In late August, our office won a 6.500 appeal that we had been working on for years. In People v Armijo, the Court of Appeals found that the Defendant was denied his right to effective assistance of trial and appellate counsel when neither attorney investigated his defense. We believe that our client is innocent and are delighted with the ruling. It is a must read for anyone working a 6.500 motion because it shows that the deference afforded to trial counsel or appellate counsel’s strategic decision does not require blindness. The Court took a hard look at the proffered strategic decision.The prosecutor was upset with the ruling and appealed the ruling to the Michigan Supreme Court. It took them only four days to turn down the prosecutor’s request. I’ve never seen anything like it. The Court didn’t even give us time to file an answer before turning it down.

Tags: 6.500 , Ineffective Assistance of Counsel, Macomb County Circuit Court, Michigan Court of Appeals

It has always troubled me how strict some Michigan courts have taken such a narrow view of what new evidence is important enough to win a motion for new trial. Cases often turn on indirect evidence, e.g. things that hurt witness credibility, which suggest that the Defendant is capable of or had the motive to commit the crime, etc. When this evidence is later disproved, Courts engage in all sorts of justifications to say it didn’t matter. Their concerns are probably pragmatic, Courts are concerned that the more areas that are opened for review, the more motions they will face. They feel that limiting the types of evidence that are important enough to grant a trial will protect some societal interest in finality. In People v Grissom, Supreme Court No. 140147, the Michigan Supreme Court found that similar acts evidence which showed that the Complainant made other false allegations of sexual assaults was sufficiently important to warrant a new trial. The Court’s opinion go a long way to knocking down the trait of courts to toss the word “mere” in front of a type of evidence would deny its importance, (e.g. “mere impeaching,” “mere recanting testimony,” etc).

On December 16, 2010, the Michigan Supreme Court refused to hear the Michigan Innocence Project’s appeal in the Lorinda Swain case. People v Swain, Supreme Court No. 141504. Justices Kelly, Cavanaugh, and Hathaway dissented. New evidence had convinced Calhoun Circuit Judge Conrad Sindt (a very conservative judge) to grant her a new trial based on ineffective assistance of counsel and newly discovered evidence. The Michigan Court of Appeals (Hoekstra, Saad, and Murray) reversed the conviction based on a procedural bar. Michigan law prohibits filing more than one 6.500 motion unless there is newly discovered evidence. The Court of Appeals ruled that such newly discovered evidence has to be evidence which the defense could not have located using due diligence. The Court implied that there was no actual innocence exception to this rule and that it is not a violation of the constitution to convict an actually innocent defendant. By a 4-3 vote, the Michigan Supreme Court refused to hear the appeal. Update: The Michigan Innocence Project has since moved for rehearing in the Supreme Court. Since Judge Davis voted with the majority, it is possible that they could pick up the vote of incoming Justice Mary Beth Kelly (not to be confused with co-Justice Marilyn Kelly).

On November 20, 2009, the Macomb Circuit Court (Judge Biernat) granted post-conviction relief in People v Julie Baumer, Macomb Circuit No. 2004-2096-FH based on the ineffective assistance of her trial and appellate counsel in failing to seek to have a defense radiologist appointed to counter the State’s expert radiologist in first degree child abuse prosecution involving allegations of non-accidental trauma (“shaken baby syndrome”) inflicted within 12-24 hours of the images. The State’s experts testified that the injuries were the result of an intentional and very significant blunt force trauma. Defense counsel was aware of the need of a radiologist testimony to counter the state’s evidence, but couldn’t afford to call one. The Court found that defense counsel should have petitioned the Court to appoint an expert under MCL 775.15. The Court also stated that Ms. Baumer may be actually innocent, but that the Court did not need to reach this issue. To read the Macomb County Daily’s coverage of the evidentiary hearing, click here.