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Criminal Appellate & Post-Conviction Services

Mich. Sup. Ct Hands Down Major Confrontation Case

The Michigan Supreme Court just released its opinion in People v Fackelman. In a 5-2 opinion by Justice Markman, the Court ruled that a prosecutor’s use of a non-testifying expert's report in examination of testifying experts and in jury argument violated the Sixth Amendment.  Justice Young wrote a forty-one page dissent, joined by Justice Zahra.

Charles Fackelman’s teenaged son was killed in an auto accident. A year later, Fackelman drove to the house of Randy Krell, whom he blamed for his son’s death. Mr. Fackelman threatened Krell and another person with a gun. The Defendant fled, but was eventually found and committed to a hospital. While there, he was examined by a psychiatrist, Dr. Agha Shahid. In his report, Shahid diagnosed Fackelman as suffering from a single episode of major depression, without psychosis. Fackelman was charged with first-degree home invasion, two counts of felonious assault, and one count of felony-firearm. Mr. Fackelman asserted an insanity defense and called an expert witness who believed the Defendant was insane. The prosecutor also called an expert witness, who concluded that Fackelman was depressed but not legally insane. When the prosecutor examined the two expert witnesses at trial, he read significant portions of Shahid’s report, and he stressed Shahid’s opinions during his closing argument. Shahid did not testify at trial, and his report was not admitted into evidence. The jury returned a verdict of guilty but mentally ill. Fackelman appealed to the Court of Appeals, and asked that the court remand the case to the trial court for an evidentiary hearing concerning the prosecutor’s use of Shahid’s report, and whether defense counsel provided constitutionally ineffective representation. Among other things, Fackelman argued that the use of the report at trial violated his constitutional right to confront the witnesses against him, as described in Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004). In Crawford, the U.S. Supreme Court held that the Sixth Amendment’s Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross examination.” The Court of Appeals granted the motion to remand. After holding an evidentiary hearing, the trial court affirmed Fackelman’s convictions. The Court of Appeals then reviewed the trial court’s ruling, and affirmed Fackelman’s convictions in an unpublished per curiam opinion. The Court of Appeals held that the prosecutor properly used Shahid’s report to impeach the defense expert. While the prosecutor erred in using the report to bolster questioning of the prosecution’s expert, this error was harmless, the panel said, because there was ample other evidence to support the jury’s verdict. The appeals court also rejected Fackelman’s claim that his counsel provided constitutionally ineffective representation. Fackelman appeals. A five to two majority sided with the defense.
Congratulations to my friend John Minock on an impressive win. Click here for access to the party briefs.