By Ben Solis
Gongwer News Service
An indigent defendant facing trial – who had reasonable probability that his proposed expert would aid his defense but lacked funding to secure such an expert – had a fundamentally unfair proceeding because the court would not fund the expert, the Michigan Supreme Court ruled last Thursday in a 5-2 decision.
In an opinion written by Justice Kyra Harris Bolden, the high court's majority in People v. Warner (MSC Docket No. 163805) found that the Court of Appeals erred when it affirmed the Eaton Circuit Court's denial of a motion to fund the expert witness in question.
The ruling was joined by Chief Justice Elizabeth Clement, Justice Richard Bernstein, Justice Megan Cavanagh and Justice Elizabeth Welch. Bolden wrote that the Court of Appeals holding was to be reversed and the case remanded for further proceedings in the trial court.
Justice Brian Zahra wrote a dissenting opinion joined by Justice David Viviano.
This case arose from the defendant's conviction of criminal sexual conduct, which he appealed, and the Court of Appeals reversed the conviction. The case received a new trial, and the prosecutors there reinstated a previously dismissed additional CSC charge.
The jury in the second trial did not find him guilty of the CSC charge on which he was initially convicted but found him guilty of the reinstated charge that had originally been dropped.
A Court of Appeals panel affirmed, and the Supreme Court was asked, if a trial court may amend information, over objection, to include a charge that was dismissed pursuant to an order of nolle prosequi, without beginning the proceedings anew. If so, the bench was asked to determine if the Eaton Circuit Court had erred by doing so and if the error was harmless.
Bolden wrote that the majority disagreed with the appellate panel.
"The defendant showed a reasonable probability that his proposed expert would aid his defense and that, without funding to secure such an expert, his trial would be fundamentally unfair. The proposed expert would at least have identified circumstances and techniques tending to result in false confessions, which the jury could have found applicable to the defendant's confession," Bolden wrote. "The confession was the only corroborating evidence for PG's allegations and was central to the prosecution's case. Accordingly, in a trial in which the veracity of a confession is central, it is fundamentally unfair when an indigent defendant is deprived of 'an adequate opportunity to present their claims fairly' by being denied funding to support necessary expert assistance on false confessions."
Zahra eviscerated the majority opinion in his dissent, concluding that "in its zeal to provide the defendant with a state-funded expert witness," the majority "brushes past an essential threshold question that must be answered in the affirmative before awarding such an entitlement: whether defendant was in fact indigent."
"Instead, the majority opinion goes out of its way to conclude that defendant was constitutionally entitled to the appointment of a state-funded expert on false confessions and remands this matter to the trial court for further proceedings," Zahra wrote. "By this, the majority plainly intends a remand for an indigency determination – in other words, a determination of whether the majority opinion resolves a justiciable dispute or constitutes an unconstitutional advisory opinion.
This backward approach ignores the limits on our constitutional authority, flies in the face of long-established legal process, and violates fundamental principles of appellate review."
Zahra further stated that he believed the high court had no authority "to venture down the path of making legal pronouncements about factual scenarios not properly before it." In that regard, he would have denied leave to appeal.
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