Michigan Supreme Court to hear oral argument on false-confession experts' testimony

A man accused of murdering his brother and sister-in-law in their Livingston County home, and who confessed to the killings to police, seeks to reverse a trial judge's ruling barring him from presenting expert testimony regarding false confessions, in a case that the Michigan Supreme Court will hear in oral arguments Wednesday. In People v Kowalski, the accused sought to introduce testimony from two expert witnesses regarding the phenomenon of false confessions, and the interrogation techniques and psychological factors that tend to generate them. But the trial judge did not allow the testimony, partly out of concern that the experts could in effect be telling the jury that the defendant's confession was false; the jurors could make that determination on their own, the trial judge decided. The Court of Appeals upheld the trial court in a 2-1 decision; the dissenting judge would have allowed testimony from one expert, who would have addressed the defendant's personality and explained the defendant's mental state during the confession. Today, the Supreme Court will hear two criminal sexual conduct cases, People v Watkins and People v Pullen, in which each defendant was charged with performing sexual acts with minors. In each case, the prosecution sought to introduce evidence that the defendant committed sexual acts with another minor; MCL 768.27a provides that, "in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant." But the defendants argued that the evidence should be excluded, partly because of an evidence rule that bars even relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury ...." Also before the Court is People v Buie, in which the defendant, who was convicted of sexually assaulting a woman and two children, argues that his constitutional right to confront the witnesses against him was violated when two expert witnesses for the prosecution were allowed to testify for the trial via two-way videoconference. The remaining nine cases the Court will hear include constitutional, contract, criminal, environmental, medical malpractice, municipal, negligence, and tort law issues. The Court hears oral arguments in its courtroom on the sixth floor of the Michigan Hall of Justice on Nov. 8, 9, and 10, starting at 9:30 a.m. each day. The Court's oral arguments are open to the public. Summaries of today's cases were published in Monday's edition of the Detroit Legal News. Summaries of tomorrow's cases follow: DEQ v Worth Twp (case no. 141810) Attorney for the plaintiff Department of Environmental Quality and Director of the Department of Environmental Quality: Alan F. Hoffman Attorney for the defendant Township of Worth: Michael G. Woodworth Issue: Privately owned septic tanks are discharging effluent into Lake Huron along a five-mile strip of shoreline located in Worth Township. The Michigan Department of Environmental Quality and its director sued the township after the township declined to install a public sanitary sewer system. The trial court ruled in the department's favor, ordering the township to take corrective action; the court also ordered the township to pay a fine and the department's attorney fees. The Court of Appeals reversed in a split published opinion. Does the Natural Resources and Environmental Protection Act, MCL 324.101, et seq., empower a circuit court to order a township to install a municipal sanitary sewer system when a widespread failure of private septic systems results in contamination of lake waters? Background: Worth Township, located in Sanilac County along the shores of Lake Huron, does not operate a public sanitary-sewerage system; local residences and businesses rely on private septic systems for waste disposal. Some of these septic systems located along a five-mile strip of shoreline are failing, and effluent is being discharged into Lake Huron. The Michigan Department of Environmental Quality encouraged the township to install a public sanitary-sewerage system, but the township concluded that such a project was not financially feasible. The department and its director sued the township, arguing that, under the Natural Resources and Environmental Protection Act, the township was responsible for the discharge and should be compelled to correct the situation. The act states in part that "[t]he discharge of any raw sewage of human origin, directly or indirectly, into the waters of this state shall be considered prima facie evidence of a violation of this part by the municipality in which the discharge originated unless the discharge is permitted by an order or rule of the department." MCL 324.3109(2). The township argued that it could not be held liable for the discharge of sewage from privately owned septic tanks. The trial court disagreed and ruled in the department's favor, setting a time frame for the township to design, begin construction on, and begin operating a sewerage system. The order also imposed a $60,000 fine and awarded attorney fees to the department. The township appealed to the Court of Appeals, which reversed in a split published opinion and remanded the case to the trial court for a ruling in the township's favor. A majority of the Court of Appeals held that MCL 324.3109(2) did not impose liability on the township; rather, the statute merely created a presumption that the township was the source of the discharge, the majority said. The majority added that Worth Township could advance a "particularly compelling argument that it was not the source of the violation: it does not operate a sanitary-sewerage system that could be the source of the discharge." Because the township was not responsible for the discharge, it was not subject to the statutory remedies for a discharge, the majority reasoned. The dissenting Court of Appeals judge would have affirmed the trial court's ruling. He concluded that MCL 324.3109(2) imposes liability on a municipality, including a township, for any discharge of raw sewage of human origin into the waters of the state, if the discharge occurred within the municipality's borders. The department appeals. Johnson v Pastoriza (case no. 142172) Attorney for the plaintiff Candice Johnson and Baby Johnson: Don Ferris Attorney for the defendant Rajan Pastoriza, M.D., and Rajan Pastoriza, M.D. P.L.C., d/b/a Women's First Health Services: Beth A. Wittmann Issue: The plaintiff gave premature birth to a non-viable fetus. On behalf of her child and herself, she sued her doctor for wrongful death of a fetus under MCL 600.2922a, and also sought damages for her own emotional distress. The defendants argued that they could not be held liable for their failure to act and that they were protected by the statutory exclusion for the performance of medical procedures at MCL 600.2922a(2)(b). They also argued that the plaintiff could not recover for her own emotional distress in this wrongful-death lawsuit. The trial court denied the defendants' motions to dismiss the case, and the Court of Appeals affirmed the trial court in a published opinion. Did the courts err in ruling that the plaintiff could proceed under the wrongful death act against a medical professional for the death of her non-viable fetus? Background: Candice Johnson has a medical condition that causes her cervix to open prematurely during pregnancy, causing her to have a number of miscarriages. Despite this condition, she was able to carry three pregnancies to term when her doctor performed a cerclage, a procedure in which the cervix was stitched closed to prevent it from opening prematurely. Doctor Rajan Pastoriza treated Johnson during her pregnancy in 2005; he was aware of Johnson's medical history. During an appointment on October 19, 2005, Johnson complained of cramping and a feeling she described as "like pre-term labor," she asked Pastoriza to perform a cerclage, but he declined. On November 1, Johnson's cervix opened; despite an emergency cerclage, she prematurely delivered a non-viable fetus at 20 weeks gestation. Johnson, on behalf of herself and Baby Johnson, sued Pastoriza and his professional corporation, seeking damages for medical malpractice, including a claim for her own emotional distress, and for wrongful death of a fetus under MCL 600.2922a. MCL 600.2922a(1) allows for recovery against "[a] person who commits a wrongful or negligent act against a pregnant individual . . . if the act results in a miscarriage or stillbirth by that individual, or physical injury to or the death of the embryo or fetus." MCL 600.2922a(2) provides several exceptions to that general liability; subsection (b) excludes liability for a "medical procedure performed by a physician or other licensed health professional within the scope of his or her practice and with the pregnant individual's consent. . . ." Pastoriza moved to dismiss the case, arguing that his alleged negligence did not make him liable under MCL 600.2922a; he contended that he did not commit a "wrongful or negligent act," as required by the statute. Pastoriza also argued that the exception for medical procedures, at MCL 600.2922a(2)(b), exempted him from liability. Johnson responded that Pastoriza's refusal to perform the cerclage was an affirmative act. Moreover, she contended, MCL 600.2922a ties into the wrongful-death act, MCL 600.2922, which allows actions for a fetus' death when it is caused by a wrongful act or negligence. MCL 600.2922(1), as amended in 2005, states that whenever ". . . death as described in section 2922a shall be caused by wrongful act, neglect, or fault of another . . . the person who . . . would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the . . . death as described in section 2922a . . . ." The trial court was persuaded by Johnson's arguments and denied Pastoriza's motion for summary disposition. In a published opinion, the Court of Appeals affirmed the trial court's ruling. The panel reasoned that MCL 600.2922(1), the general wrongful death statute, allows a wrongful death claim to be made "[w]henever . . . death as described in section 2922a shall be caused by wrongful act, neglect, or fault of another. . . ." The Court of Appeals concluded that this provision did not allow a defendant to rely on the exception found in MCL 2922a(2)(b) because, "[w]hile MCL 600.6922 references 'a death described in MCL 600.6922a,' it does not indicate that the death in question must occur in the manner described in MCL 600.2922a." Accordingly, Johnson's claim of negligence "sufficiently establishes a cause of action pursuant to MCL 600.6922." In the alternative, the court held, Pastoriza's refusal to perform a cerclage was an affirmative act giving rise to liability under MCL 600.2922a; the exception for physicians performing medical procedures did not apply because no medical procedure was performed, the court reasoned. The court also determined that Johnson could bring her emotional distress claim both under the wrongful death act, MCL 600.2922(6)(d), and under a medical malpractice theory. The defendants appeal. People v Franklin (case no. 1423230) Attorney for plaintiff the People of the State of Michigan: Timothy A. Baughman Attorney for defendant Joseph Alexander Franklin: Joseph L. Stewart Issue: The defendant pleaded guilty to second-degree home invasion in exchange for the prosecution's agreement to dismiss other charges. At the plea hearing, the trial judge was agreeable to sentencing the defendant under the Holmes Youthful Trainee Act, MCL 762.11, if the defendant qualified for such status. But at the sentencing hearing, the judge declined to impose a HYTA sentence; the judge vacated the plea agreement, reinstated the original charges, and set the case for trial. The defendant was convicted as charged. The Court of Appeals vacated the convictions, holding that the judge acted improperly by unilaterally vacating the plea agreement. Was the trial judge required to give the defendant the opportunity to affirm his guilty plea when she declined to impose the sentence proposed at the plea hearing? Should the question of the defendant's right to affirm his guilty plea be evaluated under MCR 6.310(B)(2)(a) or MCR 6.310(B)(2)(b)? Even if the defendant had the right to affirm his guilty plea, did he waive that right by failing to object when the trial court vacated his plea and scheduled a trial? Background: Joseph Franklin was charged with first-degree home invasion, larceny in a building, larceny of a firearm, and felony-firearm. He pleaded guilty to second-degree home invasion in exchange for the prosecutor's agreement to dismiss the remaining charges. Franklin's attorney asked for an evaluation pursuant to People v Cobbs, 443 Mich 276, 283 (1993), from the trial court, asking that Franklin be sentenced to probation under the Holmes Youthful Trainee Act , MCL 762.11, if he qualified for it. A Cobbs evaluation is the judge's initial determination of the appropriate sentence for the charged offense, based on information available at the plea proceeding. The judge's evaluation must be made at a party's request and not on the judge's own initiative. The trial judge in Franklin's case initially agreed to probation, and the prosecutor did not object. But when Franklin appeared for sentencing, the trial judge stated that she would not sentence him to probation under HYTA. She set aside the plea and scheduled a trial on all the charges. Franklin waived his right to a jury, and was convicted following a bench trial of first-degree home invasion, larceny in a building, and larceny of a firearm. He was sentenced to four to 20 years in prison for the first-degree home invasion conviction, and to time served for the other convictions. Franklin appealed, and the Court of Appeals vacated his convictions in an unpublished per curiam opinion. The appellate court said that the "pivotal question is whether the trial court could, after concluding that it would not impose the sentence agreed upon by the parties, unilaterally set aside the plea and sentence agreement, or if it could only refuse to impose the agreed upon sentence and allow defendant the option to withdraw his guilty plea . . . ." The Court of Appeals turned to MCR 6.302(C)(3), which states that if a court does not choose to follow an agreed-upon sentence, the defendant "will be allowed to withdraw from the plea agreement." Under this rule, the trial court could not unilaterally set aside the plea itself; that decision should be made by the defendant, the Court of Appeals held, in accordance with the requirements of MCR 6.310(B)(2)(a). The trial judge's failure to inform Franklin what sentence she intended to impose, and her failure to allow Franklin the option of withdrawing his plea, amounted to plain error, the Court of Appeals said. The Court of Appeals remanded the case to the trial court so that Franklin could be given the opportunity to withdraw his guilty plea to second-degree home invasion. If Franklin chose not to withdraw his plea, the Court of Appeals held, the trial court should then sentence him. The prosecutor appeals. People v Kowalski (case no. 141932) Attorney for the plaintiff the People of the State of Michigan: William J. Vailliencourt, Jr. Attorneys for the defendant Jerome Walter Kowalski: Walter J. Piszczatowski and Michael J. Rex Issue: The defendant seeks to present expert testimony regarding interrogation techniques that tend to generate false confessions, and regarding aspects of his psychological makeup that, he argues, make him vulnerable to falsely confessing. The trial court excluded the testimony of his two proffered expert witnesses, and the Court of Appeals affirmed. Is the defendant's proffered expert testimony regarding the existence of false confessions, and the interrogation techniques and psychological factors that tend to generate false confessions, admissible under MRE 702? Is the probative value of the proffered expert testimony substantially outweighed by the danger of unfair prejudice? Did the trial court's order excluding the defendant's proffered expert testimony deny the defendant his constitutional right to present a defense? Background: On May 1, 2008, Richard and Brenda Kowalski were found shot to death in their Oceola Township home. On the day that the bodies were discovered, police questioned Jerome Kowalski, the brother of Richard Kowalski. Five days later, Kowalski came to the police station, at the request of police, for follow-up questioning. Officers interrogated Kowalski for two hours, and asked him to take a polygraph examination. Approximately one hour into the pre-test interview, Kowalski told the polygrapher that he dreamed that he shot his brother. At this point, police began to videotape the interrogation. The results of the polygraph were inconclusive, but after the test, two officers interrogated Kowalski for another hour and a half hours. Kowalski was arrested and transported to the jail, where he was detained. The next day, officers interrogated Kowalski for another five and a half hours. During that interrogation, Kowalski made numerous incriminating statements and ultimately confessed to the murders. After he was charged with the murders, Kowalski sought to suppress the incriminating statements he had made to the police. He filed a notice of intent to introduce the expert testimony of Dr. Richard Leo and Dr. Jeffrey Wendt. According to the notice, Leo would "give expert testimony concerning false confessions; that is, that they occur and some of the reasons that they are known to occur, that false confessions are associated with certain police interrogation techniques, and that some of those interrogation techniques were used in this case." Wendt, a forensic psychologist, was to testify that he administered several psychological evaluations to Kowalski and that he concluded that the circumstances surrounding Kowalski's communication with law enforcement "resulted in conditions that increased his likelihood of false confession." However, Wendt did not intend to offer testimony on the question of whether Kowalski made a false confession. Instead, his testimony was to address the "psychological and situational factors" bearing on the reliability of Kowalski's statements to the police. The prosecutor moved to suppress the proffered expert testimony, arguing that it was inadmissible under Michigan Rule of Evidence 702, which governs the admission of expert testimony, and Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579 (1993). Following a hearing at which both experts testified, the trial court ruled that the experts' proposed testimony was not admissible under MRE 702. The court held that Leo's methodology was unreliable and highly questionable; his testimony would not assist the jury and was not relevant, the court said, because Leo admitted that the same interrogation techniques that produce false confessions also produce true confessions. The court held that jurors could determine on their own whether Kowalski's confession lacked credibility. Moreover, the police witnesses could be cross-examined on the interrogation techniques and methods that they used, and the jury could consider this information in weighing the reliability of Kowalski's confession, the court stated. The court also held that Wendt's proposed testimony was not relevant because it could not be linked to proof of a false confession. Kowalski appealed the trial court's ruling. But in a split unpublished opinion, the Court of Appeals affirmed the trial court. The Court of Appeals majority noted that, although both experts testified that they would not opine regarding whether Kowalski made a false confession, that conclusion was implicit in their proposed testimonies. By implicitly giving an opinion as to whether Kowalski's confession was genuine, the experts would interfere with the jury's role in determining the confession's credibility and weight, the majority said. Thus, the proposed testimony could unfairly prejudice the trial; neither expert's proposed testimony had high probative value, the majority concluded. The dissenting Court of Appeals judge agreed that Leo's testimony concerning police interrogation techniques should be excluded. But the dissent would have reversed the trial court's ruling excluding that part of Leo's testimony that would educate the jury about false confessions. That false confessions do occur, even in the absence of mental illness or torture, is not within the jury's general understanding, the dissenting judge said. Likewise, Wendt's proposed testimony about Kowalski's state of mind during the confession should also have been admitted; Wendt's opinion that Kowalski's personality made him more susceptible to influence than normal was based on reliable methodologies and was highly relevant to explain Kowalski's mental state during the confession, the dissenting judge concluded. Kowalski appeals. Townships of Haring and Selma v City of Cadillac (case no. 142117-8) Attorney for the plaintiffs Charter Township of Haring and Township of Selma: Ronald M. Redick Attorney for the defendant City of Cadillac: Michael D. Homier Issue: In the mid-1970s, the city of Cadillac and Wexford County executed two contracts to allow nearby townships to use the city's wastewater treatment system. Both contracts were set to expire in 2017 unless renewed by the parties' agreement. In 2006, the city notified the townships that it did not intend to renew the contracts, absent the townships' annexation into the city. Three of the townships sued, claiming that the city had a legal obligation to allow them to continue using the wastewater treatment system at least through 2052 and possibly beyond. The trial court granted summary disposition to the city, and the Court of Appeals affirmed. Are the townships entitled to relief based on the holding of Washtenaw Co Health Dep't v T&M Chevrolet, Inc, 406 Mich 518 (1979), which states that "[w]hen ... an available sewer line crosses municipal boundaries, the municipality operating the sewer system may not condition connection on annexation of the properties involved when connection means abatement of a public health hazard"? Are plaintiffs' claims ripe for adjudication now, when the contracts have not yet expired? Background: The city of Cadillac and Wexford County entered into two contracts, one in 1977 and one in 1980, under which the city agreed to provide wastewater collection and treatment for local townships that bordered two polluted lakes. The contracts required a "buy-in" payment from the townships at a price equivalent to the proportion of each township's projected use of the city's wastewater treatment system. The contracts provided that the contracts would be in effect until 2017, but could be renewed for successive ten-year terms by the parties' agreement. In November 2006, the city notified the townships that it did not intend to renew the contracts upon their expiration in May 2017. Haring Township filed a complaint alleging that the city had a legal obligation to continue providing wastewater treatment and disposal service to it after the "ostensible" expiration of the 1980 contract on May 12, 2017. Shortly thereafter, Selma and Clam Lake Townships filed a complaint asserting a similar claim under the 1977 contract, initiating a second lawsuit. The plaintiff townships claimed that, by virtue of the contracts, they had purchased capacity in the city's wastewater treatment system. Because of this ownership interest, the plaintiff townships argued, the contracts' expiration dates were ambiguous. The townships also contended that, because the city had provided wastewater treatment services to the townships for 30 years, the city was a "public utility" that was required to continue providing such services, absent a qualifying basis for stopping services. The trial court consolidated the cases and granted summary disposition to the city. The trial court reasoned that the contracts contained clear and explicit termination language that was controlling, and that none of the townships' arguments entitled them to receive wastewater treatment services beyond the contracts' expiration. Haring and Selma appealed, and the Court of Appeals consolidated the appeals. In a split, published opinion, the Court of Appeals rejected the townships' arguments and affirmed the trial court's ruling. The Court of Appeals majority held that the contracts' termination date was controlling; that nothing in the contracts indicated that the townships had purchased an ownership interest in the capacity of the city's system; and that the city did not have an obligation, as a public utility, to continue providing sewer service to the townships after the contracts' termination date. In a dissenting opinion, one judge opined that the matter was not ripe for judicial review because the contracts did not expire until 2017; a future city council could decide to renew the contracts, the judge said. The townships appeal. Published: Tue, Nov 8, 2011

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