Cases for Argument – October 2023

From the September, 2023 Criminal Defense Newsletter
The following criminal cases are scheduled for argument before the Michigan Supreme Court on October 4 & 5, 2023:

Calendar cases

People v Daniel Abert Loew, MSC No. 164133 (COA No. 352056)

Issue: Ex parte communication

The Court directed the parties to address: “(1) whether the Court of Appeals correctly concluded that the ex parte communications in this case did not violate Canon 3(A)(4)(a)(i) of the Code of Judicial Conduct because they were merely administrative in nature; (2) whether a trial court may properly grant a new trial in a criminal case based on an appearance of impropriety where Canon 3(A)(4) governs the conduct at issue, see In re Haley, 476 Mich 180, 194-195 (2006); (3) if the ex parte communications here give rise to legal error for either a violation of Canon 3(A)(4)(a) or an appearance of impropriety, whether the standard for ascertaining reversible prejudice requires a showing of actual harm to the defense, or is instead determined by weighing other factors as well, see, e.g., Liljeberg v Health Servs Acquisition Corp, 486 US 847 (1988); and (4) whether the defendant is entitled to a new trial under MCR 2.003 or constitutional guarantees of due process of law.” The case is set for argument Thursday, October 5, 2023, at 9:30am. 

Oral argument on applications

People v Matthew Scott Duff, MSC No. 163961 (COA No. 354406)

Issue: Custody/partially blocked vehicle/People v Anthony (2019)

The Court directed the parties to address: “(1) whether the totality of the circumstances surrounding the officers’ conduct of partially obstructing the defendant’s ability to move his vehicle would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter, see People v Lucynski, ___ Mich ___ (Docket No. 162833, decided July 26, 2022); and (2) whether People v Anthony, 327 Mich App 24, 40 (2019), correctly held that ‘only if officers completely block a person’s parked vehicle with a police vehicle is the person seized.’” The case is set for argument Wednesday, October 4, 2023, at 9:30am at the State Capitol in the old Supreme Court courtroom. 

People v Kevin Lionel Thompson Jr, MSC No. 163224 (COA No. 344834)

Issue: Ineffective assistance of counsel/polygraph

The Court directed the parties to address: “(1) whether trial counsel’s performance was objectively unreasonable with respect to the appellant’s polygraph examination and/or post-polygraph questioning, including the failure to establish the terms of the polygraph agreement in writing, to enforce the terms of the alleged agreement, and to testify regarding the terms of the agreement; and (2) whether the appellant was prejudiced or if he voluntarily waived his right to counsel with respect to the polygraph examination and/or post-polygraph questioning.” The case is set for argument Wednesday, October 4, 2023, at 12:10pm. Mr. Thompson is represented by SADO’s Jacqueline McCann.

People v Damon Earl Warner, MSC No. 163805 (COA No. 351791)

Issue: Amend information to add charges dismissed by order of nolle pros/false confessions expert

The Court directed the parties to address: “(1) whether, under MCL 767.29 and MCR 6.112(H), a trial court may amend an information, over objection, to include a charge that was dismissed pursuant to an order of nolle prosequi, without beginning the proceedings anew, ‘unless the proposed amendment would unfairly surprise or prejudice the defendant,’ MCR 6.112(H); (2) if so, whether the Eaton Circuit Court erred by doing so in this case and whether any error was harmless; and (3) whether the trial court abused its discretion by denying the defendant’s motion to appoint an expert in false confessions.” The case is set for argument Thursday, October 5, 2023, at 10:10am. Mr. Warner is represented by SADO’s Steven Helton. 

People v Milton Lee Lemons, MSC No. 163939 (COA No. 348277)

Issue: Biomechanical engineering evidence

The Court directed the parties to address whether the Court of Appeals erred in holding that: “1) the Wayne Circuit Court did not abuse its discretion by concluding that the biomechanical engineering evidence and testimony was inadmissible, or by excluding alternate causation theories that purportedly lacked scientific or factual support; (2) the Wayne Circuit Court correctly denied the defendant relief despite its erroneous decision to exclude the defense experts’ opinions regarding the validity of SBS diagnoses, reliance on the triad as a diagnostic tool, and the possibility of choking as an alternative cause of death; or (3) the new evidence presented by the defendant was insufficient to create a reasonable probability of a different outcome on retrial and warrant relief under People v Cress, 468 Mich 678, 692 (2003).” The case is set for argument Thursday, October 5, 2023, at 1:25pm. 

Case summaries and case briefs are available on the Michigan Courts website, as is a link to watch live-streamed arguments.

John Zevalking
Associate Editor