having sexual intercourse as
teenagers. Theoretically we could, but we don’t do it. We’re looking for
real crime.
Next week, the Express will run an interview with retired 86th District
Judge James McCormick about his views on the delicate issue of crime,
courts and police officers and when it involves one of their own.
A Social Network Confession

Facebook postings regarding the alleged assault of Dan Smiddy
Jeremy Dimarzo allegedly slugged Dan Smiddy of Grand Rapids in the face
just before he was to appear in a cage fight at a Traverse City nightclub.
Dimarzo was escorted out of the nightclub, but never charged, with the
prosecutor determining it wasn’t provable. Here’s what Dimarzo wrote on a
Facebook page, repeated verbatim:

“My guy didn’t show up so I had to beat someones ass out of the cage lol.
Dan Smitty UR A BITCH …. Well guess what yall. Just to prove to U that Dan
is a bitch i have a cop trying to get ahold of me cause dan is pressing
charges. What a pussy. …. Dan smitty was running his mouth bro. Had to
shut him up. I hate that bitch.  Just had to talk to the cops. Dan is a
bitch and is pressing charges like a ho.” -- Jeremy Dante Dimarzo

A Just or Partial System?
Two recent court cases draw questions after sentencing

When Thomas Corso read a recent newspaper article about Deputy Kipp
Needham’s pleading guilty to a misdemeanor charge to his friend, he went
into the bathroom and threw up.
“Seriously, it was so utterly disturbing. When they treat their own so
differently than the rest of us, it shows contempt for the people who pay
their salaries. They seem willing and able to do anything and everything
they want at any time and they get a pass. Every time. If it were me, I’d
never see the light of day for the rest of my life.”
Corso, in fact, was charged in 2008 with two felonies—resistance and
obstruction of a police officer and malicious destruction of police
property. Unlike the vast majority of these kind of cases, Corso was only
offered the option of pleading guilty to a felony.
As background, Corso was involved in an ugly 2006 divorce in which he
continually contested payment terms imposed by Friend of the Court,
believing the judicial process was deeply flawed.
But the path was stressful. Corso became increasingly angry as his
accounts were emptied and ended up in jail several times for missing
Friend of the Court payments. In August of 2008, Deputy Aaron Dankers was
involved in a PPO violation in which Corso dropped off some clothing in
the driveway of his ex-wife when she wasn’t home. During the same time
period, he had also violated the PPO by going to her office three times to
get copies of their children’s insurance cards and to hand-deliver
subpoenas to his ex-wife and her boss in anticipation of a court date.
Later in court, Corso pointed out inaccuracies in Dankers’ police report,
which he believes angered him.

Two months later, Deputy Dankers showed up at Corso’s home with a warrant
for his arrest regarding a Friend of the Court payment. The arrest began
in a tense atmosphere; the dog was barking, Corso’s young daughter was in
the house, and Corso’s girlfriend was upset. Corso tried to partially shut
the door to shield his daughter from the scene and to empty his
pockets. Corso alleged that Dankers angrily used profanity, ordering him
to leave the house. Both men agreed that Corso cooperatively walked to the
car,  although Corso tried to talk Dankers out of the arrest, saying the
warrant was in the court system for review.      
He said that Dankers responded, “I don’t give a shit.”
Corso said the deputy unnecessarily shoved him in the car; Dankers said he
had to put pressure on Corso’s jugular area because he wouldn’t get
entirely in; he still had to shut the car door in order to push his foot
inside. Corso testified that the car door slammed on his second toe,
triggering him to kick the door to relieve the pressure, thereby blowing
out the door window.
Corso said that Dankers then pepper sprayed him in the face, dragged him
by his neck out of the car and kicked out his knees, causing him to fall
on the shattered glass (he had no facial cuts, however) and then put a
knee in his back while he called for a back-up deputy, who arrived minutes
later. Corso did not complain to jail staff about his toe, but provided
the jury with pictures of his black and blue toe with the missing nail.
Dankers and Corso both denied they used profanity.
Assistant Prosecutor Jim Pappas told the jury that Corso had earlier
violated a PPO and obviously had no respect for court orders; this case
was no different. Corso was particularly irate that Pappas failed to
mention that Friend of the Court had found that his ex-wife actually owed
him almost $700 per month retroactive to July 2007. “I can state this
because I am the one that handed them to Jim Pappas personally.”
Pappas did tell the jury that it’s a deputy’s job to serve the warrant,
not to determine whether the warrant is justified.

After a half hour of meeting, the jury unanimously found Corso guilty on
both counts. Corso appealed the decision to the Court of Appeals, but the
court let the decision stand, writing that raising the issue of the PPO
violation was “arguably improper. However, the trial court subsequently
instructed the jury on the proper use of this evidence.”
In the end, Corso was sentenced to 90 days in jail and fined $1,074.  But
his appeals to the state Court of Appeals and the state Supreme Court
escalated his fines to $5,000.
Once the owner of a contracting company and an expensive home on Old
Mission Peninsula, Corso is now living with friends in Utah and looking
for work. He is estranged from his two daughters, has broken up with his
girlfriend and remains bitter and very angry.
“I’m a felon for the rest of my life, and I don’t even know all the
implications. I know I can’t find a job. I have to list my felonies
everywhere I go. I left Michigan a week ago on my way to California to
create a new life. Four years in a courtroom kind of drains you. I’m
living off my savings account and filling out applications for in-house
maintenance.  I’m homeless. I have $4,000, my car and my clothes.
“I left Michigan because I am seriously scared to be there. You have a
bulls-eye on your back. Every time I hear a siren, see a car, I think
they’re coming to get me. I’m scared to death.  Michigan is toxic to me.”

Deputy’s Dilemna
Until June 1, 2010 Grand Traverse County Sheriff’s Deputy Kipp Needham had
a completely clean police record, but that all changed in the early
morning hours. Michigan State Police Trooper Travis Peterson wrote in his
police report that he was dispatched at about 2 a.m. on a domestic
complaint to Needham’s Acme Township home. When he arrived, Needham was
lying in the driveway. Peterson shouted orders at him, and Needham slid a
cocked and loaded semi-automatic pistol down the driveway, and shouted
back: “You’re going to have to kill me mother f***.”
Peterson drew his Taser and placed the red laser dot on Needham’s chest
and ordered him to the ground. Needham failed to comply and ran away.
Petersen did hit him in the left thigh with the Taser. Needham fled to the
back of the home, tripped on something, and landed on the deck. Peterson
grabbed him by the back of his pants. Needham turned and slugged Petersen
several times in the face and choked him, yelling, “I’m going to f** kill
you! F** State Police finally comes out of the woodwork! You’re not hiding
in Benzie County tonight, you mother f**!”. Michigan State Trooper Bert
Richards arrived at the rear of the residence and attempted to put
handcuffs on Needham, who attempted to choke Peterson again, at which
point Peterson struck him repeatedly in the face. Needham continued to
resist while Richards held him on the ground. The troopers reported that
Needham slurred his words and reeked of alcohol.
Needham was taken to Munson Medical Center where he was stapled and
stitched for multiple facial lacerations. Peterson suffered a laceration
to his right hand and to his mouth, as well as red marks where Needham
choked him.
Peterson objected to the light sentence, writing a lengthy statement for
the court that included this: “My greatest concern is the defendant will
retain his position as a deputy with the Grand Traverse County Sheriff
Department and possibly be sent as Trooper Richards’ or my backup to a
critical incident. It is not fair to ask Trooper Richards or me to put our
lives in the hands of the defendant who attempted to end them. Due to his
own actions, the defendant no longer has our trust or respect.”
*Needham was allowed to go on work release shortly after he was
incarcerated in Leelanau County Jail on February 16th. Leelanau County
Sheriff Michael Oltersdorf said that although Needham committed a violent
crime, he was convicted only of a misdemeanor and qualified as a minimum
security risk under established criteria and was treated no differently
than anyone. Needham was suspended from the Grand Traverse County
Sheriff’s Department with no pay after the assault and is currently
working with a towing company in Traverse City. It’s possible he will
only serve 45 days in jail, as the judge may allow him to stay at home
during the community corrections portion of his sentence, Oltersdorf

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