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Criminal Appellate & Post-Conviction Services

Mich. Sup. Ct. Refuses to Hear Lorinda Swain Appeal. Actual Innocence May be Irrelevant in Michigan.

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).