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Criminal Appellate & Post-Conviction Services

Attorney General Schuette Appoints Bursch Solicitor General

Attorney General Bill Schuette named John Bursch as Michigan’s Solicitor General. Former Solicitor General Eric Restuccia will continue on as deputy. John Bursch is very highly regarded appellate attorney from the civil firm of Warner, Norcross, and Judd. Eric Restuccia previously served as Michigan’s solicitor general from 2008-2011. During his tenure, the U.S. Supreme Court granted six petitions filed by the State of Michigan. While I firmly respect John Bursch’s skills, Eric is regarded as a gentleman and a truly top legal mind by both criminal defense attorneys and prosecutors alike. Given his nearly unprecedented victory rate in front of the high court, one has to question this repositioning.

New Parole Board Announced

As was noted earlier, Governor Snyder issued an executive order reorganizing the Parole Board and moving them from an executive level position to a position under the Department of Corrections. Because of this, a new Board was appointed. The MDOC issued a press release yesterday containing the composition of the new Board. Many of the old Board members will remain, but Tom Combs is now the chair. Barb Sampson is now just an ordinary Board Member. The new appointments seem to come mostly from law enforcement. It is unclear how this will effect the policies of the Board.

SCOTUS Reverses Favorable Michigan Supreme Court Ruling in Bryant: Victim's Crime Scene ID of the Defendant is Not Testimonial Under Crawford (Updated)

This is a reworked version of my post on yesterday’s Supreme Court ruling in Michigan v Bryant. An individual was shot in a gas station and told the responding police that the defendant was the shooter. The Michigan Supreme Court ruled that the statement was testimonial. Because the statement was testimonial in nature and made out of court, the Michigan Supreme Court found that the statement was inadmissible under its modern approach tot he confrontation clause.

This case should have been an easy win for the defense, but shockingly the State won. Reversing the Michigan Supreme Court, the US Supreme Court found that the statement was non-testimonial because the victim’s primary motivation was to help the police, rather than give an official statement. The Court seems to be stretching its prior ruling in
Davis v Washington prior ruling to the breaking point.

Justices Scalia and Ginsburg dissented.
Justice Scalia called the majority’s account of the facts of the case “so transparently false that professing to believe it demeans this institution.” “In its vain attempt to make the incredible plausible,” he went on, “today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shamble. (Justice Ginsburg’s dissent was short and less important. Because Justice Scalia is the captain (or at least the discovering archeologist of the modern confrontation clause, his scathing (and I mean scathing) dissent is particularly important.

As Justice Scalia suggested, this ruling appears to be a retrenchment from Crawford. What seems particularly disconcerting is that the Court found that given the nature of the event, there was little motive for fabrication. The Court looked by analogy to the Rules of Evidence to draw this conclusion and stated that the Rules were a good guidepost. This seems like a move in the direction of
Ohio v Roberts. Roberts was directly overruled by Crawford v Washington.

As Justice Scalia pointed out: “
Is it possible that the Court does not recognize the contradiction between its focus on reliable statements and Crawford’s focus on testimonial ones? Does it not realize that the two cannot coexist? Or does it intend, by following today’s illogical roadmap, to resurrect Roberts by a thousand unprincipled distinctions without ever explicitly overruling Crawford? After all, honestly overruling Crawford would destroy the illusion of judicial minimalism and restraint. And it would force the Court to explain how the Justices’ preference comports with the meaning of the Confrontation Clause that the People adopted—or to confess that only the Justices’ preference really matters.” This death by a thousand cuts prediction is very troubling.

Very little is out about by the ruling so far. Hear is a link to an excellent transcript of the oral argument of the Bryant case by Attorneys Peter VanHoek of the State Appellate Defender’s Office for Richard Perry Bryant, Attorney Lori Baughman Palmer of the Wayne County Prosecutor’s Office for the State of Michigan, and Deputy Solicitor General Leondra R. Kruger for the U.S. Department of Justice. Here is a link to the briefs of the case (middle of the page).

New York Times has a nice analysis. Professor Collin Miller at the John Marshall Law School in Chicago has been blogging in busts about the ruling. Professor Richard Friedman the leading authority on this issue has noted the decision, but has not released his in depth analysis. His preliminary comments indicate concerns similar to Justice Scalia’s. As Orin Kerr noted over at the Volokh Conspiracy, Justice Scalia’s solo dissent (Justice Ginsburg wrote a small separate dissent) is ominous. Professor Friedman filed his own pro se amicus brief in Bryant supporting the Michigan Supreme Court. In that brief, Professor Friedman argued that the Court should look at the statement from the vantage point of the speaker, should not focus on the formality of the statement, and argued that the only theory possibly justifying admission of the statement was forfeiture. His viewpoint did not carry the day.

Sixth Circuit Affirms Grant of Habeas Based on Failure to Hire Expert

Congratulations goes out to Plymouth Attorney Carole M. Stanyar for her win in the Sixth Circuit in Couch v Booker, Sixth Circuit No. 09-2230 which upheld Judge Arthur Tarnow’s grant of a habeas corpus below. Couch v Booker, 650 F Supp 683 (ED Mich, 2009).

Defense counsel failed to fully explore a causation defense. The defense attorney consulted with a noted pathologist, but failed to give him the full file. Because of this, a vital causation defense was missed. The Michigan Court of Appeals denied the Defendant an evidentiary hearing and affirmed the conviction. The federal court held an evidentiary hearing, and found that counsel was ineffective. The Sixth Circuit upheld the conviction finding that the Michigan Court’s decision was objectively unreasonable. The Court found that the ruling of was an unreasonable application of clearly established federal law. Critically, the Sixth Circuit found that the presumption of strategy afforded to an attorney’s decision could only take place after counsel did the required investigation.

Credit goes to my friend Patrick Rose at for spotting this ruling. He has a much more extensive discussion of the ruling