Michigan State Appellate Defender Office and Criminal Defense Resource Center

SADO attorneys have recently obtained relief for their clients in the Michigan Supreme Court on issues including deadlocked-jury instructions, credibility vouching, and expert testimony on sexual abuse. Congratulations to Adrienne Young, Katherine Marcuz, and Doug Baker and best wishes to their clients in these cases.

Adrienne Young: People v Harold Lamont Walker (MSC No. 155198) (decided July 11, 2019). When the jury advised the trial court that it was hung on a verdict in the defendant’s felon-in-possession/felony-firearm trial, the trial court gave the jury an ad-lib instruction, including an admonishment to the jury that “that’s not how it works.” The jury returned a guilty verdict, and the defendant appealed in the Court of Appeals arguing that the trial court’s instruction to the hung jury was improper and coercive. The Court of Appeals affirmed, but the Supreme Court reversed, finding that the trial court erred when it gave an ad-lib deadlocked-jury instruction that lacked constructive advice to encourage further deliberation, omitted important safeguards of jurors’ honest convictions, included coercive language, and was delivered in a coercive atmosphere. The Supreme Court remanded to the trial court for a new trial and, in light of the trial court’s conduct during sentencing, ordered the case to be retried before a different judge.  

Katherine Marcuz: People v Joshua Lee Thorpe (MSC No. 156777) (consolidated with MSC No. 157404) (decided July 11, 2019). At the defendant’s trial for second-degree criminal sexual conduct, a prosecution expert testified children only lie about sexual abuse 2% to 4% of the time, and the expert identified only two specific scenarios in his experience when children might lie about sexual abuse, neither of which applied to the facts of the case. Based on the expert’s testimony, one could reasonably conclude that there was 0% chance that the complainant was lying. The expert’s testimony amounted to improper vouching and, because the case was a true credibility contest, it was more probable than not that the improper vouching affected the jury’s decision and that a different outcome would have resulted without the improper vouching. The Supreme Court reversed and remanded for a new trial.  

Doug Baker: People v Brandon James Harbison (MSC No. 157404) (consolidated with MSC No. 156777) (decided July 11, 2019). At defendant’s trial on various criminal sexual conduct charges, a doctor offered the jury her opinion that the complainant suffered from “probable pediatric abuse.” The doctor acknowledged that her examination of the complainant revealed no physical evidence of an assault, but she based her diagnosis on her opinion that the complainant’s account of the assaults was “clear, consistent, detailed and descriptive.” The Supreme Court held that the doctor’s testimony clearly fell within the holding of People v Smith, 425 Mich 98 (1986), that an examining physician cannot give an opinion on whether a complainant had been sexually assaulted if the “conclusion [is] nothing more than the doctor’s opinion that the victim had told the truth.” The doctor’s testimony was contrary to Smith and amounted to improper bolstering for the complainant’s credibility. The doctor’s improper bolstering affected the fairness and integrity of the proceedings. The Supreme Court vacated the defendant’s conviction and remanded for a new trial. 

Subscriber Comments

• You must be a subscriber to view comments