Open Season for Convictions based on Old, Unproved Allegations
Yet again, Michigan courts have abdicated their responsibility to ensure fair trials for defendants accused of criminal sexual conduct. This time, the Michigan Supreme Court threw out its own rule limiting the introduction of alleged prior bad acts to prove a defendant’s guilt. A four-justice majority said the rule conflicted with a statute adopted by the Michigan legislature that made such allegations admissible in child sex crime cases. Despite the longstanding constitutional principle that courts, not legislators, should decide procedural rules in criminal cases, the Supreme Court acquiesced to the legislature.
The Supreme Court’s action came in a criminal case with a long and sordid history. Lincoln Watkins was convicted by a jury inWayne Circuit Court of five counts of criminal sexual conduct against a minor. This was actually Watkins’s third jury trial after two prior mistrials. The second mistrial resulted from prosecutorial misconduct that even the Court of Appeals described as “grossly negligent, if not reckless,” yet insufficient to bar a third trial as a violation of Watkins’s constitutional protection against double jeopardy.
During the second trial, Judge Carole Youngblood reversed a decision from the first trial and excluded testimony from a witness who claimed Watkins had sexually abused her ten years earlier. Under Michigan Rule of Evidence 404(b), “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order show action in conformity therewith.” The prosecution appealed this ruling, and between the second and third trials, the Court of Appeals reversed Judge Youngblood, holding that MRE 404(b) conflicted with MCL 768.27a, a 2006 statute enacted by the Michigan legislature that provides “in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense is admissible and may be considered for its bearing on any matter to which it is relevant.”
The appeals court noted there was an irreconcilable conflict between MRE 404(b) and MCL 768.27a “and that the statute prevailed over the rule of evidence.” At Watkins’s third trial, the jury heard from the disputed witness, who testified about events that allegedly took place ten years earlier, and for which Watkins was not on trial. After Watkins’s conviction, a second panel of the Court of Appeals reaffirmed the earlier panel’s conclusion that the testimony was admissible, and although the trial court failed to follow the first panel’s instructions to determine whether certain parts of the witness’s testimony was irrelevant — which it was — the outcome of the trial was “not inconsistent with substantial justice.” The Supreme Court then agreed to hear Watkins’s appeal.
All seven justices of the Michigan Supreme Court agreed with the Court of Appeals that there was an irreconcilable conflict between MCL 768.27a and MRE 404(b). Where the justices divided is over which provision should control. The Michigan Constitution grants the judiciary, specifically the Supreme Court, exclusive power to “establish, modify, amend and simplify the practice and procedure in all courts of this state.” This means the legislature cannot pass laws that tell the courts how to conduct trials. In 1999, however, the Supreme Court held the legislature could create new rules of evidence that supersede the Court’s rules unless “no clear legislative policy reflecting considerations other than judicial dispatch of litigation can be identified.” Thus, the legislature could create substantive, but not procedural, rules of evidence.
Based on that 1999 decision, a majority of the Supreme Court in this Case decided the legislature’s rule in MCL 768.27a should override the Court’s MRE 404(b). Justice Brian K. Zahra, writing for the four-justice majority, said the legislature adopted MCL 768.27a to “address a substantive concern about the protection of children and the prosecution of persons who perpetrate certain enumerated crimes against children and are more likely than others to reoffend.” Since that “concern” goes above-and-beyond simply trying to get the courts to dispose of cases more quickly, the courts should yield to the legislature’s judgment, Justice Zahra said.
In dissent, Justice Marilyn Kelly and two of her colleagues took the opposite view. While agreeing with Justice Zahra and the majority that MCL 768.27a and MRE 404(b) are in conflict, Justice Kelly said she would find “MCL 768.27a is an unconstitutional intrusion” into the Supreme Court’s constitutional authority to determine the rules of practice for the state’s courts. She noted that three other state supreme courts — in New Hampshire, Washington and Tennessee — have invalidated legislative provisions similar to MCL 768.27a that attempted to override judicially crafted rules of evidence.
In New Hampshire, the state supreme court issued an advisory opinion that said legislative re-writing of its version of MRE 404(b) would “interfere with the judiciary’s sound discretion” in securing a defendant’s right to a fair trial:
Because the proposed bill directly conflicts with Rule 404(b), a rule concerning a uniquely judicial function, the separation of powers doctrine is violated. The legislature has no more right to break down the rules prescribed by this court to assure fundamental due process in criminal and civil trials than this court has to prescribe the mode and manner in which the legislature shall perform its legislative duties.
The dissenting justices also rejected the underlying 1999 precedent the majority relied upon, which holds the Michigan legislature may enact rules of evidence based on “policy considerations” beyond the “orderly dispatch of judicial business.” The notion that the legislature could write substantive, but not procedural, rules of evidence was “overly simplistic and underinclusive,” according to Justice Kelly. (Justice Kelly was also one of two justices to dissent from the 1999 decision.)
Ultimately, the majority affirmed Watkins’s conviction. The Supreme Court simultaneously disposed of a second case involving a pending criminal trial. Richard Pullen has been accused of second-degree criminal sexual conduct. The prosecution moved to admit evidence of a prior bad act allegedly committed in 1989. The trial judge granted Pullen’s motion to exclude this evidence as “unduly prejudicial” under MRE 403, which requires a “balancing test” before admitting evidence under MCL 768.27a. The trial court then stayed its proceedings while prosecutors appealed this decision.
The Court of Appeals affirmed the trial judge, but Justice Zahra’s majority said the trial court abused its discretion by failing to admit the prior acts evidence. Justice Zahra said the “probative value” of the earlier allegations outweighed any “prejudicial” effect it may have on the jury. Again, Justice Kelly dissented. Since she would find MCL 768.27a unconstitutional, the prior acts evidence would be inadmissible under MRE 404(b).
The Supreme Court’s latest decision means it is open season for prosecutors who want to convict defendants based on unproven allegations that may be years, or even decades, old. Ultimately it reemphasizes the importance of hiring experienced counsel who specialize in defending allegations of child sexual assault. If you or a loved one stands accused of sexual abuse, contact Satawa Law.