Michigan State Appellate Defender Office and Criminal Defense Resource Center

SADO’s Jessica Zimbelman, Jason Eggert, and Angeles Meneses will present arguments to the Michigan Supreme Court at its October 2020 session on issues including cell-phone data searches and search warrants (People v Kristopher Allen Hughes), application of the issue preclusion aspect of double jeopardy (People v Treshaun Lee Terrance), and whether the requirements of SORA are punishment (People v Paul J Betts, Jr).

Jessica Zimbelman will argue for the defendant in People v Paul J. Betts, Jr, Docket No. 148981, in which the Court directed the parties to address: (1) whether the requirements of the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., taken as a whole, amount to “punishment” for purposes of the Ex Post Facto Clauses of the Michigan and United States Constitutions, US Const, art I, § 10; Const 1963, art 1, § 10; see People v Earl, 495 Mich 33 (2014), see also Does #1-5 v Snyder, 834 F3d 696, 703-706 (CA 6, 2016), cert den sub nom Snyder v John Does #1-5, 138 S Ct 55 (Oct 2, 2017); (2) if SORA, as a whole, constitutes punishment, whether it became punitive only upon the enactment of a certain provision or group of provisions added after the initial version of SORA was enacted; (3) if SORA only became punitive after a particular enactment, whether a resulting ex post facto violation would be remedied by applying the version of SORA in effect before it transformed into a punishment or whether a different remedy applies, see Weaver v Graham, 450 US 24, 36 n 22 (1981) (“the proper relief . . . is to remand to permit the state court to apply, if possible, the law in place when his crime occurred.”); (4) if one or more discrete provisions of SORA, or groups of provisions, are found to be ex post facto punishments, whether the remaining provisions can be given effect retroactively without applying the ex post facto provisions, see MCL 8.5; (5) what consequences would arise if the remaining provisions could not be given retroactive effect; and (6) whether the answers to these questions require the reversal of the defendant’s conviction pursuant to MCL 28.729 for failure to register under SORA. This calendar case is set for argument at the morning session, October 7, 2020.

Jason Eggert will argue for the defendant in People v Kristopher Allen Hughes, Docket No. 158652, in which the Court directed the parties to address: (1) whether the probable cause underlying the search warrant issued during the prior criminal investigation authorized police to obtain all of the defendant’s cell phone data; (2) whether the defendant’s reasonable expectation of privacy in his cell phone data was extinguished when the police obtained the cell phone data in a prior criminal investigation; (3) if not, whether the search of the cell phone data in the instant case was within the scope of the probable cause underlying the search warrant issued during the prior criminal investigation; (4) if not, whether the search of the cell phone data in the instant case was lawful; and (5) whether trial counsel was ineffective for failing to challenge the search of the cell phone data in the instant case on Fourth Amendment grounds. The mini-oral argument on application case is set for argument at the morning session, October 7, 2020.

Angeles Meneses will argue for the defendant in People v Treshaun Lee Terrance, Docket No. 159516, in which the Court directed the parties to address whether the Court of Appeals erred when it concluded that the jury in the defendant’s first trial, when it acquitted him of first- and second-degree murder, necessarily decided an issue of ultimate fact such that the issue-preclusion aspect of the Double Jeopardy Clause bars prosecution for the crime of torture arising out of the same criminal incident. This mini-oral argument on application is set for argument at the morning session, October 8, 2020.

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