By Ben Solis
Staff Writer
Posted: February 20, 2023 4:40 PM

As lawmakers and gun reform advocates push for stronger laws to prevent future mass shootings, with many still reeling from the tragic incident on Michigan State University's campus this week, it remains unclear if current law could have prevented the suspect from gaining access to and owning a gun even with a prior gun charge on his record.

Several have questioned in the wake of the shooting that left three dead and five critically injured on Monday evening if the suspect, Anthony McRae, should have faced a stiffer penalty that would have barred his legal access to firearms instead of pleading down the CCW charge – a felony – to a high court misdemeanor.

Much criticism has also since been lobbed at former Ingham County Prosecutor Carol Siemon for a policy shift to limit felony firearm gun charges that she said disproportionately affect Black residents.

That said, sources in interviews with Gongwer News Service asserted that the general inclination for prosecutors is to seek plea deals in first offense of carrying a concealed weapon without a license convictions, much like the one Mr. McRae received for an incident in 2019 in which was arrested for CCW but not in the commission of another crime and with no prior felony or gun offenses.

Mr. McRae also exited his probationary period without incident in 2021, around the same time the policy from Ms. Siemon was implemented. While prosecutors have broad discretion over whether to bring charges, drop them, seek plea deals or convictions at trial, one former defense attorney said aside from the policy, Ms. Siemon's charging policies were not well respected by the law enforcement and legal communities. She has since left office and been replaced by appointed Prosecutor John Dewane, who in January reversed his predecessor's policy on felony firearm, but says that the policy wouldn't have affected Mr. McRae's 2019 conviction.

Former Rep. David LaGrand, who prior to seeking elected office served as an assistant prosecutor in Kent County for eight years, further stated that his read of the reduction offered to Mr. McRae wasn't much of a reduction in sentence at all.

"The reality is, when you say high court misdemeanor … it's essentially the same thing as a low level felony in some context. So, it's not like it was a dramatic reduction here," Mr. LaGrand told Gongwer. "The other thing is, yeah, quite likely, he wouldn't get jail time for that. … I was a prosecutor for years and I don't offhand remember virtually every case, but in the vast majority of cases some offer is made, because if there isn't an offer, the defendant has no incentive not to go to trial."

Even if there was a high likelihood of success for winning at trial, there's no 100 percent guarantee that the prosecutor would win at trial, he added. The inclination is to seek a conviction by the swiftest possible means.

"If you're a prosecutor, you're always confronted with that moment where a bird in the hand is worth two in the bush. Even a 95 percent chance of conviction has a 5 percent chance the guy's going to walk," Mr. LaGrand said. "So, in that situation, that is a calculus that prosecutors make every single time in every single case, whether it's shoplifting, armed robbery, drunk driving or something else. There will be some kind of offer made, whether it's reduced charges, whether it's a cap on the consequences. 'I'll guarantee the guy goes to jail, but doesn't do prison time,' or something like that."

Mr. LaGrand also said that in those cases, if an offer was not made, the defense attorney would think the prosecutor was being unreasonable and not doing his job. The line that is often drawn, however, is in high profile murder cases where prosecutors often refrain from making a deal.

This is what sets Ms. Siemon apart in that she was known for offering lenient sentences even in murder cases that angered law enforcement and judges.

Midland Assistant Prosecutor J. Dee Brooks said it was not unusual for first offense CCW charge with no priors or carrying in the commission of another crime to be pleaded downward to some sort of misdemeanor firearms charge.

"If you look at CCW, even under the old sentencing guidelines and before some of the criminal justice reforms where they really restricted what a court can do on low level, low guideline offenses, and this would be one of those, it would allow for at most a possible jail sentence in some local jail," Mr. Brooks said in an interview. "And under the criminal justice reform, the restrictions on the courts and what they want them to do, it would be going against those recommendations even to give jail time (and instead give) a lengthy probationary sentence or something like that."

The factors prosecutors examine and weigh before making charging decisions and potential plea deals are numerous, Mr. Brooks said, but often top of mind are considerations for danger to the community and if it appears the arrested individual was contemplating some sort of criminal activity while carrying a weapon.

"I've had situations where people were out hunting, or target practicing, and just didn't bother to do all the procedures that they should have done. Perhaps even forgot about it. They always claim, and sometimes it might be true, that they forgot they even had the gun in the car (for CCW auto charges)," he said. "You're making an assessment of the circumstances. Did they appear to be someone that is a responsible gun owner, generally, but made a mistake? Or does it appear to maybe be somebody that doesn't appreciate the seriousness or potential danger of their situation, their circumstances? We're always concerned with community safety, that always has to be our primary concern."

Mr. Brooks added that charging decisions also weigh what's fair to the arrested subject, balancing competing constitutional rights at the same time. Mental health is also a major factor, but one that's hard to gauge if the person isn't adjudicated and in the system for mental health monitoring and treatment.

"People feel very strongly about firearms rights and some people even say, 'we shouldn't even be requiring any type of permit or licensing requirements.' Then others appreciate that they have the potential to cause lethal harm so quickly and easily," he said. "One of the concerns always is mental health issues, and I think that's part of the problem that we have right now. Unless somebody has been legally adjudicated as mentally incompetent through the court process or has been involuntarily committed, there's no way to check that. There's no way to make a record of that."

Various Republican lawmakers for about the past six to eight years have attempted to eliminate the requirement to obtain a license to carry a concealed pistol and thus eliminate the crime of carrying a concealed pistol without a license. Bills moved to varying degrees but never made it to the governor's desk.

Mr. LaGrand and Mr. Brooks were asked if they believed mandatory minimums for first offense CCW convictions, unpaired with another crime, or blanket gun ownership prohibitions for such offenders should be reconsidered as penalties in the wake of frequent mass shootings – and in cases like Mr. McRae's.

Both said no, citing research and first-hand experience that shows mandatory minimums and blanket bans don't work and are often hard to enforce.

"My experience is that every time they try to do mandatory penalties, it gets blindly effectuated without discretion, and there gets to be some bad examples like the jails or prisons filling up. People will then say, 'oh, well we don't want that. We want to reduce costs and keep people out, or keep them in for shorter periods of time,'" Mr. Brooks said. "I think there is something to be gained by the felony firearm law, which by the way doesn't apply. We can't use it with a CCW charge, so again, the punishment and penalties that we get out of CCW charge, even as a five year felony, are pretty insignificant. … There should be some discretion as to how it is applied."

Gongwer requested interviews with prosecutors in Kent, Macomb, Oakland and Wayne counties to ask how prevalent it was for prosecutors to plead down first offense concealed weapons charges if that individual had no prior convictions and was not committing another offense – let alone another felony.

Neither Macomb's nor Oakland's offices of the prosecutor responded to interview requests. Kent Prosecutor Christopher Becker's office notified Gongwer that he was out of the office and was not available for comment before publication.

Wayne Prosecutor Kym Worthy declined the interview request and further declined comment on the matter in a statement provided to Gongwer. Ms. Worthy also stressed that her office would not be comparing its process to another prosecutor's, nor would did she intend to criticize the policies or discretion decisions of another fellow prosecutor. She did, however, call for stricter gun laws.

"While I understand why you may want this information, any comment I make will be construed as a comparison, and every case we as prosecutors review are independent from each other. So, I will not be commenting on this," Ms. Worthy said adding that society and leaders need to face the broader conversation of gun law reform. "There needs to be a deep dive regarding Michigan's nonexistent and necessary gun law reform. I have personally called for changes for nearly eight years. I was always told that gun reform will never happen in Michigan. It is way past time for action on that front."

Mr. Brooks agreed that a conversation was now warranted on gun reforms.

"I think there are some things that we can do with the background checks, with being able to keep track of all the firearms out there and who's amassing them, in terms of mental health checks. We're much better now at being able to track criminal histories, but even sometimes those … are lacking," he said. "We've been promoting a safe storage law for a while that we think makes a lot of sense, and I do think that the red flag laws, that's going to be interesting, but I certainly am interested in taking a look at that. We want to be careful about protecting people's rights and making sure that due process is provided for, but I do think this latest example at Michigan State … does show that there are situations where something like that could be effective. We can figure out a fair, constitutional, legitimate way to do it."

As to whether his former colleagues in the new Democratic-led Legislature's call for reforms were timely and warranted, Mr. LaGrand said yes but with a caveat that there needs to be more than legal reform to help solve the scourge of gun violence and mass shootings.

"I think that in America, we have to realize that there has to be a cultural shift on guns. Unless we put pressure on people to not hyper saturate the community with guns, no amount of legislation is going to actually significantly reduce the saturation of guns in the community," Mr. LaGrand said.

He also said society can't "fall into the trap of thinking politicians have to save us from all of our problems."

"We the citizens of America have to solve our problems and be accountable for our own behavior. Legislation is by definition coercive. It's forcing people to do something," Mr. LaGrand posited. "And this has got to be a cultural conversation, where we achieve a cultural shift, and that's probably not going to be most effective if it happens coercively."