6th Circuit reverses itself on habeas case

In an en banc rehearing of the 2010 Davis v. Lafler case, the 6th U.S. Circuit Court of Appeals affirmed the district court’s denial of a defendant’s writ of habeas corpus, reversing itself in the process.

In the case, the defendant was charged with aiding and abetting a carjacking. The prosecution said he acted as a lookout for a friend who pulled off the crime and rode off with the friend after the carjacking.

In the 2010 decision, the court said there wasn’t enough evidence to show he did anything to assist the crime. (For more on the 2010 decision, read our analysis in “6th Circuit overtuns aiding and abetting conviction.” The original majority opinion relied upon another 6th Circuit decision in Brown v. Palmer, in which another defendant was charged with aiding and abetting a carjacking. In Brown, the court also found the evidence was insufficient to show Brown had actually done anything to assist the carjacking.

In the en banc decision, Judge Ronald Gilman wrote for the majority that the two cases aren’t similar enough. In Brown, Gilman noted, the defendant didn’t arrive at the scene with the carjacker. He also noted Davis’s strange conduct in that he entered the restaurant just before the crime, ordered only water and no food, and left immediately after in the stolen car.

Brown engaged in no overt acts to indicate that he was involved in the crime. He simply sat in his car and watched the crime unfold in front of him, to his professed shock and dismay.  Davis, on the other hand, exited the Cavalier with Washington, entered the restaurant, failed to order any food, and stood at the window.  Davis would have had no other way of so closely coordinating his actions with those of Washington if he had not been actively watching what was taking place.  In short, Davis’s behavior during the crime was far closer to that of a coconspirator than Brown’s.

The  fact pattern here is far more incriminating because it indicates that Washington was expecting Davis to enter the SUV (without any contemporaneous communication between them) that Washington had just stolen.  The jury could easily conclude from this evidence that Davis was involved in the planning and execution of the carjacking.  In contrast, the perpetrator in Brown did not wait for Brown to enter the carjacked Buick, did not drive it towards Brown, and did nothing after the crime to indicate that the two were working in tandem.

The majority also found no ineffective assistance of counsel under the Strickland v. Washington standard for not calling the carjacker to testify. Gilman wrote that it was a strategic decision in that he didn’t want his client connected to the carjacker in the jury’s minds. Judge Boyce Martin dissented from this part of the decision only, arguing that he’d remand for an evidentiary hearing on the ineffective assistance claim. Judge Karen Nelson Moore dissented, agreeing with the original panel on the sufficiency of the evidence.

If you’re keeping score, the votes were as follows:

Gilman wrote the majority opinion, joined by Chief Judge Batchelder, and Judges Boggs, Gibbons, Rogers, Sutton, Cook, McKeague, Griffin and Kethledge. Martin wrote a partial concurrence/partial dissent on the ineffective assistance of counsel, joined by Judge Stranch. Moore dissented, joined by Judges Cole and Clay

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‘Aiding and abetting a drug deal’ defendant pleads guilty

A few months back, the Michigan Supreme Court held that Brighton attorney Ronald Plunkett, who drove his girlfriend to a drug dealer in Detroit, and gave her money to buy drugs which were later given to a third person who died of an overdose, could be charged with aiding and abetting the sale of narcotics causing death. (See “‘Aiding’ decision going too far?”)

The theory, according to the court, is that Plunkett aided and abetted the drug dealer by driving his girlfriend to the dealer and supplying money for the transaction. The decision was criticized by defense attorney as opening the floodgates for anyone in a transactional crime (think gambling, etc.) to aiding and abetting.

On Monday, Plunkett pleaded guilty to a reduced charge [AnnArbor.com]:

Ronald James Plunkett, 53, pleaded guilty this afternoon in Washtenaw County Circuit Court to delivery of less than 50 grams of cocaine and maintaining a drug house.

He admitted to giving someone cocaine at his Fuller Court apartment on June 16, 2006 – the day 22-year-old Tiffany Gregory collapsed there and died after consuming a combination of alcohol, cocaine and heroin.

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MSC denies Plunkett rehearing

The Michigan Supreme Court has denied the defendant’s motion for rehearing in People v Plunkett, the recent decision in which the court held a defendant who purchases drugs can be charged with aiding and abetting the delivery of drugs.

In our April 12, 2010 issue, we discussed the controversial decision, which, if read literally, could be extended to mean that any party to a transactional  crime (running a gambling operation, sale of drugs, etc.) could be charged with aiding and abetting that crime. Several attorneys criticized the wording of the opinion, if not the opinion itself, as going too far by turning misdemeanor activities like drug possession into felonies.  [Subscription req’d].

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