By Ben Solis
Gongwer News Service
A trial judge’s private emails with a prosecutor regarding the details of a criminal sexual conduct case violated the Michigan Code of Judicial Conduct, but the violation did not warrant a new trial, a split Supreme Court ruled Tuesday.
The high court’s 4-3 opinion in People v. Loew (MSC Docket No. 164133), written by Chief Justice Elizabeth Clement, affirmed the Court of Appeals’ reversal of the decision to grant a new trial. But the bench split into factions over what case law applied and how it should have resolved the case.
The defendant was convicted of multiple counts of first-, second- and third-degree criminal sexual conduct. A judge, however, granted him a new trial on appeal because it was found that the judge had email communications with the prosecutor regarding specifics of the case.
The Court of Appeals reversed the decision as the communication did not violate court canons. The high court was asked to determine if the appellate panel correctly decided the matter, and whether a trial court could grant a new trial based on an appearance of impropriety, among other issues.
The chief justice, joined by Justice David Viviano and Justice Brian Zahra, found that even if due process does not require a judge to recuse themselves, if the judge failed to adhere to the appearance of impropriety standard based on objective and reasonable perceptions, court rules may require recusal.
In Loew, the trial judge commented about the police investigation and questioned whether the Department of State Police had detectives assigned and why the victim was not referred for a medical examination. In that regard, the Court of Appeals erred by concluding that the ex parte emails with Prosecutor Myrene Koch were for administrative purposes. They were not made for those purposes, Clement wrote, and were a violation of court canons.
Although the emails did not show bias, they might have caused an ordinary person to question the judge’s impartiality, Clement wrote. No matter the content, she added, it was a breach of the appearance of justice.
That said, ex parte communications are not wholly unconstitutional, but they might have the effect of depriving a defendant of their rights. Clement ultimately ruled that the defendant did not establish that he was deprived of his due process right to a trial presided over by an impartial judge and jury on the basis of the ex parte communication issue alone.
Clement further characterized the email exchanges as a brief, albeit inappropriate, side conversation about law enforcement’s negligence in the case, to which she said both the defendant and his counsel were acutely aware. There was nothing to suggest, Clement continued, that the trial prosecutor altered her strategy in response to the trial judge’s communications with Koch.
Recusal might have been the right thing to do, Clement wrote, but the judge’s failure to do so did not result in a miscarriage of justice. It also did not give a different trial court judge a legal basis to grant a new trial.
Arguments that a standard laid out in 1988 holding for Liljeberg v. Health Services Acquisition Corporation, which determined whether a new trial was warranted, were not adopted by Clement, Viviano and Zahra.
That latter decision over the case law and standard split the remaining justices nearly down the middle.
Justice Kyra Harris Bolden joined in part to conclude that the Court of Appeals committed no error when it reversed the Allegan Circuit Court’s grant of a new trial. Bolden also agreed with Clement and majority that Liljeberg standard did not apply.
Her agreement with the majority ended there, noting that she would not have concluded that the judge violated the Code of Judicial Conduct because the court’s analysis should have focused on the crux of the issue: whether the defendant’s trial was fair.
Justice Elizabeth Welch and Justice Megan Cavanagh dissented and argued the appellate court’s decision should have been reversed and remanded because the Liljeberg standard could be consistently applied with a harmless-error review under state law, where the alleged error is inappropriate ex parte communications by a trial judge that create an appearance of impropriety but do not create a constitutional violation.
But the pair, in an opinion by Welch, conceded that the controlling framework was precedent framework was precedent.
Justice Richard Bernstein agreed with the court’s decision to not adopt the Liljeberg standard, joined Bolden’s opinion that explained why Liljeberg was an unsuitable test and agreed with her that reliance on the Code of Conduct was unnecessary to resolve the case. Bernstein would have resolved the case on the constitutional question alone and noted that the majority’s approach was unfair to the defendant because it put the burden on him to demonstrate a miscarriage of justice. In all, Bernstein would have remanded the case with instructions to apply a different test and use that to determine if the defendant was entitled to a new trial.
Gongwer News Service
A trial judge’s private emails with a prosecutor regarding the details of a criminal sexual conduct case violated the Michigan Code of Judicial Conduct, but the violation did not warrant a new trial, a split Supreme Court ruled Tuesday.
The high court’s 4-3 opinion in People v. Loew (MSC Docket No. 164133), written by Chief Justice Elizabeth Clement, affirmed the Court of Appeals’ reversal of the decision to grant a new trial. But the bench split into factions over what case law applied and how it should have resolved the case.
The defendant was convicted of multiple counts of first-, second- and third-degree criminal sexual conduct. A judge, however, granted him a new trial on appeal because it was found that the judge had email communications with the prosecutor regarding specifics of the case.
The Court of Appeals reversed the decision as the communication did not violate court canons. The high court was asked to determine if the appellate panel correctly decided the matter, and whether a trial court could grant a new trial based on an appearance of impropriety, among other issues.
The chief justice, joined by Justice David Viviano and Justice Brian Zahra, found that even if due process does not require a judge to recuse themselves, if the judge failed to adhere to the appearance of impropriety standard based on objective and reasonable perceptions, court rules may require recusal.
In Loew, the trial judge commented about the police investigation and questioned whether the Department of State Police had detectives assigned and why the victim was not referred for a medical examination. In that regard, the Court of Appeals erred by concluding that the ex parte emails with Prosecutor Myrene Koch were for administrative purposes. They were not made for those purposes, Clement wrote, and were a violation of court canons.
Although the emails did not show bias, they might have caused an ordinary person to question the judge’s impartiality, Clement wrote. No matter the content, she added, it was a breach of the appearance of justice.
That said, ex parte communications are not wholly unconstitutional, but they might have the effect of depriving a defendant of their rights. Clement ultimately ruled that the defendant did not establish that he was deprived of his due process right to a trial presided over by an impartial judge and jury on the basis of the ex parte communication issue alone.
Clement further characterized the email exchanges as a brief, albeit inappropriate, side conversation about law enforcement’s negligence in the case, to which she said both the defendant and his counsel were acutely aware. There was nothing to suggest, Clement continued, that the trial prosecutor altered her strategy in response to the trial judge’s communications with Koch.
Recusal might have been the right thing to do, Clement wrote, but the judge’s failure to do so did not result in a miscarriage of justice. It also did not give a different trial court judge a legal basis to grant a new trial.
Arguments that a standard laid out in 1988 holding for Liljeberg v. Health Services Acquisition Corporation, which determined whether a new trial was warranted, were not adopted by Clement, Viviano and Zahra.
That latter decision over the case law and standard split the remaining justices nearly down the middle.
Justice Kyra Harris Bolden joined in part to conclude that the Court of Appeals committed no error when it reversed the Allegan Circuit Court’s grant of a new trial. Bolden also agreed with Clement and majority that Liljeberg standard did not apply.
Her agreement with the majority ended there, noting that she would not have concluded that the judge violated the Code of Judicial Conduct because the court’s analysis should have focused on the crux of the issue: whether the defendant’s trial was fair.
Justice Elizabeth Welch and Justice Megan Cavanagh dissented and argued the appellate court’s decision should have been reversed and remanded because the Liljeberg standard could be consistently applied with a harmless-error review under state law, where the alleged error is inappropriate ex parte communications by a trial judge that create an appearance of impropriety but do not create a constitutional violation.
But the pair, in an opinion by Welch, conceded that the controlling framework was precedent framework was precedent.
Justice Richard Bernstein agreed with the court’s decision to not adopt the Liljeberg standard, joined Bolden’s opinion that explained why Liljeberg was an unsuitable test and agreed with her that reliance on the Code of Conduct was unnecessary to resolve the case. Bernstein would have resolved the case on the constitutional question alone and noted that the majority’s approach was unfair to the defendant because it put the burden on him to demonstrate a miscarriage of justice. In all, Bernstein would have remanded the case with instructions to apply a different test and use that to determine if the defendant was entitled to a new trial.
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