I also want to give a public nod to my colleague and friend Neil Rockind for his brilliant work in the case. He is a truly great co-counsel.
Then the Sixth Circuit issued its October 30, 2013, Peoples v Lafler opinion. A three-member panel criticized a Michigan prosecutor for a false inference argument and deemed that it was prosecutorial misconduct. The court ruled that AEDPA precluded them from reviewing the case, yet the issue that ultimately was considered dicta in the appellate opinion may nudge open AEDPA’s heavy door. In Peoples v. Lafler, two witnesses told a similar story that was the only evidence connecting Jesse Peoples to the murder of Shannon Clark, a Detroit drug dealer fatally shot outside his home. However, the evidence was “known false testimony” and “trial counsel did not use the only hard evidence at his disposal to prove that the two witnesses not only lied, but told the same lie,” the appellate court said in its opinion.
Three months after Clark’s death, police arrested Jesse Peoples, Demetrious Powell, and Cornelious Harris after the men led police on a chase in a stolen Jaguar that ultimately crashed. Police found on the driver’s side floorboard the pistol that killed Clark. Also, a police officer witnessing the crash writes a report identifying Harris as the driver. Peoples, while awaiting trial, mailed defense counsel a copy of the police report, indictment, and criminal docket sheet showing that Harris was the Jag’s driver. However, they are ignored and Harris and Powell are able to spin a similar story about Peoples’ involvement.
The Sixth Circuit partially reversed the decision relating to Peoples’ ineffective assistance of counsel claim and remanded the case to the district court to conditionally grant a habeas corpus writ, giving the State of Michigan 90 days to retry Peoples or release him from custody. Quoting the opinion, “ ‘[i]t is particularly unreasonable to fail to track down readily available and likely useful evidence that a client himself asks his counsel to obtain.’ Couch v. Booker, 632 F.3d 241, 247 (6th Cir. 2011). Where, as here, counsel fails to use a police report, indictments, and criminal docket sheets the client himself obtained that would have proven counsel’s own defense theory, the failure is, a fortiori, unreasonable to the point of constitutional deficiency. It certainly is not, by any objective measure, sound trial strategy.”
The appellate court’s AEDPA deference delved into discussions of a “modified form of AEDPA deference,” in which the court focuses on the result rather than the reasoning of the state court. Hawkins v. Coyle, 547 F.3d 540, 546 (6th Cir. 2008). The question then, according to the court, is whether there was a reasonable likelihood that the trial’s outcome would have been different if the known false testimony had never been presented. The court concluded that there was other testimony connecting him to the murder so there was no reasonable likelihood that the outcome would have been acquittal or conviction on a lesser charge. Keep in mind, the court decided in this case to “REMAND the case to the district court with instructions to conditionally GRANT a writ of habeas corpus.”
The Michigan Supreme Court just granted permission to appeal on People v Carp and People v Eliason. These cases deal with the retroactivity of the United States Supreme Court’s ruling in Miller v Alabama (Carp); and the appropriate remedy should be for these individuals (Eliason). The Court has also agreed to hear a third case where the question is whether a juvenile convicted of aiding and abetting first degree murder can potentially receive a natural life sentence or whether Graham v Florida bars this. I will post an update to this with links to the various orders in the near future. In the mean time, here is a good link from M-Live.
Hats off to the Canadian Supreme Court in Regina v Vu, 2013 SCC 60 (2013) for recognizing what so many American courts don’t seem to get -- that computers are different. Police are now routinely seeking (and unfortunately getting permission) to search everyone’s computers when they have probable cause of any evidence of crimes. The Canadian Supreme Court said that there has to be individualized probable cause to search a computer and that the police cannot get to its contents by virtue a general search warrant to search a home.