Friedman Legal Solutions, PLLC

Criminal Appellate & Post-Conviction Services

SCOTUS Ducks Cold Case/Speedy Trial Issues

The Court, over the protests of two Justices, refused to answer a question sent to it by a federal appeals court, seeking clarification on when the federal government may prosecute a series of old civil rights crimes in the South, dating from the 1960s, even though four decades have now passed.  The case is a notorious one, involving the kidnapping and drowning murder of three young black youths in Meadville, Miss., in the spring of 1964.  Justice John Paul Stevens, joined by Justice Antonin Scalia, said the Court should have taken on the issue, noting that it is rare for a lower court even to ask for such clarification and suggesting that this was an appropriate case for the Justices to make use of that unusual procedure.  The case was U.S. v. Seale (certified question, docket 09-166).New York Criminal Attorney Neil Burney, California Attorney Zadek Shapiro and OSU Law Professor Douglas Berman have a nice discussion of this case on their respective blogs. (Updated November 4, 2009).

Ingham County Circuit Court Again Dismisses Mercer Case

In 2006, Dr. Charles William Mercer, Jr. was charged with the 1968 murder of his wife. There were no witnesses to the crime. In 1968 through 1970, Dr. Mercer was investigated and was cleared. Top medical professionals of the day believed that the cause of death was fully consistent with a form of polio (bulpar polio) that was known to be present in the Lansing area at the time. The case laid dormant for many years until an Ingham County cold case squad reinvestigated the case and concluded that the cause of death was homicide. This was not a case where there where new technology gave the prosecution any “smoking guns.” The case largely hinged on state expert testimony stating that the deceased had an unusually high concentration of a pain killer which a person with polio would have used at the time.

In the nearly forty years since the death, significant evidence had been lost, including the evidence from the exculpatory medical examinations. In a somewhat conflicting ruling, the District Court excluded the prosecution’s expert testimony concerning the cause of death, but still bound Dr. Mercer over for trial. The Ingham County Circuit Court overturned the bind over ruling finding that too much evidence had been lost over the intervening years for Dr. Mercer to have a fair trial. The Court of Appeals reinstated Dr. Mercer’s charges stating that the prosecution had not acted with bad faith in delaying the prosecution.

The Michigan Supreme Court agreed to hear the case to determine whether the prosecution was required to have bad faith where this much evidence had been lost or destroyed. My office filed a friend of the court brief on behalf of the Criminal Defense Attorneys of Michigan arguing that Michigan should follow the decisions of the four Federal Appellate Courts and numerous state appellate courts which did not require the defense to prove a deliberate prosecutorial intent to harm the defense.

On July 26, 2008, the Supreme Court issued an opinion sending the case back to the Ingham County Circuit Court for further proceedings. The Court asked the Ingham County Court to first try and resolve the case on other issues. Two justice dissented and believed that the Court should use that case as a vehicle to resolve the standards for determining when a defendant is entitled to a dismissal when the prosecution waits too long to bring a case.

According to the Lansing State Journal, on August 25th, Judge Colette recommended the case be dismissed based on the defective bindover. The Ingham County Prosecutor’s Office is still evaluating the ruling. According to a later article in the Lansing Journal the prosecution is quoted as saying: “Based on the evidence and the record we have generated (Monday), I will determine whether or not it's appropriate to continue."