September 2020

Subscribers to the Criminal Defense Resource Center’s online resources, found at, 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 321113: The trial court erred by denying defendant’s motion to dismiss under the double jeopardy clauses of the state and federal constitutions after it declared a mistrial over defendant’s objection when there was no manifest necessity for doing so. Thus, retrial is barred.

BB 321117: Offense variable (OV) 13 was erroneously scored, resulting in defendant being sentenced based on an inappropriately inflated sentencing guidelines range, in violation of his statutory and constitutional rights to be sentenced based on accurate information. Additionally, defense counsel rendered ineffective assistance of counsel in failing to object to the scoring of OV 13.  Defendant is entitled to resentencing.

BB 321118: Trial counsel was ineffective for failing to file a motion to suppress the contents of defendant’s cell phone because the search warrant authorizing the search failed to establish a nexus between her phone and the alleged criminal activity.

BB 321119: Defendant was denied his right to effective assistance of counsel and to a properly instructed jury where his trial attorney failed to request the model jury instruction on identification when the sole issue at trial was identity.

BB 321120: Defendant was denied his federal and state constitutional rights to due process when the trial court empaneled an anonymous jury, referring to the members only by number.

BB 321121: In this homicide case, defendant was denied a fair trial by irrelevant other-acts evidence showing he allegedly sexually assaulted his daughter, thus encouraging the jury to convict him for reasons of bias, sympathy, anger, or shock.

BB 321123: Defendant was denied his right to a fundamentally fair trial where the trial court permitted the police witnesses to seamlessly transition between providing fact and expert testimony when they had not been qualified as experts, and where it allowed them to offer irrelevant testimony about their training and experience, and to provide lay opinions that invaded the province of the jury. This testimony was not helpful to the jury but undermined the defense strategy and unfairly bolstered the officers’ credibility.

BB 321125: The informant’s out of court statement identifying defendant as the perpetrator was erroneously admitted in violation of MRE 802, MRE 403, and defendant’s Sixth Amendment right to confront the witnesses against him. Alternatively, defendant’s trial defense counsel was ineffective for failing to object based on MRE 403 and the Sixth Amendment’s Confrontation Clause.

BB 321126: Defendant was denied his confrontation rights when the trial court allowed the prosecution to call a DNA expert to testify at trial by video over objection. The prosecutor cannot show that this preserved constitutional error was harmless beyond a reasonable doubt.

BB 321127: The trial court abused its discretion in denying defendant’s motion for plea withdrawal where his attorney was ineffective in failing to provide him with vital discovery documents, review such documents with him, visit him more than one time at the jail, and accurately advise him about what kind of sentence he might receive if he pled guilty.

BB 321128: Defendant was deprived of his state and federal rights to due process and a fair trial where the prosecution suppressed critical evidence that could have been used to contradict and impeach the complainant’s testimony and put him on notice of other relevant witnesses he could have called to support his defense. The trial court therefore erred when it denied his motions for mistrial and a new trial.

by John Zevalking
Associate Editor