(Source: MIRS.news, Published 07/24/2023) A Michigan prisoner will get parole after the Michigan Supreme Court held Monday that the circuit and appeals courts substituted their judgment for that of the Parole Board's.
In a unanimous opinion from Justice Brian Zahra, the justices held the Michigan Court of Appeals majority "applied the wrong analysis and ignored the discretion that the Legislature has assigned to the Parole Board."
The justices held the appeals panel's ruling "effectively reweighed" evidence without "proper deference to the board."
"This contravened the scheme established by the Legislature," Zahra wrote. "Reviewing courts must recognize that, even if there are substantial and compelling reasons to deny parole, a grant of parole is not an automatic abuse of discretion."
Justice Kyra Bolden concurred, but wrote separately to "further tease out some of the facts" and history that made the case "such a difficult test for the courts." Included in her ruling was the challenge balancing the victim's safety and concern considering Robert Allen McBrayer's parole location is to an area in close proximity to the victim.
McBrayer pleaded guilty in 1994 to two counts of first-degree criminal sexual conduct and was sentenced to concurrent prison terms of 20- to 40-years. He became eligible for parole in January 2010, and the Parole Board granted him parole in 2011, 2015 and 2018, but the circuit court reversed the decisions on appeal.
In November 2020, the Parole Board granted McBrayer parole for the fourth time and the circuit court again reversed that decision, which a split panel of the Court of Appeals affirmed.
Justice David Viviano did not participate in the decision of the case because his sister, Judge Kathryn Viviano, was the presiding circuit court judge in the 2018 appeal.
