Michigan Court of Appeals Finds Ineffective Asisstance of Counsel In CSC CAse

Imagine facing criminal sexual conduct charges and then having the trial court fail to demand new jury deliberations when an alternate juror takes the place of a holdout, deadlocking juror who, by the way, waited to the last minute to tell others he once was the alleged perpetrator in a sexual misconduct investigation. Atta boy to attorney Mitch Foster, who, while representing David Paul Morikawa, legally persuaded a conservative Michigan Court of Appeals panel to reverse and remand the defendant-appellant’s jury conviction of two second—degree CSC counts. Mr. Morikawa will get a new trial thanks to this exceedingly rare finding of ineffective trial counsel assistance.
In an unpublished Aug. 27, 2013, opinion, the conservative court led by presiding Judge Michael Talbot, branded the original Iron Circuit Court's failure to demand new deliberations as “plain error.” The appellate court, in its non-binding opinion, cites MCR 6.411: “[i]f an alternate juror replaces a juror after the jury retires to consider its verdict, the court shall instruct the jury to begin its deliberations anew.” Errors in jury instructions, the appellate court emphasizes, are of a constitutional magnitude. People v. Tate, 244 Mich App 553, 567; 624 NW2d 524 (2001). There actually were two deadlocked jurors in this case. Juror K was the one who, upon questioning, revealed that he was at a Christmas party several years before when he touched a young girl during a group picture. He further revealed that he was cleared of any wrongdoing and said he did not mention the incident during voir dire for two reasons: He didn’t think the past would affect his judgment and he did not want to bring attention to himself. The court removed him from the case after further learning that “he had received a lot of peer pressure in the jury room.” Once an alternate was chosen, the court ordered the jury resume deliberations instead of starting anew, and the defense counsel politely declined the judge’s invitation for comments. “Given the existence of the original two ‘holdouts,’ this was obviously a close case,” the court wrote in its opinion, “and, when viewed in light of the error discussed infra, we find that it could indeed have had an effect in the outcome of the trial if the jury had begun deliberations anew with a new member and the fresh perspective that member would bring.”
The infra error was when the court gave sway to the prosecution in its line of questioning. The appellate court cited MRE 404(a), which says the only way prosecutors can introduce evidence of a non-testifying defendant’s character is if the defendant “first opens the door” by offering evidence of that character trait. The prosecutor was questioning a female witness about Mr. Morikawa and how she came to know him. After some routine questions, the prosecutor then asked the following: “And based upon your familiarity with him and with other troopers can you come to a conclusion or an opinion as to his credibility and veracity being truthfulness? Do you have an opinion?”
A: Yes, I do.
Q: What is it?
A: He is not credible.
The prosecutor had the witness clarify that she meant “truthful” when she said “credible.” There was no objection from defense counsel.
People v Morikawa, Court of Appeals No. 308016.

Wilful Blindness" Why Some Prosecutors Don't Want to Know About Police Perjury

The East Bay Express has a blog piece about the problem with police perjury and how many prosecutor’s do not think it is their obligation to check with police departments to see what history these officers have. Police who get caught lying are not always fired and when they are fired, they often stay in law enforcement -- just switching departments.


Some police departments maintain “Brady lists” of officers with troubled pasts. They try to keep these officers from being affiants in search warrants where possible and regard it as their duty to turn evidence of past scandals over to the defense. At least in California, however, there is no consistent policy about what is in a Brady policy or when a prosecutor has to go back to the police department looking for evidence of past lying on the part of a given officer.


The now disbanded California Commission on the Fair Administration of Justice had recommended in their 2008 report that prosecutor’s offices maintain strict and consistent Brady lists. Unfortunately, police departments have pushed back because they think that these lists will make these tainted cops unusable.


One of my new favorite blogs (the Open File) has a nice commentary on this article. The Open File about prosecutor misconduct and urging public accountability. Not surprisingly on the same page are articles about convictions being overturned because the police have failed to turn over more than 11,000 pages of exculpatory evidence in one case, of a federal judge in New Orleans overturning another conviction because their US Attorney’s Office elicited perjured testimony, and a 9th Circuit case overturning a money laundering case because the declassified summaries turned over to defense counsel were misleading and withheld favorable evidence.

As I was about hit the “publish button” on my software, I saw today’s story about Debra Milke, the German mother convicted of aiding and abetting the murder of her son and received the death penalty. The Maricopa County Arizona prosecutor had concealed the fact that the police officer who supposedly took her undocument “confession” had a long history of perjury. Not surprisingly, the prosecutor concealed evidence that the police had a history of perjury. Despite the fact that there was four incidents of perjury by the officer he was kept on the force. Judge Kozinski’s opinion can be found here. Chief Judge Kozinski is the chief judge of the Ninth Circuit a independent minded conservative. Despite the Arizona’s Attorney General’s vow to appeal this ruling, I don’t think he has much chance. While the US Supreme Court has not been kind to the Ninth Circuit, this error strongly suggests actual innocence and seems to be within the four corners of Brady.

SCOTUS Says Pro Se Litigants Can't Litigate Their Own Cases

Codifying what has been the practice for a number of years, the United States Supreme Court has said that a pro se litigant cannot argue their own case in front of the Supreme Court. Pro se litigation is constitutionally protected at the trial court, but courts have not completely extended the right on appeal. In the US Supreme Court, the theory is that the because the question before the Court is of national significance and it cannot be presumed that a pro se litigant can adequately protect the rights of others. Click here to read Joe Patrice from Above the Law’s blog on this practice.

Do Crime Labs Have an Inherent Conflict of Interest?

Detroit has filed for bankruptcy, and it’s obvious that Michigan’s property tax revenue stream is thinner than it once was. Municipalities have sometimes hiked fees to make up for the lost funds, and sometimes it’s obvious their attempts to Band Aid holes in their budgets are threatening the judicial system. The Huffington Post’s Radley Balko deserves kudos for taking note of people’s fears and noticing the monetary incentives now tempting over-exuberant crime analysts in the law enforcement field. His Aug. 29, 2013, article, “New Study Finds That State Crime Labs Are Paid Per Conviction,” begins with an elaboration on the cognitive bias existing when crime analysts report to a state police agency or state Attorney General’s Office. Put the analysts’ job assessments and job reviews under the microscope lens of police and prosecutors, and, of course, you’re going to find an analyst eager to use science to find a criminal. Especially these days, when the mighty dollar is of the essence.

In Balko’s latest article, he writes about a study clearly stating its premise: “The Criminal Justice Creates Incentives for False Convictions” by
Roger Koppl and Meghan Sacks. He details the most noteworthy finds such as a crime lab that receives $10 for each guilty plea or verdict from a speeding ticket and $50 for each DWI (Driving While Impaired) and drug offense. Another specious fact: An Illinois crime lab receives fees upon sex offense convictions.

As Balko says, “every analyst knows that a test result implicating a suspect will result in a fee paid to the lab. Every result that clears a suspect means no fee. They’re literally being paid to provide the analysis to win convictions.”

Balko finishes his article by noting scandals that arise from such practices. Balko isn’t the only one to predict more problems from such a compromised system.