People v. Sierb

Cavanagh, J.

(dissenting). The majority’s opinion today attempts to reach a conclusion that decides far more than the case before us. Instead of merely focusing on the task at hand, the majority seeks to effectively sound a death knell for the concept of substantive due process under Const 1963, art 1, § 17, and, for that matter, the Fourteenth Amendment of the United States Constitution, in the law of Michigan. Because I cannot agree with the majority’s result, or support its far-ranging dicta, I dissent.

i

In People v Thompson, 424 Mich 118 ; 379 NW2d 49 (1985), we were presented with the question whether a retrial, following a mistrial because of deadlocked jury, which itself followed the reversal of a jury conviction for legal error, violated, inter alia, the defendant’s due process rights. We found that, “[wjhile there may be cases in which repeated retrials after repeated jury deadlock might be so fundamentally unfair as to violate the due process guaranteed by Const 1963, art 1, § 17, or the Fourteenth Amendment to the United States Constitution, this case [was] not one of them.” Id. at 133.

In this case, the trial court, relying on our guidance in Thompson , believed that such a case was before it, and dismissed the charges against the defendant following two successive trials that resulted in jury *535 deadlock. The majority, rather than simply correcting the perceived error in the trial judge’s application of Thompson , instead beats a wholesale retreat from it, and effectively holds that, in fact, there can never be a case such as we contemplated in Thompson . 1

n

Defendant was the owner of a sports equipment store in Garden City. After about six months in business, he increased his insurance coverage on the contents of the store from $50,000 to $75,000. Two weeks later, on June 27, 1990, there was a fire at the store. Defendant left the store at approximately 4:15 P.M. to visit relatives out of town. The fire was reported at 7:15 P.M., and investigators determined it had been smoldering for a couple of hours. Defendant’s store suffered considerable damage, and adjacent businesses suffered smoke damage.

The investigation revealed no sign of illegal entry, and bum patterns of flammable liquid appeared on the floor in the area of the fire’s origin. At both trials, the defendant pointed out that charcoal grills and *536 lighter fluid were stored in this area, and argued that the investigators had not adequately tested to rule out those items as the cause of the markings.

The defendant was charged with one count of burning of real property 2 and one count of burning of insured property. 3 Defendant has apparently been out on bond throughout the proceedings. Defendant’s first trial occurred in June 1993 in Detroit Recorder’s Court with Judge Andrea J. Ferrara presiding. The trial lasted over parts of ten days. The prosecution apparently produced five expert witnesses, and the defense produced two. The jury could not reach a unanimous verdict, with the jury split ten to two or eight to four in favor of conviction.

The defendant was retried in February 1994, with Judge Samuel A. Turner presiding. The trial lasted approximately the same amount of time as the first, and similar expert witnesses were called by both sides. The jury again deadlocked, this time six to six.

The prosecution announced its intention to again retry the defendant. The defendant moved to dismiss, arguing the likelihood of yet another hung jury and that he would suffer substantial prejudice if retried again.

The motion was heard August 5, 1994, before Recorder’s Court Chief Judge Dalton A. Roberson. 4 Defense counsel argued that witnesses’ memories *537 were growing dim, and that defendant had twice been defended by retained counsel and had been forced to retain expert witnesses. The trial court agreed, and dismissed the charges, citing, among other things, the substantial financial prejudice to the defendant. The trial court ruled both on the record and in a written opinion, citing Thompson .

The prosecutor appealed in the Court of Appeals, which affirmed in a published opinion. 5 A separate opinion agreed with the Court’s underlying holding that a due process analysis applied in this situation, but dissented on its application to the instant facts. 6

m

While the majority quotes a collection of familiar authority regarding the common woes that befall a defendant who is charged with a crime under any circumstances, no mention is made of the peculiar facts of this case. The defendant was charged with the crime commonly referred to as arson. There was no direct evidence linking him to the fire, and the only indirect evidence that stood for the proposition that a crime had even been committed was the bum patterns on the floor, which indicated the presence of flammable liquids. The defendant came forward with evidence that flammable liquids were routinely stored in this area. This set the stage for a battle of expert witnesses in the field of fire cause and origin.

This case tinned entirely on expert testimony. If the jury believed the prosecution’s experts, a crime had *538 occurred, and the defendant was the most logical suspect. 7 If, however, the jury believed the defense experts, no crime had even occurred. In a case such as this, the availability of expert testimony is crucial. While the state has available to it numerous experts in the field of fire cause and origin, the defendant must turn to the private sector, where the rule of supply and demand favors high expert witness fees.

It is here I see a difference between this case and those authorities cited by the majority. It is without dispute that one who is charged with a crime will incur substantial attorney costs. Those who cannot afford an attorney are, of course, provided with assigned counsel. But while the appointment of necessary defense experts is required by statute, 8 given the majority’s past hostility toward the appointment of expert witnesses for the defense, 9 1 would not fault the defendant for finding no comfort in the slight possibility of obtaining appointed experts.

As the Court said in Thompson , due process is violated where there is a “ ‘failure to observe that fundamental fairness essential to the very concept of justice.’ ” 10 Because I cannot subscribe to the majority’s implication, throughout the dicta contained in part iv of its opinion, that such a concept has no place in the *539 criminal law of this state, I would apply a due process analysis here.

IV

Likewise, the majority’s effort regarding the purported applicability of the Fifth Amendment’s guarantee against double jeopardy to exclude any due process protection strikes me as misguided. The protection provided in the guarantee against double jeopardy is twofold. “The Clause secures the defendant’s interests in (1) the finality of judgments, and (2) protection against multiple prosecutions.” People v Anderson, 409 Mich 474, 482-483 ; 295 NW2d 482 (1980).

While this case certainly involves multiple prosecutions, the application of the due process analysis is not to the multiple prosecutions per se, but to the underlying result — will the defendant receive a fair trial? In this case, I am convinced that while yet another trial or two may eventually result in the defendant’s conviction, there is far too great a likelihood that such a result will directly follow the defendant becoming financially unable to retain experts of sufficient qualifications and capabilities as to adequately advance his theory of the case. The end to the concept of trial by ordeal long predates the law of our state, and I find it to be fundamentally unfair to return to it here.

v

The majority, after misconstruing the underlying issue and attempting to insure that this Court never again faces another claim of a substantive due process in a criminal case, continues still further, finding *540 a violation of the doctrine of separation of powers. It does so following a lengthy list of citations, but scant analysis. 11

Again, I find this unpersuasive. The majority believes that “absent a violation of the constitution or specific statutory authority, we are not persuaded that we have the authority or the wisdom to monitor the performance of the elected prosecutor.” Ante at 533. While this Court has often made it clear that there are aspects of a prosecutor’s role where the judicial branch has no call to intervene, 12 I question the “wisdom” of the majority’s statement.

Is the Court saying that, absent a specific violation of a specific constitutional provision, it has absolutely no right or duty to insure that a defendant receives a fair trial, or to prevent the prosecution from engaging in egregious conduct? It seems to me that, in actuality, our inherent constitutional authority to oversee the practice and procedure in our courts, Const 1963, art 6, § 5, must include some measure of requiring fairness in proceedings. I do not believe that, when one party is the prosecutor, the doctrine of separation of powers requires us to relinquish the inherent con *541 trol we maintain over the conduct of litigants before our courts.

As we noted in Anderson, when only one of the interests protected by the Double Jeopardy Clause is implicated, we engage in a balancing of the defendant’s and the state’s interests. Id. at 483-484. Under the majority’s analysis, it would seem that, because there is not a complete violation of a specific constitutional provision, we could not do such a thing. I cringe at the volume and breadth of precedent potentially impinged by such an analysis, and take solace only in the fact that it is included in repetitive and cumulative dicta. 13

*542 VI

The majority cites People v Dawson, 431 Mich 234 ; 427 NW2d 886 (1988), as not allowing the prosecutor to “retry a defendant after having one full and fair opportunity at obtaining a conviction.” Ante at 525. I agree, and recall our unanimous decision in that case, which, in adopting this view, reasoned, “[otherwise, the state could repeatedly prosecute persons for the same crime, transforming the trial process itself into a punishment and effectively punishing the accused without his having been adjudged guilty of an offense meriting punishment.” Dawson at 250-251 . Where, as here, the prosecution had not one, but two “full and fair” opportunities to obtain a conviction, and, admittedly, came forward for a third effort with no new evidence, the line marking that transformation of the trial process into an ongoing punishment was crossed.

I would analyze this case in accordance with our past decisions, and, in this case, find that a third retrial would be so prejudicial to the defendant as to violate his right to due process on these particular, and unusual, facts. I find the remainder of the majority’s opinion to be both unnecessary and unpersuasive. I dissent.

Kelly, J., concurred with Cavanagh, J.

I note that the author of Thompson is also the author of the majority opinion today. While the majority dismisses the quoted passage of Thompson as dicta, I should make two points. The first is that I argue not that this portion of Thompson is controlling, but rather, that prudence indicates that we take the same course as we did then, i.e., again, if this is not such a case, it still remains possible one might come before us.

Second, to the extent those in the majority would dismiss this language as merely ill-advised dicta, an assertion I disagree with, I note they still insist on attempting to stretch the instant opinion to cover a variety of situations not before the Court. To the extent one credits the majority’s disregard of nearly all the analysis included in part in of Thompson , to be at all consistent, one would have to seriously question the inclusion of at least parts IV through vi of the majority’s opinion, all of which are unnecessary to the decision today, as it is already controlled by the analysis in parts n and m of the majority’s opinion.

MCL 750.73; MSA 28.268.

MCL 750.75; MSA 28.270.

While the motion was argued by the same defense counsel and assistant prosecutor as appeared in the second trial (neither of whom had participated in the first trial), it was argued before Chief Judge Roberson, whose only prior involvement with the case was in hearing some pretrial motions. While, ordinarily, the judge who presided at trial would be in the best position to evaluate complaints such as those presented by the *537 defendant, it appears the Chief Judge here demonstrated adequate familiarity with the prior proceedings in this matter.

219 Mich App 127 ; 555 NW2d 728 (1996).

Id. at 136 , McDonald, J. (concurring in part and dissenting in part).

Recall, however, that the defendant also presented an alibi defense.

MCL 775.15; MSA 28.1252.

See People v Jacobsen, 448 Mich 639 ; 532 NW2d 838 (1995), where the Court, over the dissent of Justice Levin and this author, peremptorily reversed a decision of the Court of Appeals, which, over the dissent of another of my brethren when he was sitting on that Court, required the appointment of an expert witness in a case where the expert’s testimony was the sole avenue available for the defense to dispute the offense charged.

Thompson at 133 , quoting Dodge v Detroit Trust Co, 300 Mich 575, 618 ; 2 NW2d 509 (1942).

I pause to take issue with my sister Boyle’s favorite (mis)quote of People v Milbourn, 435 Mich 630, 656-657 ; 461 NW2d 1 (1990), stating that we refuse to require compliance with the sentencing guidelines because the Legislature has not mandated such compliance. If one merely, instead of reading only the sentence quoted, continues on to the following sentence and paragraph, it is apparent that the entire discussion concerned the fact that we, of course, have always allowed departures from the sentencing guidelines. We have, however, certainly required their use. See Administrative Order No. 1988-4. My sister continues in her confusion between the federal guidelines and Michigan’s, at least as far as the concept of “require [d] compliance” is concerned.

See Genesee Co Prosecutor v Genesee Circuit Judge, 391 Mich 115 ; 215 NW2d 145 (1974); Genesee Co Prosecutor v Genesee Circuit Judge, 386 Mich 672 ; 194 NW2d 693 (1972) .

Before I depart from this section of the majority’s opinion, I note the context of the lengthy quotation from Mays v East St Louis, 123 F3d 999, 1003 (CA 7, 1997), purported to be “equally appropriate to the relationship between the branches of state government and our citizens.” Ante at 532. While the quotation proclaims the virtue of majority rule over court decisions of substantive due process, Mays involved a claim of due process violations by injured and Wiled passengers in a vehicle that crashed while fleeing from a high-speed police pursuit. The context of the quotation is a discussion of weighing the dangers of a police pursuit with the dangers of letting criminals escape. I fail to see the parallel between this and anything decided today, other than perhaps an inclination, apparently shared by the majority, to assault the very concept of substantive due process on every ground imaginable.

I also question the presence of People v Fisher, 220 Mich App 133 ; 559 NW2d 318 (1996). The majority’s opinion takes “judicial notice” of the facts of this rather severe case. The defendant, a physician, was twice found guilty of the death of his wife, who was found wrapped in duct tape in their home. Both convictions were overturned. Two subsequent trials resulted in deadlocked juries. The defendant pleaded no contest just before a fifth trial. The opinion states that a holding for the defendant would mean that, arguably, all retrials where two mistrials have occurred would be prevented. Defendant did not argue this, neither the trial court nor the Court of Appeals held this, and I do not believe even the prosecution forecast this gloomy scenario, which would seem objectionable to all and would require as severe an abdication of any analysis of substantive due process as the majority undertakes today, but in the opposite direction. I certainly endorse no such thing.