Please tell us something about your background, and your time with the State Appellate Defender Office.

I grew up in a small town near Ithaca, NY.   I eventually made my way to the big city to join the founding class of the CUNY Law School at Queens College.  There I met my wife, Kary Moss, who’s now the Executive Director of the ACLU of Michigan.

My first job after law school was in the Queens office of the Legal Aid Society’s Criminal Defense Division where I trained as a trial lawyer.  I next trained as an appellate lawyer with the Office of the Appellate Defender in Manhattan.  After I taught legal writing and research at Hofstra Law School for a year, Kary and I and our young daughter Jessa moved to Santa Fe, New Mexico, where I worked for the Appellate Division of the New Mexico Public Defender Department.  Our stay in New Mexico was cut short when Kary, who’d grown up in Southfield, was offered a job as ED of the Sugar Law Center in Detroit.  We moved to Ann Arbor, where for a time I had a private practice devoted to criminal appeals.  At first, I handled a combination of long-distance NMPD contract appeals, MAACS appeals, and a few retained cases.  I also did some contract work for SADO, and when an opening arose in 1997, I applied and was hired.  I’ve been a staff attorney here ever since.

You recently obtained the release from prison of a client convicted in the Wayne County Circuit Court of assault with intent to murder.  Please tell us about the case, including what was involved in arguing the motion and what technological evidence was presented.

I talk about the case in great detail in the lead article of this newsletter, “How Metadata from Facebook, Cell Phone Photos, and Cell Towers led to the Exoneration of Derrick Bunkley.” I encourage attorneys to read the article and to begin thinking of the ways in which technology can help further an investigation. In Derrick’s case, a thorough technological investigation that took place for the first time on appeal, proved that he could not have been the perpetrator. The prosecution agreed and stipulated to dismissal of the charges.

What trends have you noticed in Michigan law over the years?

One that stands out is our appellate courts’ increasing tolerance for trial mistakes.  When I first started at SADO, more seasoned lawyers here were already complaining about how, over time, it had gotten harder and harder to win an appeal.  Then came People v. Lukity [460 Mich. 484 (1999)].  Putting the burden on the defense to prove that an error probably changed the trial’s outcome means that some mistakes will almost never lead to reversal (for example, jury-selection errors) and others will only rarely do so.  And when no consequence is attached to trial errors, they get repeated.

An example: I was recently assigned a case in which an examining physician opined that the complainant had suffered “probable pediatric sexual abuse” even though the medical examination yielded no physical evidence to support that conclusion.  I recalled another such case. Five years before, I’d argued that the same opinion from the same doctor was inadmissible.  The Court of Appeals had agreed—the doctor’s opinion was outside her realm of expertise, and so improperly bolstered the complainant’s credibility—but determined that the error was harmless because the same consideration that influenced the doctor (the consistency of the complainant’s story) also supported the jury’s verdict.  Well, this would be true whenever a doctor’s credibility opinion was supported by considerations also available to the jury—in other words, almost always.  The Court’s decision therefore seemed less a chastisement than an invitation to error.

Sure enough, some quick research showed that the phrase “probable pediatric sexual abuse” appears in four other Court of Appeals decisions.  Three involved the same doctor.  Three involved the same court.  Two involved the same judge.  Each time the Court condemned the remark but held it harmless.  And those are just the cases in which that exact phrase was used.  I wouldn’t be surprised if there were others in which similar formulations led to the same result.

A better trend is our Supreme Court’s recent willingness to give serious attention to ineffective-assistance claims.  In three decisions—Trakhtenberg [493 Mich. 38 (2012)], Douglas, [496 Mich. 557 (2014)] and Ackley [497 Mich. 381 (2015)]—the Court underscored the need for counsel to investigate and present expert testimony where needed and also to protect clients from bogus prosecution expert testimony.  While on its face this may not seem good news for trial lawyers, who understandably already feel beleaguered, I hope in the end it will not only raise the standard of practice but make it easier to procure funds for experts and investigators.

What advice do you have for criminal defense lawyers? Also, are there common mistakes by trial counsel that you see being repeated?

Following up on the last point: conduct a complete investigation and, where needed, consult experts.  Trakthenberg’s trial lawyer was ineffective because she decided upon a defense strategy without first conducting an investigation and consulting an expert.  Such an investigation would have uncovered invaluable evidence in support of the defense theory.

Also, consult the right kind of expert.  Trakhtenberg’s lawyer eventually did consult one kind of expert, but not the kind that could have helped the jury to evaluate the additional evidence.  Ackley’s lawyer consulted an expert sympathetic to the prosecution’s point of view, but not one who could provide support for the defense theory.

Derrick Bunkley’s case is another example of the need to consult with experts.  Trial counsel understood that Derrick’s Facebook posts might be important to establishing his alibi defense.  However, because he didn’t know much about technology he didn’t appreciate the significance of the fact that Derrick used a smartphone to take and post the pictures.  Had he just asked someone with a bit of technical knowledge, he would have immediately understood the need for an expert’s help.

Derrick’s case also illustrates the need for systemic reform when it comes to eyewitness identifications.  Indeed, this is my biggest takeaway from the case.  We now know that the complainant misidentified Derrick.  She was 100% certain, and 100% wrong.

Please read Judge Shapiro’s dissenting opinion in People v. Blevins, __ Mich. App. __ (No. 315774)(2/11/2016), which lays out the problem.  As noted, studies show the error rate for eyewitness identifications is alarmingly high: somewhere between a third and a half of the time.  The error rate for identifications made after “high stress” encounters is even higher: over 60%!  Moreover, memory decays quickly, and gaps in memory are filled in with plausible-seeming quasi-memories that further cloud the ability to make an accurate identification.

The Blevins dissent suggests a couple of things we can do to counter the problem.  First, we can try to present expert testimony.  Second, we can seek better jury instructions.  Expert testimony is needed to explain to lay witnesses that what seems like common sense really isn’t.  And jury instructions
 (like the ones we use currently) shouldn’t suggest that identifications made with more certainty are more reliable (they aren’t) or give the prosecution room to argue that high-stress identifications are more reliable (the opposite is true).

Yes, I know that judges don’t want to allow ID experts and certainly don’t want to provide funds for them.  And they won’t easily give special instructions. But in cases that hinge on eyewitness testimony, we must nevertheless ask: the Blevins dissent says we’re ineffective if we don’t.  Wouldn’t we rather the bad guy on appeal be the judge?

Do you have any specific advice for new attorneys?

It’s harder to get a career started than it used to be.  My advice? Get your foot in the door.  If you can figure out a way to prove you can do the work, your odds of getting hired improve dramatically.  Contract work like I did at SADO can be a possibility.  With defender jobs, sometimes there are short-term grant-funded projects that can give a young lawyer a leg up when a full-time position opens.  If you can afford to do it, volunteer to work on a case that interests you.  A young lawyer did that not long ago where my wife works, and ended up on staff.  Getting to know the people you’d like to work with is always a good strategy.

by Neil Leithauser
Associate Editor

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