The curious case of senator Smith.

May 17, 2015

The Mitten Memo. A blog by Nick Krieger.

Lansing has been abuzz with speculation about the political future of State Senator Virgil Smith, Jr. (D-Detroit).  In the early morning hours of Sunday, May 10, Smith allegedly fired several shots at his ex-wife, Anistia Thomas, outside his home at 18601 Wexford Street in Detroit.

Thomas claims that she was invited to the senator’s house. Upon arriving, however, she allegedly found the senator in bed with another woman. Although the precise details remain sketchy, it appears that a physical altercation ensued between Smith and Thomas inside the house.  Smith then followed Thomas outside with a rifle.  In her statement to the police, Thomas asserted that Smith “began firing at her” as she ran from him.  Smith then turned the rifle on Thomas’s Mercedes-Benz, which was parked nearby, shooting the vehicle numerous times.

This is not Smith’s first brush with the law.  Smith has two prior convictions of drunk driving.  And as we have recently learned, Smith successfully avoided a felony third-offense drunk driving charge in 2010. 

In that case, Wayne County Prosecuting Attorney Kym Worthy disqualified herself due to a self-proclaimed conflict of interest.  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 2010 drunk-driving case.

In place of Worthy’s office, the office of the Washtenaw County Prosecuting Attorney was assigned to handle the 2010 matter.  That office ultimately declined to authorize charges, even though the arresting officers had noticed a strong odor of liquor coming from inside Smith’s car and Smith had blown a 0.154 on the preliminary breath test (he blew a 0.07 when a more accurate DataMaster breath test was administered at the police station 30 minutes later).

Now that Smith is in trouble with the law once again, Worthy has decided to handle the case herself.  Why?  She explains that because Smith’s father is no longer the chief judge, there is no longer a conflict of interest.  Perhaps.  But this explanation strikes many observers as dubious.  After all, Hon. 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”), possession of a firearm during the commission of a felony (often referred to as “felony-firearm”), domestic violence, and malicious destruction of property.

These charges might look imposing at first glance.  But take it from someone who routinely works on criminal cases:  Smith has dodged a bullet.  Yes, these are felony charges that are punishable by prison time.  But Smith should have been charged with a much more serious assault offense.

In Michigan, individuals who intentionally discharge firearms at other people are typically charged with assault with intent to commit murder, or at a minimum assault with intent to do great bodily harm less than murder.  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.  In practice, persons convicted of felonious assault often receive far less prison time than this.  Felonious assault is rarely charged in cases that involve multiple shots being fired directly at another person.

Quite simply, felonious assault is not the correct charge in this case.  And Worthy knows it.  Over the years, I have worked on at least 40 cases in which individuals who intentionally discharged firearms 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 very cases were prosecuted by Worthy’s office.

Last Tuesday, Worthy said that “[t]he alleged actions of Senator Smith cannot and will not be tolerated.”  Why, then, has she decided to so drastically undercharge 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 there have been no other significant changes 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 quacks like a duck, it’s probably a duck.

When a politician or public official is undercharged, shown favoritism, or treated more leniently than others, it sends the wrong message.  Public officials must be held to the same standards as the rest of us.  In the days ahead, it is possible that new information could come to light justifying the lesser charge of felonious assault in this case.  But unless it does, both Senator Smith and the Wayne County Prosecuting Attorney will have some explaining to do.

Nick Krieger is a graduate of Ludington High School, earned a bachelor’s degree from Michigan State University, and holds a law degree and master’s degree from Wayne State University Law School.  Nick works as an attorney for the Michigan Court of Appeals and owns a home in Ludington. The viewpoints expressed in The Mitten Memo are Nick’s own, and do not reflect the views of the Michigan Court of Appeals or Media Group 31, LLC and its affiliates: Mason County Press, Manistee County Press and Oceana County Press.  Contact Nick via e-mail at or follow him on Twitter at @nckrieger.

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