Nick Krieger (@nckrieger):
Early Sunday morning, State Senator Virgil Smith, Jr., allegedly fired several shots at his ex-wife’s car with a rifle (not a shotgun as reported by many sources) outside his home at 18601 Wexford Street, near Pershing High School on Detroit’s east side.
You might have read that Senator Smith successfully avoided a felony charge of operating a motor vehicle while intoxicated (3rd offense), MCL 257.625(9)(c), in early 2010. Wayne County Prosecuting Attorney Kym Worthy disqualified herself from this 2010 case against Senator Smith due to a self-proclaimed conflict of interest. You see, Senator Smith’s father, Hon. Virgil Smith, Sr., was serving as chief judge of the Wayne County Circuit Court at the time. According to Worthy, this created a conflict of interest that required her office to remove itself from the case.
The Washtenaw County Prosecuting Attorney’s office was assigned to handle the 2010 case against Senator Smith. That office ultimately declined to authorize charges, even though the arresting officers had noticed a strong odor of liquor coming from inside Senator Smith’s car at the time of the traffic stop and Senator Smith had blown a 0.154 on the preliminary breath test (he blew a 0.07 when a DataMaster test was administered at the police station 30 minutes later).
Now that Senator Smith is in trouble with the law once again, Worthy has decided to handle the case herself. Why? She explains that because Senator Smith’s father is no longer the chief judge, there is no longer a conflict of interest. Perhaps. But Virgil Smith, Sr., is still a Wayne County Circuit Court judge, and still presides over numerous cases assigned to Worthy’s office.
So what charges has Worthy decided to bring against the good Senator? She has charged him with assault with a deadly weapon (often referred to as “felonious assault”), MCL 750.82, possession of a firearm during the commission of a felony (often referred to as “felony-firearm”), MCL 750.227b, and two lesser crimes.
These charges might sound impressive. But take it from someone who routinely works on criminal cases: Senator Smith has dodged a bullet. Are these felony charges? Yes, of course. But it is remarkable that Senator Smith has been charged with such a minor assault offense.
In Michigan, a person who intentionally fires a gun at another person is typically charged with assault with intent to commit murder, MCL 750.83, or at a minimum assault with intent to do great bodily harm less than murder, MCL 750.84. Assault with intent to commit murder is punishable by any term of years or life in prison; assault with intent to do great bodily harm less than murder is punishable by up to 10 years in prison.
By contrast, the offense of felonious assault is much less serious, punishable by no more than four years in prison. Felonious assault is rarely charged in cases that involve an actual shooting—much less in cases that involve multiple shots being fired at a person immediately following an altercation.
Felonious assault simply isn’t the correct charge in this case. Over the years, I have worked on at least 40 cases in which individuals who intentionally fired guns at other people were charged with and convicted of assault with intent to commit murder. The defendants in these cases—many of whom fired far fewer shots than Senator Smith did—typically received long prison sentences. Many of these cases originated in Wayne County and many were prosecuted by Worthy’s office.
On Tuesday, Worthy said that “[t]he alleged actions of Senator Smith cannot and will not be tolerated.” Why, then, has Worthy decided to so drastically undercharge Senator Smith? And why has she conveniently decided that she no longer has a conflict of interest, even though Smith's father remains on the circuit court bench and nothing significant has changed between 2010 and now? Is this favoritism, pure and simple? I don’t know for certain. But remember what they say: If it walks like a duck and it quacks like a duck….