The Michigan Supreme Court has vacated its leave to appeal in a case in which a man said he was denied his right to confront his accuser.
In People v. Rose, Ronald Rose, was accused of sexually abusing his wife’s 8-year-old sister, and of showing pornographic pictures to the girl and her brother. At his trial, the girl testified, and the court allowed for a screen to be placed between Rose and the girl, so that she could not see him, but the jury and Rose could see her.
Rose’s lawyer, Scott A. Grabel of East Lansing said in October at arguments that the screen was nothing more than a theatrical prop — the most prejudicial thing he’d ever seen in a criminal trial.
But Allegan County Prosecuting Attorney Judy Hayes Astle argues that Rose’s defense attorney said it was important for the girl to be present in the courtroom during the trial, rather than testifying by closed circuit television or Skype, and the screen provided a way to allow her testimony while protecting her from having to see the accused.
The jury deliberated for just two hours, and found Rose guilty of four counts of first-degree criminal sexual conduct and two counts of distributing obscene material to minors. He was sentenced to 25-50 years in prison on each count of CSC, and one year and four months to two years for the pornography offenses.
Rose appealed, and the Court of Appeals upheld the conviction.
The Michigan Supreme Court, in a short order on Dec. 9, vacated its Feb. 2, 2011, order granting leave because the Court is “no longer persuaded that the questions presented should be reviewed by this Court.”
Justice Marilyn Kelly dissented, and said that the trial court violated Rose’s due process rights, saying, “The screen branded defendant with ‘an unmistakable mask of guilt’ by suggesting to the jury that the witness had a good reason to fear viewing the defendant; namely, that defendant had abused her.”
Then, Kelly said the trial court made it even worse: “This error was compounded when the trial court gave no instruction to the jury directing it not to draw an inference adverse to the defendant from the use of the screen.”
She said that use of the screen is not expressly permitted under MCL 600.2163a, which provides procedures for presenting child witness testimony.
Kelly wrote that when balancing the need to protect minors’ well-being, and protecting a defendant’s constitutional right to confront witnesses, “The trial court must make a ‘case-specific’ finding that the procedure is necessary to further that state interest. Here, the Court of Appeals concluded that the trial court made sufficient findings that the screen was necessary to protect [the girl]. It relied on the trial court’s conclusion that there was a ‘high likelihood’ that [the girl] would suffer psychological damage if forced to testify without the screen.”
The U.S. Supreme Court, she said, has not addressed whether the use of such a screen violates a defendant’s due process rights.
But it has determined that some procedures are “so inherently prejudicial that they are generally not permitted at trial.” The test of such procedures is whether there is “an ‘unacceptable risk that impermissible factors will come into play,'” which hinge on “a ‘wider range of inferences that a juror might reasonably draw’ from the procedure other than to band defendant ‘with an unmistakable mark of guilt.'”
She wasn’t buying the Court of Appeals’ opinion that stated a reasonable juror might conclude that the child was being screened because she “fears to look upon the defendant because she is not testifying truthfully.”
Nonsense, Kelly wrote: “No reasonable juror could so conclude. Courts are not in the habit of protecting people who proffer perjured testimony.”
Rather, the screen could only send one message to the jury: “[T]hat the court deemed the witness to be worthy of protection from the defendant.”