by Sheila Pursglove
Legal News
Criminal defense deals with the currency of personal freedom – and the stakes are incredibly high, says Miller Canfield attorney David O’Brien.
“Criminal defendants face not only imprisonment, but the many negative life consequences – inability to obtain employment, loss of the right to vote, and deportation to name a few – that flow from having a criminal record,” he says.
Legislators at both the state and federal level are rarely sympathetic to the rights of criminal defendants, he adds.
“If you research any issue of criminal law you will almost always find that the deck is stacked against you. Although this can be frustrating in many cases, it’s also a tremendous challenge to spot and develop issues to advance a client’s position and bring a case to a favorable resolution.”
In one particularly intriguing case, O’Brien and colleague Tom Cranmer defended a computer science and engineering professor who was charged, along with his sister, with violating the International Emergency Economic Powers Act for shipping telecommunications equipment to Iraq during the economic embargo imposed by President Bush.
“The defense of the case was multi-faceted, but among other issues involved our client’s knowledge and understanding of the scope of the embargo, and the operation of the United Nations’ Oil for Food program which allowed trade with Iraq to support humanitarian redevelopment efforts there,” O’Brien says. “Our client was ultimately acquitted on all counts after a two-week trial.”
O’Brien, named several times as a Michigan Super Lawyer in Criminal Defense, particularly enjoys working with youthful and first time offenders. “There are a number of programs that provide these offenders with the opportunity, even if guilty, to walk away ...with a clean record so they are not burdened for the rest of their lives with the consequences of a conviction,” he says.
Miller Canfield provides a unique opportunity to do criminal defense work within the practice of a large law firm, he says.
“Most criminal defense attorneys are either solo practitioners or work at boutique firms with a handful of lawyers. It’s really invaluable to have the wealth of resources of the largest firm in Michigan at my disposal in handling any given criminal case.
“I also love the people I work with,” O’Brien says. “Within the past six months, my best friend at the firm has departed for a position as the new federal magistrate in Ann Arbor, and another colleague down the hall has been appointed as a judge on the Michigan Court of Appeals. These two individuals are characteristic of the level of legal talent that exists at this firm.”
O’Brien can thank 19th century Russian author Fyodor Dostoyevsky for nudging him into a legal career. Armed with a bachelor’s degree in English literature from Swarthmore College, O’Brien found slim pickings in employment options except for teaching. But his favorite novel, Crime and Punishment – focusing on the internal struggles of a man trying to come to terms with a murder he committed, and his need for confession and redemption – intrigued him with its discussion of the psychology of criminal behavior.
“And I thought criminal defense would provide me the opportunity to deal with those issues on a firsthand basis,” he says.
He earned his juris doctor magna cum laude from the University of Michigan Law School, where he was a note editor of The Michigan Law Review. What was his best experience?
“Hands down, the $100 season tickets to U of M football,” he says with a grin. “Second would be the quality of the professors and the opportunities for clinical practice.”
Participating in a U-M criminal appellate defense clinic headed by two full-time attorneys at the State Appellate Defender’s Office, O’Brien handled the appeal of an individual convicted of murder in connection with a drug deal. He undertook the legal research and writing required to prepare an appellate brief, met with his client in a maximum security prison, visited the scene of the crime, and met with the lead detective to view evidence.
“It was a great introduction early in law school to the daily life of a practicing attorney and really cemented my desire to do criminal defense work,” he says.
O’Brien was clerking for federal Judge Richard Matsch when accused Oklahoma City bomber Timothy McVeigh filed a petition to stay his execution on the basis that the government’s failure to produce certain documents constituted a fraud on the court which would allow the reopening of his habeas petition. Matsch denied that petition, a decision affirmed by the Tenth Circuit.
McVeigh was ultimately put to death during the period of O’Brien’s clerkship.
“The media attention surrounding his petition and the execution of sentence was quite a circus,” he says.
The son of a banker and special education teacher, O’Brien grew up in Stamford, a small Vermont town with a population around 750, where his mother often picked him up from elementary school in a horse and cart, or a horse-drawn sleigh in winter. He later attended a rural public high school near Burlington that drew its attendance from a number of farming counties.
“Attendance during hunting season was sparse,” he says.
He enjoys similar small-town life in Temperance, near the Ohio border. Despite a long commute to his Ann Arbor office, it gives him the best of both worlds and reminds him of his roots, he says.
“Temperance is a bit more rural and slow paced. However, working in Ann Arbor keeps me current with all the restaurants, shops, and cultural events that go on there. As a college town, it also produces a steady stream of youthful offenders.”
His wife Kerri is a registered nurse who most recently worked for Hospice of Northwest Ohio. Their son, Jackson, 6, will enter second grade this fall. O’Brien’s stepson, Christian, 19, is entering his sophomore year at University of Toledo where he plans to major in education.
O’Brien works out at the gym to stay in shape for skiing and volleyball and also coaches his son’s tee-ball and flag football teams.
“Although the practice of law has its complexities, it has proven to be quite a challenge to keep a team of twelve 5- and 6-year-olds from building dirt castles in the infield, or swarming and tackling their own running back on the football field.”
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