MSC: Screen between victim, accused didn’t violate right to confront

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.”

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After second look, Markman grants disqualification in criminal case

Robert Winburn was convicted of murder in 1990 and his appeal bubbled its way up to the Michigan Supreme Court.

Winburn filed a motion under MCR 2.003, seeking to have Justice Stephen J. Markman disqualify himself from the case. Winburn alleged the 1990 conviction had “overlapping facts” with a federal investigation by the Bureau of Alcohol, Tobacco, and Firearms of narcotics trafficking in which Winburn was allegedly involved.

Winburn says that in 1992, then-federal prosecutor Markman reviewed the ATF investigation and declined to press charges.

Markman denied the motion on Nov. 7, stating at the time:

[D]efendant has established no connection between the facts of the 1990 murder that are currently in dispute and the circumstances of the federal drug investigation in 1992, except that defendant was involved in both matters.

Thus, the crux of defendant’s argument is simply that I participated in a decision (not to prosecute defendant) nearly two decades ago, and that I am now participating in another decision concerning a different crime in which defendant was allegedly also involved.

Earlier this week, Markman reversed his decision and will recuse himself from Winburn’s case:

Defendant has now filed a motion for “clarification of material facts.”

In this motion, defendant expands upon the record and presents new evidence supporting his previously unexplained and unsubstantiated assertion that there are “overlapping facts” between the two matters.

This evidence, in my judgment, does establish a connection between the instant appeal — in which I would participate as a judge — and the prior criminal investigation– in which I participated as prosecutor.

Under these circumstances, I believe that my disqualification is warranted, and accordingly I recuse myself from the consideration of this matter.

Sometimes, persistence pays off.

Proposed MCR amendment: Exhibits would stay with trial court

Trial courts would become the repositories for all trial exhibits, whether admitted into evidence or not, under a proposed amendment to MCR 7.210.

MCR 7.210(C)’s current language would be struck and replaced with the following:

The trial court or tribunal shall retain originals or legible copies of all documentary, photographic, video, or audio exhibits offered in evidence, whether admitted or not.

If no claim of appeal has been filed upon expiration of the time for doing so, the trial court or tribunal may return such exhibits to the parties who offered them.

By stipulation of the parties or order of the trial court or tribunal, exhibits in other forms may be returned to the parties who offered them.

Appellants are entitled to access the exhibits or proposed exhibits that are not in documentary, photograph, video, or audio form upon a showing of good cause and the filing of a motion seeking such access within the time for filing appellant’s brief on appeal.

When the record is returned to the trial court or tribunal, the trial court or tribunal clerk shall return the exhibits to the parties who filed them.

The amendment was proposed by James Neuhard, former director of the State Appellate Defender Office.

See ADM File No. 2010-25 for details and information about submitting comments on the proposed rule change.

Three MCR amendments take effect 1/1/12

Michigan Court Rules dealing with jurors, personal protection orders and appointed counsel in child protective proceedings have been amended effective Jan. 1, 2012.

Here’s what you need to know, as explained by the staff comment accompanying the rule changes. As always, “The staff comment is not an authoritative construction by the Court.”

  • Amendment of MCR 2.511 – Impaneling the Jury
    Staff Comment: Because MCL 600.1337 requires a court to discharge an unqualified juror regardless whether a party challenges the juror for cause, the amendment of MCR 2.511 clarifies that the discharge must be made when the court learns that the juror is not qualified to serve.
    Issued: 10/06/11
    Effective: 1/01/12
    ADM File No. 2010-11
  • Amendment of MCR 3.707 – Modification, Termination, or Extension of Personal Protection Orders
    Staff Comment: The amendment of MCR 3.707 clarifies that the right to bring a motion to modify or terminate a personal protection order within 14 days after the order enters applies to ex parte PPOs only, not those orders that enter following a full hearing. In addition, for a respondent to file a motion to modify or terminate a PPO more than 14 days after its issuance, this amendment requires the respondent to show good cause.
    Issued: 10/06/11
    Effective: 1/01/12
    ADM File No. 2010-17
  • Amendment of MCR 3.915 – Appointed Counsel in Child Protective Proceedings
    Staff Comment: The amendment of MCR 3.915 clarifies that counsel should be appointed for a parent even at the preliminary hearing of a child protective proceeding.
    Issued: 10/06/11
    Effective: 1/01/12
    ADM File No. 2011-04

MSC shortens late appeals period in criminal cases

Defendants challenging their convictions with a delayed application for leave to appeal will have less time to do so under the Michigan Supreme Court’s amendment of MCR 7.205(F).

The MSC, on a 4-3 vote, has shortened the late appeal period from 12 months to six. The amendment takes effect Sept. 1, 2011.

The majority adopted the rule without comment. Justice Marilyn Kelly dissented, joined by Justices Michael F. Cavanagh and Diane M. Hathaway.

Kelly said the majority’s justification for the shortened period — that Michigan’s delayed appeal period is too generous when compared to other states — doesn’t hold water because Michigan’s appeals procedure has some significant differences.

A criminal defendant in Michigan has 42 days from the date of entry of a final judgment in which to file an appeal as of right. He or she has 21 days to file an appeal by leave.

Before today’s amendment, if an appeal was not sought within these time limits, a delayed application could be filed within 12 months from the date of entry of the final judgment. This is a two-tiered system but it is not typical of other two-tiered systems.

A majority of states with a two-tiered system have a period as long as ninety days in which to appeal. To perfect the appeal in those states, all that need be filed is a notice of intent. The deadline for filing the appellant’s brief is tolled until the trial transcripts are filed. The brief is then due within six months.

In Michigan, Kelly continued, there are a couple of big differences.

First, the time for appeal begins to run from the final judgment and is not tolled for production of the transcript. A defendant may use the deferred appeal period if he or she misses the initial deadlines because preparation of the transcript is delayed.

Second, Michigan requires an appeal by leave to be made on the merits. Hence, the appealable issues must be identified before the appeal can be filed. And in order to identify the issues, counsel must have the trial transcript. Therefore, the time for appeal by leave in Michigan must be longer than in states that do not require the issues to be identified when the appeal is filed.

Kelly said that in a “significant percentage” of cases, transcripts aren’t ready when the 21-day appeal period expires. In such cases, the delayed appeal period comes into play. And, unlike other states where only a notice of intent to appeal is required, Michigan defendants must present an application on the merits.

It’s a critical difference, Kelly maintained.

[T]he difference between Michigan’s procedures and those of states requiring only a notice of intent to perfect an appeal is highly significant. And it explains why
there is no sound basis to lower Michigan’s appeal period for delayed applications from one year to six months.

Lowering the appeal period for leave cases to six months does not bring Michigan’s appeal period into conformity with the appeal period of other states.

Moreover, the amendment renders Michigan’s rule far more oppressive on appellants than is currently the case.

ADM File. No. 2009-19.

MSC orders amendments to MCRs

In orders released late yesterday, the Michigan Supreme Court took the following action on amendments to the Michigan Court Rules, the Rules Concerning the State Bar of Michigan and the Rules for the Board of Law Examiners:

Amendment of MCR 5.208
Notice to Creditors, Presentment of Claims

Issued: 5/17/11
Effective: 9/01/11

Staff Comment: The amendment of MCR 5.208 removes the requirement to list a decedent’s last known address on the Notice to Creditors form.

The staff comment is not an authoritative construction by the Court.
ADM File No. 2009-29

Amendment of MCR 6.005
Right to Assistance of Lawyer; Advice; Appointment for Indigents; Waiver; Joint Representation; Grand Jury Proceedings

Issued: 5/17/11
Effective: 9/01/11

Staff Comment: The amendment of MCR 6.005(H) revises the rule to clarify that appointed and retained defense counsel in a criminal proceeding either must file a substantive response to a prosecutor’s application for interlocutory appeal or notify the Court of Appeals that the lawyer intends not to submit a pleading.

The staff comment is not an authoritative construction by the Court.
ADM File No. 2008-28

Amendment of Rule 3 of the Rules Concerning the State Bar of Michigan and Rule 8 of the Rules for the Board of Law Examiners
Rule 3 Membership Classes; Rule 8 Recertification

Issued: 5/17/11
Effective: 9/01/11

Staff Comment: The amendment of SBR 3(E), submitted by the State Bar of Michigan, would clarify that an out-of-state attorney who voluntarily resigned from the Michigan bar would not be required to retake the Michigan Bar Examination if the person meets the criteria for admission without examination under Rule 5 of the Rules for the Board of Law Examiners. A similar change also is made in SBR 3(F) regarding emeritus members.

Finally, Rule 8 of the Rules for the Board of Law Examiners is amended to reflect that resigned or emeritus members who seek readmission are covered under Rule 8, which allows for recertification.

The staff comment is not an authoritative construction by the Court.
ADM File No. 2009-20

Proposed Amendment of MCR 3.501
Class Actions

Issued: 5/17/11
Action: Court declined to adopt either proposal; file closed.

The proposed amendment of MCR 3.501(B) in Alternative A would have required a change in circumstances to have occurred that would allow a party to file a supplemental motion for certification of a class within 21 days of the party’s knowledge of the changed circumstances. The proposed amendment also would have allowed a party to file a motion for revocation or amendment of the certification. The court as well would have been allowed to consider supplemental motions to recertify and revoke or amend the certification. The proposed amendment of MCR 3.501(B) in Alternative B would have clarified that only one motion for certification may be brought, and that once granted, the certification may be amended or revoked.
ADM File No. 2008-18.

MSC takes action on MCRs

The Michigan Supreme Court has taken the following actions concerning the Michigan Court Rules:

Amendments of MCR 2.403, 2.411, 3.216 – New MCR 2.412
Case Evaluation, Mediation, Domestic Relations Mediation, Mediation Communications

Issued: 4/05/11
Effective: 9/01/11

Staff Comment: The amendments of MCR 2.403, 2.411, and 3.216, and the adoption of new MCR 2.412 consolidate provisions related to mediation confidentiality into one rule and expand the number of exceptions to mediation confidentiality.

The staff comment is not an authoritative construction by the Court.
ADM File No. 2010-30.

Amendment of MCR 2.507 – Conduct of Trials

Issued: 4/05/11
Effective: 9/01/11

Staff Comment: The amendment of MCR 2.507 was submitted to the Court to clarify that oral agreements not made in open court or in writing to settle a case will not be enforceable. Like an agreement subject to the statute of frauds, agreements to settle a case would be required to be made in open court or be submitted in writing to be binding.

The staff comment is not an authoritative construction by the Court.
ADM File No. 2008-11.

Amendment of MCR 8.121 – Contingent Fees in No-Fault Cases

Issued: 4/05/11
Effective: 9/01/11

Staff Comment: The amendment of MCR 8.121 extends the rule to contingent fee agreements in no-fault cases, except for attorney fees or other sanction awarded pursuant to statute or other authority.
The staff comment is not an authoritative construction by the Court.
ADM File No. 2007-17.

Amendment of MCR 8.126 – Temporary Admission to the Bar

Issued: 4/05/11
Effective: 9/01/11

Staff Comment: Michigan’s pro hac vice rule, MCR 8.126, has been in place since 2008, and these changes reflect revisions to update the rule that were adopted at the request of the AGC and the State Bar of Michigan.

The revisions include a requirement that the fee be charged for each request for pro hac vice admission, that the court that grants the motion send a copy of the order to the AGC (instead of requiring that the Michigan attorney send the copy to the AGC), that the rule specifically include an attorney’s temporary admission for arbitration proceedings, and that the fee be required to be paid before an order enters.

The staff comment is not an authoritative construction by the Court.
ADM File No. 2007-17.

Proposed Amendment of MCR 2.117 – Not Adopted

Issued: 4/05/11
Result: Declined to adopt and file closed

The proposed amendment would have revised MCR 2.117 to provide that an attorney-client relationship continues until a final judgment is reached and the period allowed to appeal by right has expired unless the attorney discontinued the relationship before that time.

Also the proposal would have clarified that follow-up or ministerial actions performed by the attorney following notice of termination do not extend the attorney-client relationship.
ADM File No. 2007-18.

Proposed Amendments of MCR 6.425 and 7.210 – Not Adopted

Issued: 4/05/11
Result: Declined to adopt and file closed

This proposal would have required a sentencing judge to prepare and include with the case record a form in which the judge outlines the reason or reasons for departure from the sentencing guidelines.

The duty to do so would have been in addition to the obligation to state such reasons on the record.

The proposal was designed to provide litigants and appellate courts a clear and unambiguous recitation of the reasons for departure by the sentencing court.
ADM File No. 2008-10.

Proposed Amendment of MCR 2.203 – Not Adopted

Issued: 4/05/11
Result: Declined to adopt and file closed

This proposed amendment would have clarified that summonses must be issued when a counterclaim or cross-claim is filed, and would establish an expiration date identical to the expiration date of summonses issued when a third party is added to an existing case.
ADM File No. 2008-32.