COA says Moroun/Stamper imprisonment improper

The Michigan Court of Appeals ruled that the imprisonment of Detroit International Bridge Co. bigs Manuel “Matty” Moroun and Dan Stamper was improper.

Last month, Wayne Circuit Judge Prentiss Edwards imprisoned the two for failing to follow a court order to finish the Gateway Project that the state sank millions into a few years back.

In a majority opinion, Judge Kirsten Frank Kelly said the judge’s order wasn’t specific enough to keep Moroun and Stamper in jail.

We cannot uphold the trial court’s commitment order where the condition for release requires DIBC to “fully” comply with the February 1, 2010, order as it failed to identify “the act or duty” which must be performed before the incarceration may be terminated. MCL 600.1715(2). While appellants may have the present immediate ability to commence and continue construction, they do not have the present immediate ability to actually finish the construction in accordance with the directives set forth in the February 1, 2010, opinion and order for a period of six to twelve months. Therefore, the condition does not permit appellants to use the keys to obtain their release until the project is completed, or, in other words, “to avoid the sentence” and purge the contempt. Our decision does not preclude further civil contempt sanctions, including imprisonment that was similar to the one imposed by the trial court in January 2011. However, we leave this decision to discretion of the trial court to identify the act or duty appellants will be required to perform, that will coerce the initiation and continuation of compliance with the February 1, 2010, order within the confines of the case law and the statute for civil contempt sanctions.

Judge Kurtis Wilder concurred re: the imprisonment, but Judge Karen Fort Hood said she would have upheld the sanction.


Lack of defense expert did not taint CSC conviction

The Michigan Supreme Court has reinstated the first-degree CSC conviction of a man who molested his 6-year-old niece.

The Court of Appeals had granted Robert K. Brannon a new trial after determining defense counsel didn’t adequately investigate the possibility that expert testimony may have produced a “not guilty” verdict.

But the MSC vindicated defense counsel’s choice to not use an expert witness who could have helped the prosecution’s case.

Brannon was tried and convicted in 2008 for the 1995 sexual assault of his then-6-year-old-niece. Witness credibility was a key issue: many years had passed and family members had discussed with the niece “other sexual assault allegations” against Brannon before she accused him.

Brannon’s defense attorney decided not to call any experts to challenge the reliability of a delayed sexual assault report that was possibly prompted by family members’ urgings. He did so after determining that using the experts might also produce testimony that could help convict his client.

COA Judges Karen Fort Hood and Deborah Servitto said counsel made a bad choice and granted Brannon a new trial.

After reviewing testimony at Brannon’s Ginther hearing, Hood and Servitto said had counsel probed further, he would have learned that the experts had other ways to challenge the niece’s credibility besides pointing out the long delay between the assault and the accusation.

In his dissent, Judge Alton Davis said the majority’s decision was based on 20-20 hindsight.

See, The Michigan Lawyer, “In their opinions.”

Last week, the MSC, in a 6-1 ruling, said defense counsel made the right move:

The record clearly established that defense counsel discussed issues of delayed reporting of sexual assault by a child witness with a potential expert witness, and made a reasonable strategic decision to forego expert testimony in light of the possibility that the witness might also provide testimony favorable to the prosecution.

We REMAND this case to the trial court for reinstatement of the defendant’s conviction and for further proceedings not inconsistent with this order.

Justice Michael Cavanagh would have denied leave to appeal.

In their opinions

I am not convinced that trial counsel’s decision to, in effect, let a sleeping dog lie, particularly after the prosecution decided not to call an expert of its own, was an unsound trial strategy.

Michigan Court of Appeals Judge Alton Davis, dissenting in People v. Brannon.

Robert K. Brannon, freshly convicted in 2008 of molesting his then-6-year-old niece in 1995, did what many freshly convicted defendants do: he blamed his trial attorney for blowing the case.

After a Ginther hearing, Monroe County Circuit Court Judge Joseph Costello agreed and granted Brannon a new trial.

Good call, said the Brannon majority. Trial counsel didn’t adequately prepare the case, they ruled.

Counsel should have used experts, including a listed prosecution expert, and his own expert, to attack the complaining witness’s credibility, said COA Judges Karen Fort Hood and Deborah Servitto. After all, the complaining witness waited 10 years to accuse Brannon. What’s more:

Dr. Campbell (listed on defendant’s witness list) and Dr. Okla (listed on the prosecution’s witness list) testified at the Ginther hearing that they would have testified at trial to the social influences on memory, which was important in this case because family members discussed with the complaining witness other sexual assault allegations against defendant prior to the complaining witness’s disclosure. …

Two out of four known potential expert witnesses essentially testified that they would have been able to provide testimony favorable to defendant on the issue of the complaining witness’s credibility.

Defense counsel failed to fully investigate these witnesses’ potential testimony for his defense or for cross-examination purposes, and, in fact, failed to call any expert witnesses despite the fact that this case turned almost entirely on the credibility of the complaining witness.

Hey, wait a minute, said Brannon’s attorney, I talked to Campbell and decided that the expected testimony may have actually helped the prosecution’s case. And besides, the prosecution said they weren’t going to call Okla to the stand. If I did, Okla might easily be converted into a prosecution witness.

Bad move, said Fort Hood and Servitto.

[C]ounsel’s reasoning only demonstrates his inadequate investigation. There was no indication that he was aware of the multitude of other ways described by Dr. Campbell and Dr. Okla in which expert testimony could have challenged the reliability of the complaining witness’s testimony beyond merely the lengthy delay in reporting (which Dr. Okla acknowledged was common).

Without acquiring this knowledge about how to challenge the complaining witness’s reliability, through a more in-depth investigation into expert witnesses, defense counsel could not have made a sound strategic decision on this issue. As the trial court concluded, under the specific facts of this case, defense counsel failed to adequately investigate the benefit of expert witnesses, denying defendant the effective assistance of counsel.

This is a clear case of armchair quarterbacking, wrote Davis in dissent.

It is certainly apparent, in hindsight, that the expert witnesses who testified at the Gintherhearing were of the view, after the fact, that Drs. Campbell and Okla would have provided testimony favorable to the defense and likely to cast doubt on the complaining witness’s credibility.

It is not apparent that this should have been clear to trial counsel at the relevant time — which is to say, prior to trial. Rather, it appears that, at the time, trial counsel was under the reasonable — albeit possibly, as it turned out, mistaken — impression that that calling an expert witness on the issue of the delay in disclosure could damage defendant’s case more than help it. …

I am … convinced that under these circumstances it was an abuse of discretion to evaluate counsel’s performance on the basis of after-the-fact speculation as to what could have been.