August, 2018

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 are some of the issues presented in briefs added to our brief bank in the last few weeks. For confidentiality purposes, names of clients and witnesses have been removed.

BB 311834:  The trial court lacked the statutory authority to require defendant to pay a $60 DNA testing fee.

BB 311914:  The fine imposed at sentencing is invalid because it was imposed outside the plea agreement; defendant asks the court to correct the sentence by vacating the illegal portion, i.e., the fine.

BB 311928:  Defendant had a due process right to be sentenced by a judge free from even the appearance of bias. The sentencing judge was admittedly not an unbiased and impartial judge. Resentencing before a different judge is required.

BB 311928:  There is no authority under Michigan law for running the sentences in this case consecutive to those in the federal case. The judgment of sentence must be corrected to reflect concurrent sentencing between the Michigan and federal sentences and to add the additional credit for time served since the sentence was imposed in this case.

BB 312011:  The trial court erred in failing to suppress the evidence seized pursuant to overly broad search warrants that permitted the police to obtain all of the data on the phone, without limitation, and three months of data from the phone company simply based on an allegation that defendant shot the victim, in violation of defendant’s Fourth Amendment rights.

BB 312176:  Defendant was denied a fair trial where the jury was given two different instructions on how they could consider the evidence of defendant’s attempting to commit suicide following the shooting of his step-daughter, and one of those instructions erroneously informed the jury that they had heard evidence that defendant committed a crime for which he was not being charged, but was admissible to show his criminal intent; in the alternative, defendant was denied his Sixth Amendment right to the effective assistance of counsel where his trial attorney did not object to the erroneous instruction.

BB 312295:  The sentence agreement, as reasonably interpreted, was violated, and defendant should be granted a resentencing for specific performance of the agreement.

BB 312512:  Defendant was denied due process of law and his right of confrontation where an accomplice witness claimed the Fifth Amendment in front of the jury and the prosecutor let the jury know that the witness implicated defendant and pled guilty to second-degree murder in this case.

BB 312161:  The prosecution failed to brief any challenge to the grant of a new trial, waiving any argument that the grant was error. The Court of Appeals conflated the standards of review in its cursory reversal of the grant of a new trial “for the same reasons” as the reversal of the directed verdict of acquittal. Moreover, the grant was correct.

BB 312468:  Defendant is entitled to a new trial where the trial court denied his right to present a defense and/or trial counsel was ineffective in failing to produce a witness who would have testified to defendant’s innocence and where prejudice has been shown; the witness’s failure to appear at the post-conviction hearing is not attributable to the defense, and the Court of Appeals was correct in granting a new trial.

BB 312540:  Where a parent leaves a child in the care of the other custodial parent, with knowledge that the other parent previously injured the child and that serious physical harm or death would result to the child, but provided no other forms of assistance to the perpetrator of the crime, the parent cannot be guilty of aiding and abetting either child abuse in the first degree or second-degree murder.

by John Zevalking
Associate Editor