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Speaker 1: We all know our Miranda rights, one being that you

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Speaker 1: have the right to an attorney. Gary Lewis was convicted

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Speaker 1: of arson charges during his preliminary examination. Lewis' attorney was

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Speaker 1: taken off the case. Louis did have an attorney representing

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Speaker 1: him at trial. He's appealing his conviction because he did

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Speaker 1: not have an attorney representing him at his preliminary hearing.

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Speaker 1: And the Michigan Supreme Court is going to hear arguments

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Speaker 1: on the rights of criminal defendants to have an attorney

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Speaker 1: during their preliminary exam joining us as Michael middle stat

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Speaker 1: he is the director the Deputy Director of the Michigan

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Speaker 1: State Appellate Defender Office, which represents Lewis in this case. Michael,

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Speaker 1: let's start by explaining what happens at a preliminary hearing.

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Speaker 1: What happens what? First of all, thanks for having me

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Speaker 1: and happy holidays. What happens at a preliminary examination is

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Speaker 1: a judge listens to a cursory review of the testimony

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Speaker 1: and the evidence against the defendant and makes a determination

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Speaker 1: whether there is enough evidence to buying the defendant over

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Speaker 1: for a trial. Um And it's usually it's a it's

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Speaker 1: a fairly one or two witness situation because the discovery

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Speaker 1: is not complete, but it is a critical stage in

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Speaker 1: our opinion, UM that the right to council is very

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Speaker 1: important at So what happened here? Lewis did have an

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Speaker 1: attorney at the start of the preliminary examination. What happened? Yeah,

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Speaker 1: the preliminary examination began and Mr Lewis expressed dissatisfaction with

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Speaker 1: his counsel. Um. The judge refused to replace his attorney,

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Speaker 1: and he complained too much of to the displeasure of

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Speaker 1: the judge. So the judge ended up taking the defendant

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Speaker 1: out of the room, leaving just the attorney. Well, once

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Speaker 1: that happened, Um, the judge then turned to the attorney said, well,

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Speaker 1: I guess you can leave as well, because not only

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Speaker 1: had you know Mr Mr Lewis was trying to fire you,

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Speaker 1: so I'm going to let you off. So not only

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Speaker 1: did we have a preliminary examination about the defendant, that

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Speaker 1: we had a preliminary examination without any lawyer at all,

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Speaker 1: So he was not represented at all during part of

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Speaker 1: his preliminary examination. That's correct, that's correct. Now your your

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Speaker 1: what is your argument as far as why this should

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Speaker 1: be his conviction should be overturned. Our argument is that normally,

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Speaker 1: when there's a defect in the adequacy of somebody's representation

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Speaker 1: at trial, you have to show prejudice. You have to

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Speaker 1: show that there was some effect on the outcome of

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Speaker 1: the proceedings. There is an exception to that rule that

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Speaker 1: says that if there's a complete denial of counsel at

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Speaker 1: a critical stage of the proceedings, we presume prejudice. And

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Speaker 1: argument is that prejudice should be presumed in this case,

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Speaker 1: and that it's so infected the proceedings that Mr Lewis

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Speaker 1: should be given a new trial. There's a lot that

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Speaker 1: goes on at these preliminary examinations. The state's case is

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Speaker 1: tested um testimony is they have an opportunity to lock

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Speaker 1: in witnesses testimony to impeach them at a later trial.

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Speaker 1: There are plea negotiations that go on. You see lots

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Speaker 1: of please entered prior to the startup or even in

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Speaker 1: the middle of preliminary examination. So that the role of

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Speaker 1: council is very important and and readily important in this situation,

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Speaker 1: and it's our position that that it really infected the

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Speaker 1: entire proceedings in this case. Now the prosecutors the prosecuting

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Speaker 1: attorneys who are defending the convictions say that it isn't

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Speaker 1: a critical stage of the case. If the defendant is

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Speaker 1: later convicted at trial with an attorney present, and that

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Speaker 1: the error is then harmless. How do you answer, how

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Speaker 1: do you respond to that? Well, it's it's our position

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Speaker 1: that takes a very narrow view of what critical stage means.

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Speaker 1: I think there's no dispute really that the Michigan considers

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Speaker 1: the preliminary examination of a critical stage. UM. I think

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Speaker 1: that argument focus is too closely on whether there was

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Speaker 1: movable cause, whether the judge made the right call, or

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Speaker 1: whether there was enough evidence to bind the defendant over.

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Speaker 1: Like I said before, there's so much more that goes

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Speaker 1: on at these proceedings that you can't quantify that um.

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Speaker 1: It's so attacks the structure of the proceeding that we

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Speaker 1: presume prejudice under this Under these circumstances, there's a slippery

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Speaker 1: slope there too, because if we go down this path,

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Speaker 1: if the defendant is then deprived it of council at

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Speaker 1: other stages, then we're going to say, well, we think

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Speaker 1: the evidence was enough and we're just going to affirm

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Speaker 1: his conviction anyways, And where do you stop, where do

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Speaker 1: you draw the line? At some point the sixth Amendment

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Speaker 1: has to be enforced. Michael. It's it's always surprising to

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Speaker 1: me that fifty years after the Miranda Warnings were put

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Speaker 1: into effect, that things like this haven't been nailed down

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Speaker 1: by now. No, that's correct. About thirty years ago was

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Speaker 1: when the U. S. Supreme Court first started to define

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Speaker 1: the contours of the right to council and the ineffective

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Speaker 1: assistance of council of proceedings in what appellate courts to do.

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Speaker 1: And it has been an ever evolving, uh areable law

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Speaker 1: of it. That's correct, new new circumstances as are presented,

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Speaker 1: this is a fairly unique case. I've never seen a

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Speaker 1: circumstance where both the descendants and his attorney were removed

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Speaker 1: from the preliminary examination. Um. So you know, every every

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Speaker 1: case is different. In every case presents a new set

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Speaker 1: of circumstances for the appellate courts to address. And just

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Speaker 1: briefly we have about thirty seconds. Was there another Did

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Speaker 1: you make this request to another court before the Michigan

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Speaker 1: Supreme Court? Yes, the way Michigan is there's the intermediate

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Speaker 1: appellate Court, the Michigan Court of Appeals. We actually prevailed

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Speaker 1: in the Michigan Court of Appeals. They agreed with our

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Speaker 1: argument and they reversed Mr. Lewis's conviction. The state then

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Speaker 1: appealed in the Michigan Supreme Court is now going to

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Speaker 1: take a look at it all right, interesting case. Thank

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Speaker 1: you for joining us here on Bloomberg Law. That's Michael Middlestad,

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Speaker 1: He's Deputy director of the Michigan State Appellate Defender Office.

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Speaker 1: That's it for this edition of Bloomberg Law. Will be

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Speaker 1: back tomorrow, and hope that you will be as well.

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Speaker 1: Thanks to our Tech to Goal director Chris Trike Comey

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Speaker 1: and our producer David Suckerman. Coming up on Bloomberg Radio

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Speaker 1: Bloomberg Markets with Carol Master and Corey Johnson. What do

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Speaker 1: you have forest, Carol High June. Well, we're gonna be

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Speaker 1: taking a look at h G TV beating CNN and

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Speaker 1: the ratings for all of those of you who like

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Speaker 1: fix Her Upper and love it enlisted. Uh, and I

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Speaker 1: was gonna take a look at us consumers holding off

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Speaker 1: buying cars. I love to watch Fixer Upper. I just

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Speaker 1: never get to fix Her Upper to actually do it.

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Speaker 1: Stay tuned for Carol Masser and Corey Johnson. This is Bloomberg,