(Source: MIRS.news, Published 12/08/22) Michigan Supreme Court Justice Bridget McCormack dropped a plug for incoming justice Rep. Kyra Bolden (D-Southfield) during oral arguments on a case challenging whether new evidence that resulted in an acquittal led to a reversal or vacation of the defendant's criminal charges.
McCormack, whose last case call was Thursday, said the Legislature should have been more specific regarding whether a former inmate, whose conviction was overturned due to prosecutorial misconduct or ineffective assistance of counsel, can qualify for compensation.
"I wish we had a legislator on the court to help us sort this out," McCormack said when talking to one of the attorneys.
She won't be waiting long.
In January, that will happen when Bolden, who was appointed by Gov. Gretchen Whitmer after losing the November general election, joins the bench. She will be the only justice with legislative experience.
McCormack's comment came as the high court heard oral arguments in Charles Dale Perry Jr.'s appeal of the Michigan Court of Appeals decision that dismissed his 2018 lawsuit seeking compensation under the Wrongful Imprisonment Compensation Act (WICA).
Perry was convicted and sentenced in 1990 to serve six concurrent terms of 20- to 40-years in prison on four counts of first-degree criminal sexual conduct (CSC) and one count of second-degree CSC.
Perry appealed, arguing he was entitled to a new trial based on prosecutorial misconduct and ineffective assistance of counsel. In 1994, the state appeals court agreed and granted him a new trial.
At the new trial, Perry's attorney called 10 to 12 witnesses who were not called during the first trial – a point the prosecutor argued showed guilt. Those witnesses, however, showed at the second trial that Perry did not commit the crimes charged and a jury acquitted him.
In 2018, Perry sued the state seeking compensation for the time he was imprisoned, arguing the new evidence from witnesses essentially exonerated him, and the trial court denied the state's request to dismiss the suit.
In a June 2021 unpublished opinion, the appeals court reversed that ruling.
Perry's attorney, Michael Cafferty, told the justices the question before them is whether the new evidence was relevant to the legal basis for granting the new trial.
Justice Brian Zahra questioned whether it was new or old evidence, and Cafferty responded: "It's clearly new evidence . . . under the definition of WICA."
Cafferty added, "We're talking about an innocent guy who spent five calendar years in prison for a crime he didn't commit."
Deputy Solicitor General B. Eric Restuccia said the state is trying to apply the statute as the Legislature intended and he welcomed any correction the court would give. He said, however, the Legislature created the parameters and the Attorney General's office can't just grant relief to anyone it believes it is innocent.
Restuccia argued that the appeals court granted Perry relief based on prosecutorial misconduct and ineffective assistance of counsel related to that – not on the witnesses. As such, Perry's claim doesn't meet the WICA requirements.
