2011-2012 OCBA Professional Award Recipient
"presented annually to those who exemplify the highest standards of professionalism and/ or judicial practice"
Recent Successes - Trial Level
2015 -The defendant was charged with and tried for three counts of first degree criminal sexual conduct (CSC) and three counts of second degree CSC. The complainant was his thirteen year old son. The trial was conducted over four days. The jury returned verdicts of not guilty on all six charges.
First degree CSC carries a maximum penalty of life in prison as well as lifetime electronic monitoring and lifetime registry on the sexual offender list. Second degree CSC carries a maximum penalty of fifteen years in prison as well as electronic monitoring and sexual offender registry requirements. Instead of facing those penalties the defendant was able to return to his home after the trial and resume his life in peace.
2015 -The defendant was charged with one count each of unlawful imprisonment, a fifteen year felony, assault with a dangerous weapon (felonious assault), a four year felony, and domestic violence, a ninety-three day misdemeanor. The trail was conducted over four days. The jury returned verdicts of not guilty on both felony charges and guilty of the ninety-three day misdemeanor charge. The defendant was sentenced immediately after the jury rendered its verdicts to time served. He was released from custody that same day.
2014 -The defendant was charged with possession of a dangerous weapon (felonious assualt), a four year felony, and possession of a firearm in the commission of a felony (felony firearm), a two year felony the sentence for which must be served consecutive to any other felony sentence imposed. She was found not guilty of both charges following a two day bench trial.
2013 -The defendant was charged with assault with the intent to murder (AWIM, a life maximum felony, and felony firearm. The jury returned a verdict of not guilty of AWIM but guilty of the less serious crim of assault with the intent to do great bodily harm (AGBH). The jury also found the defendant guilty of felony firearm. The maximum penalty for AGBH is ten years. The sentence imposed for the AGBH conviction was from five years to fifteen years because the defendant was a habitual offender. He received a consecutive sentence of two years pursuant to his felony firearm conviction. Had he been convicted as charged his minimum sentence would have been at least twice as high as the one actually imposed.
2012 -The defendant was originally charged with one count each of assault with the intent to commit armed robbery (AWIRA), armed robbery, felon in possession of a firearm while ineligible (felon in possession), possession of a firearm in the commission of a felony-2nd offense (felony firearm 2nd offense), and four counts of felonious assault. AWIRA and armed robbery both carry maximum sentences of life in prison. Felony firearm 2nd carries a mandatory five year consecutive sentence. Felonious assault carries a maximum sentence of four years.
The trial judge dismissed the armed robbery charge upon Mr. McCarthy’s motion for a directed verdict. The jury acquitted the defendant of AWIRA and the firearm possession charges. It convicted him of but three of the four felonious assault charges. He received three concurrent prison sentences of from thirty months to eight years as a second habitual felony offender.
2012 -The defendant was charged with assault with the intent to commit sexual penetration as a fourth habitual felony offender, an offense that carries a maximum of life in prison. After a three day jury trial he was acquitted of that charge and convicted instead of assault and battery. That is a 93 day misdemeanor.
2011 -The defendant was originally charged with one count each of assault with the intent to murder (AWIM), assault with the intent to rob while armed (AWIRA), felon in possession and felony firearm. The AWIRA charge was dismissed following the preliminary examination. At the conclusion of a four day jury trial the defendant was acquitted of the AWIM charge and was found guilty instead of the less serious crime of assault with the intent to do great bodily harm less than murder (AGBH). That crime carries a maximum term of ten years in prison. He was sentenced to serve from nineteen months to ten years in prison plus two years pursuant to his conviction for felony firearm.
2011 -The defendant was charged with one count of assault with the intent to murder (AWIM), a life maximum offense, and one count of assault with the intent to do great bodily harm less than murder (AGBH), a ten year offense, in the alternative. He was also charged with felony firearm, carrying a concealed weapon and possession of stolen property. He was acquitted of AWIM following a four day jury trial. He was found guilty of AGBH, felony firearm, carrying a concealed weapon and possession of stolen property. He was sentenced to serve a minimum term of five years and a maximum term of ten years in prison pursuant to his conviction for AGBH. In addition he was sentenced to serve a two year consecutive term pursuant to his conviction for felony firearm.
Had any of the four defendants described above been convicted of the capital crimes, (i.e. life in prison maximum penalty), with which they were originally charged their minimum sentences would have been at least ten years and six months and could have been as high as seventeen years and six months. The outcomes of each of those trials were substantially beneficial to the respective defendants.
Recent Successes - Appellate Level
2015 -The Michigan Court of Appeals reversed the defendants sentence of from twelve years to twenty years imposed pursuant to his conviction for attempt first degree home invasion as a fourth habitual felony offender because the trail judge employed the minimum sentence guideline range that was applicable to first degree home invasion and not an attempt to commit that crime. Upon resentencing the trial judge imposed a minimum sentence of forty months and maximum sentence of ten years in prison. The defendant received a reduction in his minimum sentence of 104 months or eight years and eight months.
2014 -The Michigan Court of Appeals reversed the defendants sentences of from fifteen years to twenty-five years in prison imposed pursuant to his convictions for carrying a concealed weapon and being a felon in possession of a firearm while ineligible as a fourth habitual felony offender. The Court of Appeals reversed those sentences because the trial judge failed to articulate substantial and compelling reason to support the extraordinarily severe sentences he imposed.
2014 -The Michigan Court of Appeals reversed the defendants consecutive sentences of from 217 months to forty years, pursuant to his conviction for first degree home invasion, and of from eighty-seven months to forty years imposed pursuant to his conviction for conspiracy to commit armed robbery, both as a third habitual felony offender, because the cases upon which that enhancement were based had been dismissed following the defendants successful completion of probation as a Holmes Youthful Trainee Act participant. Upon remand the trail judge resentenced the defendant to server from 145 months to twenty years in prison pursuant to the first degree home invasion conviction. She then imposed a consecutive sentence of from eighty-seven months to twenty years pursuant to the conspiracy conviction. The net benefit to the defendant was a reduction of six years from his combined minimum sentences.
2012 -In five separate cases, three in the Wayne County Circuit and two in the Oakland County Circuit Court, the defendant’s constitutionally guaranteed right to appeal his jury trial based convictions and sentences was lost due to a combination of judicial, clerical or attorney errors. Mr. McCarthy was successful in each of the motions he filed and argued on behalf of those five criminal appellants to have their individual right to appeal reinstated. Each of those appeals is currently pending before the Michigan Court of appeals. Had those motions been denied, or not even filed, each of the five appellants would have lost their constitutionally guaranteed right to have their appeal decided by the Court of Appeals after full briefing and oral argument.
2012 -The Court of Appeals reversed the appellant’s sentence to life in prison imposed pursuant to his conviction for one count of second degree home invasion. The trial court judge who imposed that severe sentence stated that he was doing so because of the defendant’s extensive prior criminal record. A resentencing hearing was conducted before a different circuit court judge following remand. At that time the defendant received a sentence of from eleven years to thirty years in prison, a substantial reduction.
2005 -Post appellate relief was granted to the defendant due to the ineffective assistance of his trial level attorney who failed to seek the dismissal of six counts of first degree criminal sexual conduct due to the expiration of the applicable statute of limitations. The Michigan Supreme Court reversed the defendant’s convictions and sentences. However, he had already served nearly twelve years in prison on his six concurrent sentences of from six years to twenty-five years when the Michigan Supreme Court issued its order.
An evidentiary hearing was conducted in the Oakland County Circuit Court upon remand. The trial court judge dismissed the charges brought against the defendant with prejudice following that hearing. He was released from prison custody that day.
In The News
2015 -September, Detroit Free Press, Detroit News and Oakland Press Re: People v Ruth Pozdol
2015 -September, Detroit Free Press and Detroit News Re: People v Robert M. Bashara
2015 -July, Detroit Free Press, Detroit News and Oakland Press Re: People v Jeffrey Maurer
2014 -September through December, Detroit free press and Detroit News Re: People v Robert M. Bashara
2013 -June, Detroit Free Press, Detroit news and Oakland press Re: Mitchell Jordan Young
2012 -June, Detroit Legal News, Re: Receipt of Oakland County Bar Association's 2012 Professionalism Award.
2012 -May, June and September, Detroit Free Press, Re: People v Mitchell Jordan Young.
2011 -April, Detroit Free Press, Re: People v Nolan Ray George
2010 -January, Detroit Free Press, Re: People v Steven Michael Kelsey
2006 -September, Detroit Free Press, Re: People v Steven Michael Kelsey
2004 -March, Detroit Free Press, Re: People v Nikole Michelle Frederick
2015 -Polish-American Advocates Bar Association. Topic: Representing criminal defendants in high profile cases.
2015 -Co-presenter at Oakland County Bar Associations Criminal Law Committee Seminar. Topic: Voir Dire.
2013 -Co-Chairman and presenter at Oakland County Bar Association’s Bench/Bar Conference, Criminal Law Section.
2013 -Lecture given for Oakland County Bar Association’s Criminal Law Committee. Topic: Appellate Practice.
2012 -Appointed to Oakland County Circuit Court Criminal Law Committee.
2011 -Presenter at Oakland County Bar Association’s Bench/Bar Conference, Criminal Law Section.
2010 -Chapter coauthor of Michigan Criminal Procedure, published by the Institute for Continuing Legal Education.
2010 -Lecture given for Oakland County Bar Association’s Criminal Law Committee re: The Suppression of Confessions.
2010 -Appearance on Practical Law, Bloomfield Cablevision, to discuss confessions given by criminal defendants and the suppression of those statements.
2002 -Laches article entitled Cooperation: The Road to Parole for Drug Offenders Sentenced to Life.
2001 -Lecture given for Oakland County Bar Association’s Criminal Law Committee. Topic: Sentencing guidelines.
1997 -Lecture given for Oakland County Bar Association’s Criminal Law Committee. Topic: Basic Skills for Criminal Trials.