Spun Jury: The State's Reformed Case vs. Darrick Cole Lilleberg

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I have been closely following an interesting criminal case over the last year, it finally came to a jury trial this last week, with jury selection and instructions occurring on Wednesday and the actual trial that took place on Thursday.  I attended both days and witnessed a travesty of justice occurring, not by the great folks of the community that served diligently on the jury, but by the two prosecutors who ran the court and reset the jury instructions to serve themselves and guarantee a conviction after both parties closed their case.

Darrick Cole Lilleberg (pictured above just before his arrest) was the defendant, charged with a misdemeanor of being a disorderly person, and three felony counts of resisting and opposing police officers (corresponding to LPD Officers Austin Morris, Sue Maltbie and Conor Gallihugh) who chose to arrest him early on the morning of September 19, 2021 on the same side of the 100 block of West Melendy Street that multiple LPD officers unlawfully arrested Devin Wakelin twice earlier that year.  Blue lightning would strike the same place at least three times in 2021, as we will see when we review the facts at this jury trial, where you will have the seat of the fourteenth juror.

Jury Selection

"When you go into court you are putting your fate into the hands of twelve people who weren't smart enough to get out of jury duty."  --Norm Crosby

The rows of pews were filled with a cross-section of our community when I took a seat at the courtroom at the Mason County Courthouse for my first introduction to the jury selection process.  Assistant Prosecutor Beth Hand was seated with LPD's Austin Morris at one table, while Lilleberg and his court-appointed lawyer, Becky Lederer, sat at the other.  After 51st Circuit Court Judge Susan Sniegowski came in they started by swearing them in and asking about whether they had any sort of relationship with any of the potential parties and witnesses, had prejudicial (good or bad) experiences with the justice system, or whether they had medical issues.

In a random process they selected 13 people to sit in the jury box and the alternate seat.  Those who had raised their hand for either 'potential disqualifier' were asked to elaborate, which led to some being dismissed on that basis, by either the judge or by either party.  When spaces opened up another random juror was seated and reviewed by the court and the attorneys.  They weeded out quite a few and agreed to thirteen people only after going through all but three of the jury pool seated.  The rest of the afternoon was effectively instructing the jury on how to do their job and giving them information on what they needed to know in judging this case and about elements of the law.  Both sides' attorneys had input into the process and agreed on the instructions that were to be used the next day at trial.

Jury Trial

"No one gets it, everyone's life is f-king perfect."  Darrick Lilleberg, 9-19-2021

The trial began on Thursday a little after 9 AM due to some sidebars between the judge and the attorneys.  Prosecutor Hand, well experienced in her craft led off with an opening statement appealing to the reason and empathy of the jury, relating her certainty of the guilt of the defendant and how the evidence could not lead to any other interpretation.  In contrast, the defense deferred their opening comment for later, to be eventually used before the prosecutor's closing statements.  The two personalities of the attorneys contrasted sharply, Hand projecting an extroverted, self-assured persona, Lederer acting milder and more introverted than one might expect from an attorney arguing for their client's freedom.  

The prosecutor's case hinged on the bodycam footage of Officer Morris and Maltbie showing an out-of-control Lilleberg being obnoxious and 'disorderly' in the incident and requiring intervention by the officers.  The police report and the officer's testimony (along with Officer Gallihugh's supporting testimony and footage) left less of an impression than what those two cameras caught that night.  The case would hinge on which side could better explain what happened on the videos and how Michigan law favored them.  Be advised, there is a lot of swearing by Lilleberg and some violence after Officer Morris informs him that he's under arrest, shortly after his bodycam malfunctions, but the rest of the action is caught on Maltbie's bodycam.  

Prosecutor Hand would certify that the conduct of Lilleberg was clearly disorderly and disturbing the peace of the neighborhood and noted that the behavior of Lilleberg after the scuffle fit the elements of resisting arrest for each officer involved.  Attorney Lederer would agree that the behavior was obnoxious and loud, but had the jurors note that the action never took place on the street or other 'public place'.  

The reason Lederer keyed in on that particular was that the disorderly person statute relied on the conduct happening in a 'public place' (section 1(e)) and this caused a bit of discussion since the action happened on private property.  It led to a sidebar where the jury was removed and Lederer keyed in on the elements for 'disorderly' conduct agreed to, which indicated that the conduct must take place on a street or other public place.  She asked Judge Sniegowski for a directed verdict since none of Lilleberg's conduct caught on camera occurred in those spaces.  

This simple distinction would make the arrest unlawful, since no crime had been witnessed by the officers and certainly not disorderly conduct in a public place.  The Michigan Supreme Court made a ruling in 2012 in a case called People v. Moreno. One has an absolute right to resist (even physically at times) any unlawful Police action, including arrest.  Lilleberg's passive resistance of keeping his arms under his body to prevent handcuffing on the ground would be within the law if the arrest could be shown to be unlawful.

Recall when I said in the first paragraph that two prosecuting attorneys were operating this day, the second prosecutor was wearing the robes of a judge.  Susan Sniegowski served as Mason County's prosecutor just ten years ago, finding ways to convince an often-friendly Judge Cooper that defendants were guilty as charged.  Her inner prosecutor that day took hold after both sides rested their cases and over an extended lunch break she decided to change the established elements of disorderly conduct into one of her own making and changed the jury instructions to reflect her and the prosecutor's view that one could be found disorderly on private property.  

Fair?  Not to the defendant who was 'arrested' on the basis of a statute rather than a judicial construct made to make jurors come to only one conclusion:  guilty.  Not to the defense attorney who had based her whole defense on proving her client's conduct was lawful because it happened on private property.  And not to the prosecutor, who was given a gift from a sympathetic judge.

Jury Verdict

"If the jury have no right to judge of the justice of a law of the government, they plainly can do nothing to protect the people against the oppressions of the government; for there are no oppressions which the government may not authorize by law."  -Lysander Spooner

Attorney Lederer's opening and closing statements made after the rules were changed against her were definitely strained, while Prosecutor Hand smelled the blood in the water and closed the deal with the reasonable doubt having left the room.  The jury would take about an hour in reaching a unanimous verdict:  guilty on all counts.  With the altered instructions, it would have been a miracle if they hadn't.  After the verdict was read, Darrick Cole Lilleberg rested his head on the table and sobbed for several minutes.  One can be sure that Lady Justice cried just as much.

Epilog 1:  Hidden motives

Why was Judge Sniegowski so willing to change the jury instructions after the parties had rested their cases and allowed the jury to easily convict Lilleberg on the basis of her legal creation?  It may have stemmed back to a 2019 case tried before the judge involving Lilleberg and three resisting charges alleged against him then, back when he didn't have a prior record.  One must always wonder how one can only be charged with resisting arrest when no other charge is present preceding the attempted arrest.  

In that case, Lilleberg's struggles led to a serious back injury suffered by LPD Sergeant Haveman, which led to Judge Sniegowski imposing a harsher sentence than she might have given due to Haveman's victim statement.  

“This case really shows one bad decision, followed by another bad decision, and another bad decision that turn into a huge problem.  After he was injured, you continued to do things that continued to hurt him.  I could see a lot more jail time in this case, but that doesn’t repair the damage that was done,” Judge Sniegowski said.  

The judge was clear that Lilleberg's past record would not be brought up in the courtroom to prejudice the jurors, but she appears to have let it prejudice her own part in this year's trial when she fixed the instructions for only one outcome.  

Epilog 2:  The arrest was unlawful

One does not have to rely on the actual disorderly person statute's language or the definition of "public places' when one considers that the arrest was unlawful on other terms.  Here is the dialog of Officer Morris prior to him taking down Lilleberg to the ground:

"Police department, what's up. Hello Darrick. What's with all the yelling man? OK. OK. Is there something I can do for you? OK OK OK (interviews witness) So what... Here's the thing, listen to me Darrick. Darrick Darrick. Hey Darrick. Hey Darrick, can you come here real quick. Come here real quick Darrick. Darrick Darrick That's not what we want to happen. That's not what we want to happen That's alright I hear that Like I said, Like I said I'm trying to work with you Darrick Darrick Darrick Darrick Darrick Come here and talk with me Darrick Come here and talk with me alright Darrick Darrick You're under arrest OK? I'm serious. Ok, put your hands behind your back. Darrick Darrick Darrick Darrick Darrick don't do this (recording stops during scuffle)."

Officer Maltbie didn't say much more:  "Yeah That's not the intent tonight, but you're, we're... Darrick (scuffle) Darrick don't do it."

Lilleberg would ask why twice before being forced to the ground after being told he was under arrest.  Seventy seconds later he asks again why he was being arrested, only then is he told that he is being arrested for 'Disorderly conduct'.  Under Michigan law arresting officers, without warrants, have duties to those being arrested in preservation of their civil rights:

The videos indicate he was not in the act of being disorderly at the time of his arrest, nor was he fleeing.  Officer Morris confirmed on the stand, and Officer Maltbie affirmed, that he had whispered 'drunk and disorderly' to his senior officer when Lilleberg went inside momentarily (you can make it out in the videos if you listen carefully).  They would not let Lilleberg in on their secret reason for arrest until they wrestled with him for seventy seconds, in violation of his rights under the Fourth Amendment.  The arrest was unlawful, he had a right to resist the unlawful assaults arrest; it was also objectively against LPD policy in violating the use of force continuum, showing excessive force was used.

Lilleberg will be sentenced for three felonies and a misdemeanor in October.