Friedman Legal Solutions, PLLC

Criminal Appellate & Post-Conviction Services

Michigan Court of Appeals Holds that Same Disqualification Rules that Apply in Civil Cases Apply to Prosecutor

Gary Davenport's was charged with sexually assaulting a student in his small Presque Isle County School. Mr. Davenport’s attorney accepted a job at the prosecutor's office during the middle of Mr. Davenport's criminal prosecution. His defense attorney never challenged this or took any efforts to make sure that the small prosecutor's office had an effective Chinese Wall in place In a unanimous opinion, the court of Appeals reversed his conviction and sent the matter back to the trial court for an evidentiary hearing where the prosecution was required to prove that there was an adequate Chinese wall in place. Here is our brief in the case:
Brief 011207

Suicide Note Confessing to Murder is Inadmissible in Accomplices Murder Trial

According to the Detroit News, U.S. District Court Judge Victoria Roberts on Wednesday ordered a new trial for 36-year-old Sharee Miller of Mount Morris. Roberts ruled it was wrong to allow a suicide note by Jerry Cassaday into evidence.Prosecutors say Sharee Miller persuaded Cassaday to kill her husband, Bruce. Cassaday later killed himself and left a note implicating Sharee Miller. She was sentenced to life in prison in the 1999 slaying. Judge Roberts granted the habeas corpus because the admission of the note violated the defendant’s Sixth Amendment right to a new trial under Crawford. Genesee County prosecutor David Leyton told The Flint Journal he would urge an appeal of the judge's order.
Update: For a copy of the ruling, click here.
miller v stovall

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."

Michigan Supreme Court Rejects "Bubble Bursting" Theory of Sentencing Departures

The Limits to Consent