Innocence by impossibility

By John Masson
U-M College of Law

In July, the Michigan Supreme Court overturned a felony child support conviction against Michigan Innocence Clinic client Selesa Likine. Then, in a second noteworthy victory for the clinic, the attorney general permanently dismissed all the charges this month.

Likine spent four years on felony probation and served 43 days in jail in a case that might have confounded Franz Kafka. That’s because Likine’s case, according to Innocence Clinic cofounder and Michigan Law professor David Moran goes to the key legal question of whether a defendant can be convicted of a felony for failing to do something that is literally impossible for that defendant to do.

The background: Likine was charged with felony failure to pay child support in 2008, after she became ill with schizophrenia severe enough to require several involuntary hospitalizations. She lost her job, was declared totally disabled by the Social Security Administration, and was awarded disability payments of $600 per month. At the same time, though, her child support payments were increased from $100 per month to $1,000 per month because of an administrative error.

And here’s why Kafka would feel right at home inside Likine’s case: A 2004 decision by the Michigan Court of Appeals held that failure to pay child support is a “strict liability” offense — meaning, defendants were not allowed to prove that it would have been utterly impossible for them to comply with the law. It’s as if you had been in a coma for two years, then been charged with a felony for failing to file an income tax return while you were comatose.

“We believe that the Michigan Court of Appeals holding that a defendant can be convicted of a felony for a completely involuntary action or failure to act is the only such ruling ever made by a federal or state court,” Prof. Moran said. “Every first-year law student learns that a voluntary actus reus, a so-called guilty act, is an absolute prerequisite for criminal liability. No American court had ever upheld an exception to this rule before.”

In Likine’s case, an Oakland County judge held that the Court of Appeals’ decision meant that Likine wouldn’t be allowed to explain to the jurors that she couldn’t make her payments because she was unemployed and hospitalized, nor would she even be allowed to point out that the payments had been set erroneously high, at a level nearly twice her monthly income.

Prof. Moran said the trial became even more bizarre when the deliberating jury sent out a note directly asking whether she had been employed during the period in question.

“The judge had to tell the jury that information wasn’t relevant,” Moran said. “So the jurors never learned she was unemployed, let alone that she spent much of that period involuntarily hospitalized.”

Moran said the Innocence Clinic decided to take the case — even though it doesn’t fit with its usual fare of cases of actual innocence in which DNA isn’t available — because “if someone is prosecuted for failing to perform an action that it was impossible to perform, that person is actually innocent.”

The clinic took on the case with the help of Mike Steinberg of the ACLU of Michigan and attorney Mark Kriger, who signed on pro bono as co-counsel. The clinic appealed Likine’s conviction, but the Court of Appeals affirmed the verdict. The Michigan Supreme Court, however, reversed that decision and ordered a new trial in July, holding that Likine was constitutionally entitled to prove that it was impossible for her to pay the assessed child support. The attorney general’s office ultimately decided, just days ago, that further prosecution would be untenable.

Which is good news, as far as Moran and others at the Innocence Clinic are concerned.

“When we looked at this case and realized it was an involuntary act,” Moran said, “there really wasn’t any question.”