January, 2015
Subscribers to the Criminal Defense Resource Center’s online resources, found at www.sado.org, have access to more than 1,800 appellate pleadings filed by SADO Attorneys in the last five years. The brief bank is updated regularly and is open to anyone who wants to subscribe to online access. On our site, briefs are searchable by keyword, results can be organized by relevance or date, and the pleadings can be filtered by court of filing. Below is a sample of some of the questions presented in briefs added to our brief bank in the last few weeks:
BB 241165: STATEMENTS MADE AT THE FORENSIC CENTER ARE ADMISSIBLE ONLY FOR A LIMITED PURPOSE. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT ON THIS BASIS, AND A NEW TRIAL SHOULD BE GRANTED.
BB 240768: DEFENDANT’S CONVICTIONS AND SENTENCES FOR COUNT ONE, TERRORISM, AND COUNT THREE, FALSE REPORT OR THREAT OF TERRORISM, SHOULD BE VACATED, AND THE CHARGES ORDERED DISMISSED WITH PREJUDICE, AS THE MICHIGAN ANTI-TERRORISM ACT DOES NOT APPLY TO THIS CASE.
BB 240965: DEFENDANT’S CONVICTIONS AND SENTENCES SHOULD BE VACATED, AND A NEW TRIAL SHOULD BE GRANTED, BECAUSE THE TRIAL COURT’S ERRONEOUS ADMISSION AS “DEMONSTRATIVE EVIDENCE” OF A REGULAR EXHIBIT (OVER DEFENSE COUNSEL’S OBJECTIONS), AND THE TRIAL COURT’S SUBSEQUENT FAILURE TO PROVIDE A LIMITING INSTRUCTION ON THAT EVIDENCE, CONSTITUTED CLEAR ERROR.
BB 240965: THE TRIAL COURT ABUSED ITS DISCRETION BY IMPROPERLY USURPING THE ROLE OF PROSECUTOR TO ESTABLISH THE REQUISITE STATISTICAL FOUNDATION FOR THE PROSECUTION’S DNA MATCH EVIDENCE.
BB 241171: THE TRIAL COURT ERRED IN REFUSING TO EXCUSE AN ADMITTEDLY BIASED JUROR FOR CAUSE, AND REQUIRED THE USE OF THE FINAL DEFENSE PEREMPTORY CHALLENGE TO REMOVE THAT JUROR, DEFENDANT’S CONVICTIONS SHOULD BE REVERSED AND REMANDED FOR A NEW TRIAL.
BB 241291: DEFENDANT’S CONVICTIONS SHOULD BE REVERSED, AND HE SHOULD BE GRANTED A NEW TRIAL, BECAUSE THE PROSECUTOR’S OFFER OF PROOF FOR THE OTHER ACTS EVIDENCE UNDER MRE 404(B) WAS NOT BORNE OUT AT TRIAL, AND THE TRIAL COURT JUDGE DID NOT PROVIDE A LIMITING INSTRUCTION TO EXCLUDE THE OTHER ACTS EVIDENCE AFTER THE PROSECUTOR FAILED TO DEMONSTRATE A COMMON PLAN OR SCHEME.
BB 241370: THE TRIAL COURT DEPRIVED DEFENDANT OF HIS RIGHT TO PRESENT A DEFENSE BY DENYING HIS REQUEST FOR AN ADJOURNMENT SO THAT HE COULD PRESENT AN EXPERT WITNESS, DR. OKLA, AT HIS TRIAL.
BB 241435: THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED DEFENDANT’S DUE PROCESS RIGHTS WHEN ORDERING RESTITUTION FOR CONDUCT WHICH WAS NOT CHARGED AND WHICH CANNOT BE ATTRIBUTED TO DEFENDANT'S CRIMINAL ACTS WHICH UNDERLIE THE CONVICTION IN THIS CASE.
BB 241729: DEFENSE TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE IN FAILING TO OBJECT TO THE DETECTIVE IN CHARGE OF THE CASE TESTIFYING THAT SHE WROTE A WARRANT REQUEST “DETAILING ALL OF THE PROBABLE CAUSE FOR THE CRIME” AND “WHY I BELIEVE THAT THIS PERSON IS THE ONE WHO COMMITTED IT AND THAT THERE IS A CRIME THAT ACTUALLY HAPPENED” WHICH AMOUNTED TO AN IMPROPER EXPRESSION OF OPINION OF GUILT.
BB 241729: DEFENSE TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE IN FAILING TO OBJECT TO THE PROSECUTOR SHIFTING THE BURDEN OF PROOF DURING CLOSING ARGUMENT WHEN THE PROSECUTOR STATED, CONCERNING THE COMPLAINANT’S TESTIMONY “WHERE IS THE CONTRADICTION OF THAT? DID YOU HEAR ANY EVIDENCE, WAS ANYTHING PRESENTED TO YOU THAT CONTRADICTS THAT, ANYTHING?” AND FURTHER “WHERE IS THE EVIDENCE THAT THAT DID NOT HAPPEN?”
BB 242423: DUE PROCESS REQUIRES THAT CREDIT BE GRANTED FOR THE TIME DEFENDANT SPENT INCARCERATED, APPROXIMATELY EIGHT MONTHS, EVEN THOUGH THE INSTANT OFFENSE WAS COMMITTED WHILE HE CLOSE TO BEING DISCHARGED FROM PAROLE.
BB 242356: DEFENDANT IS ENTITLED TO PLEA WITHDRAWAL WHERE HIS DEFENSE ATTORNEY FAILED TO ADVISE HIM OF SEX OFFENDER REGISTRATION CONSEQUENCES, INCLUDING A NEW 25-YEAR PERIOD OF REGISTRATION ON THE PUBLIC REGISTRY, THUS VIOLATING THE CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND ALSO CREATING AN UNKNOWING AND INVOLUNTARY PLEA UNDER THE STATE AND FEDERAL DUE PROCESS CLAUSES.
BB 242538: THE TRIAL JUDGE REVERSIBLY ERRED IN ADMITTING, OVER DEFENSE OBJECTION, EVIDENCE OF A HANDGUN FOUND IN A POST-CUSTODY SEARCH OF DEFENDANT’S RESIDENCE, WHERE THERE WAS NO ALLEGATION THAT ANY HANDGUN WAS USED DURING THE INCIDENT, AS THAT EVIDENCE WAS SUBSTANTIALLY MORE PREJUDICIAL THAN PROBATIVE, AND BECAUSE COUNSEL FOR THE CO-DEFENDANT ALSO BROUGHT OUT THAT DEFENDANT’S POSSESSION OF THIS HANDGUN WAS ILLEGAL.
BB 242538: DEFENDANT’S CONFRONTATION RIGHTS UNDER THE SIXTH AMENDMENT WERE VIOLATED WHERE THE TRIAL COURT, OVER OBJECTION, PERMITTED THE PROSECUTION TO INTRODUCE EVIDENCE, BEFORE THE JOINT JURY, OF THE CO-DEFENDANT’S CUSTODIAL STATEMENT TO THE POLICE, WHICH STATEMENT WAS NOT ADEQUATELY REDACTED TO REMOVE ALL REFERENCES TO DEFENDANT’S ALLEGED INVOLVEMENT IN THE CHARGED OFFENSES, AS THE CO-DEFENDANT DID NOT TESTIFY AT THE JOINT TRIAL AND WAS NOT SUBJECT TO CROSS-EXAMINATION, AND THE TRIAL COURT’S LIMITING INSTRUCTION TO THE JURY WAS INSUFFICIENT TO CURE THIS PLAIN CONSTITUTIONAL ERROR.
BB 242755: THE TRIAL JUDGE ABUSED HER DISCRETION IN RULING THE DEFENSE COULD NOT PRESENT ANY EVIDENCE, INCLUDING EXPERT TESTIMONY ON BATTERED PERSON SYNDROME, AS TO THE COMPLAINANT’S CHARACTER AND PRIOR ABUSIVE OR VIOLENT ACTIONS TOWARDS DEFENDANT, AND THUS PRECLUDED THE DEFENSE FROM SEEKING JURY INSTRUCTIONS ON MANSLAUGHTER AS A NECESSARILY INCLUDED LESSER OFFENSE, IN VIOLATION OF DEFENDANT’S CONSTITUTIONAL RIGHT TO PRESENT EVIDENCE IN SUPPORT OF THE DEFENSE THEORY.
BB 242755: WHERE THE RECORDED CUSTODIAL STATEMENT BY DEFENDANT SHOWS THE INTERROGATING OFFICER ADMITTEDLY FAILED TO CEASE THE QUESTIONING DESPITE NUMEROUS STATEMENTS BY DEFENDANT THAT HE WANTED TO STOP ANSWERING QUESTIONS, IT WAS PLAIN ERROR FOR THE COURT TO ADMIT THOSE PORTIONS OF THE STATEMENT WHICH WERE SUBSEQUENT TO THE INITIAL ASSERTION OF THE RIGHT TO SILENCE, AS THE PROSECUTION USED THOSE LATER PORTIONS OF THE STATEMENT TO ARGUE THAT THE SHOOTING WAS PREMEDITATED; OR, IN THE ALTERNATIVE, DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHERE HIS TRIAL ATTORNEY FAILED TO MOVE THE SUPPRESS THOSE PORTIONS OF THE STATEMENT DESPITE THE CLEAR CONSTITUTIONAL ERROR AND COUNSEL’S RECOGNITION OF THE OFFICER’S REFUSAL TO HALT THE INTERROGATION.
BB 242884: THE TRIAL JUDGE REVERSIBLY ERRED IN OVERRULING REPEATED DEFENSE OBJECTIONS TO EVIDENCE OF ALLEGED PHONE CALLS DEFENDANT MADE FROM THE JAIL BRAGGING ABOUT STARTING FIGHTS AND BEATING PEOPLE UP IN THE JAIL, AS THAT EVIDENCE WAS IRRELEVANT TO ANY ISSUE IN THIS CASE, UNRELATED TO THE CHARGES AGAINST DEFENDANT, AND HIGHLY PREJUDICIAL AS EVIDENCE OF UNRELATED AND UNCHARGED CRIMINAL CONDUCT.
BB 243021: APPELLANT’S DEFENSE WAS THAT HE WAS NEITHER PRESENT NOR INVOLVED IN THE SHOOTING AND HAD BEEN MISIDENTIFIED DUE TO HIS RESEMBLANCE TO ANOTHER PERSON WHO ADMITTED TO POLICE HIS PRESENCE AT THE SCENE. THIS SAME PERSON ALSO ADMITTED TO ANOTHER PERSON THAT HE WAS THE SHOOTER. DEFENSE COUNSEL’S FAILURE TO INVESTIGATE THE CONFESSED SHOOTER, FAILURE TO CONSULT AN EXPERT IN EYEWITNESS IDENTIFICATION AND OTHER FAILURES RELATED TO EXPOSING THE MISIDENTIFICATION OF HIS CLIENT VIOLATED DEFENDANT’S CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
BB 243021: DEFENDANT’S SENTENCE OF LIFE WITH THE POSSIBILITY OF PAROLE IS INVALID; THE JUVENILE LIFER STATUTE REQUIRES A SENTENCE OF A TERM OF YEARS OR LIFE WITHOUT THE POSSIBILITY OF PAROLE. BECAUSE THE TRIAL JUDGE REFUSED TO SENTENCE DEFENDANT TO LIFE WITHOUT THE POSSIBILITY OF PAROLE, THE JUVENILE LIFER STATUTE REQUIRES THAT DEFENDANT BE RESENTENCED TO A TERM OF YEARS.
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