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CSC Jury Instruction Appeal

Michigan appellate courts continue to ignore the need to protect the rights of the accused and prevent false convictions of the innocent in sex crimes cases. In April, a three-judge panel of the Michigan Court of Appeals said “plainly erroneous” jury instructions were insufficient to overturn the conviction of Jeffrey Eisen on multiple counts of criminal sexual conduct. This follows a Michigan Supreme Court decision last July declaring that a “constitutional error” in misinforming a jury was not grounds to reverse a sex crimes conviction.

Eisen was tried and convicted by a jury in Ottawa Circuit Court on three counts of criminal sexual conduct in the first degree (MCL 750.250b), and one count of criminal sexual conduct in the third degree (MCL 750.250d). Of importance here, the first-degree counts required the prosecution to prove the victim was “under 13 years of age” at the time of the alleged incidents (MCL 750.250b(1)(a)). When the trial judge issued his oral instructions to the jury, he failed to inform the jury of this requirement, although the written verdict form subsequently given to the jury did. Unortunately, Eisen’s trial attorney did not object to the erroneous oral jury instruction.

On appeal, Eisen raised a number of issues, most of which the Court of Appeals found meritless. The panel did, however, take the bad jury instruction seriously. “We first conclude that the jury instructions were indeed plainly erroneous,” Judge Amy Ronayne Krause wrote for herself and Judges Jane M. Beckering and Donald S. Owens. “We agree that defendant’s trial counsel should have objected to the jury instructions and that this conduct fell below an objective standard of reasonableness.” In other words, the court of appeals found the instruction was error, and that the defendant received ineffective assistance of counsel when his lawyer failed to object.

That said, the fact that the verdict form contained all of the required elements effectively rendered the botched oral instructions “harmless error,” because the defendant did not suffer any prejudice. “The verdict form is treated as, essentially, part of the package of jury instructions,” Judge Krause said. “While the trial court committed error, the prejudicial effect of that error was significantly reduced by the presence of the proper elements on the verdict form.” She added that given that the “evidence was overwhelming that the victim was younger than 13,” and the fact the jury acquitted Eisen on one count where the victim couldn’t recall if she was 13 or 14 at the time, “the jury’s instructions, while imperfect, did in the end sufficiently protect defendant’s rights.”

The Court of Appeals opinion relied, in part, on last year’s Michigan Supreme Court decision in People v. Kowalski. In that case, the trial court failed to instruct the jury to determine whether the defendant, who was accused of soliciting a police officer posing as an underage girl on the Internet, had the specific criminal intent to violate the law. The Supreme Court said that while the trial court made an obvious error that affected the defendant’s constitutional right to a fair trial, his trial lawyer’s failure to object to the bad instructions at the time effectively waived any appeal on the issue – again placing technical procedure over the basic constitutional rights of the accused.

In Eisen’s case, the Court of Appeals similarly placed determinative weight on the failure of his constitutionally ineffective trial attorney to object to an obviously erroneous instruction. Judge Krause said the panel only reviewed the trial court’s error here because it was “necessary to resolve defendant’s claim of ineffective assistance of counsel,” which the Court of Appeals also “resolved” against Eisen. Judge Krause noted, the “effective assistance of counsel is presumed” and that even when an attorney’s conduct falls short of “objective standards of reasonableness,” as happened here, the burden is still on the defendant to show his lawyer’s actions decisively affected the outcome of the trial.

That’s why if you find yourself facing decades in prison like Jeffrey Eisen — who received 17.5 to 45 year sentences for each first-degree sexual assault conviction — it is imperative to have the most experienced and qualified criminal defense lawyers who avoid committing “constitutional errors” in the first place. For two decades, Mark Satawa has specialized in representing individuals accused of sex crimes. If you or a family member find yourself facing criminal charges, we strongly encourage you to contact us immediately.

Mark A. Satawa practices in the area of criminal defense, specializing in sex crimes. He is a member of the board of directors of the National Association of Criminal Defense Lawyers ( and the Criminal Defense Attorneys of Michigan (, and is a frequent continuing legal education speaker on sex offenses, most recently at the Institute for Continuing Legal Education seminar on Proven Defense Strategies for Challenging Criminal Sexual Conduct Cases.

Mark Satawa

Mark Satawa is a criminal defense attorney specialized in forensic DNA,
sex crimes, child abuse, shaken baby, medical child abuse, white collar,
and federal crimes.