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Written by Bill Branham
August 6, 2013, Oral Arguments were given in Davontae’s appeal.
Kim McGinnis
Attorney
Kim McGinnis, who used to work for the Michigan State Appellate
Defenders Office (SADO), has since moved out of state, but continues to
represent Davontae in his and his family’s struggle to gain his freedom.
There were many supporters and family present. Dave Leval of Detroit
TV-20, but no cameras, and some reporters from the Detroit News wrote
Attorneys: Developmentally disabled man not Detroit murderer. I was unaware of any other press.
Here are some of the points I was able to capture:
1. One judge asked Kim McGinnis, in her opinion,
“Did the original trial judge, Sullivan, abuse his discretion?”
McGinnis gave a clear and definite “Yes!”, referring to his decision to
allow Davontae’s “confession” to be admitted as evidence, and perhaps
on some other points.
To be better informed on the issue of presenting recorded confessions
when later the suspect recants, read our presentation of the
Davontae’s case and watch
Davontae’s “confession”. Then read the article on
Michigan’s new video recording law
adopted at the beginning of this year, found on the front page of our
site. That law specifically addresses exactly what happened with
Davontae: the issue of only recording the “confession” and not any of
the dynamics leading up to it. Had the law been in place, it would have
directly affected Davontae’s trial. It is difficult to understand how a
mentally-challenged 14 year old could spend that much time with the
police, never having a lawyer present or even any member of his family,
because they were never informed that he was a suspect, and then have
this “confession” admitted. (And just how do they try a 14 year old as
an adult?) In many states, their similar but stricter video recording
lawthan the one we have now would have taken the discretion away from
the judge and simply not allow such a “confession” to be heard, or at
least mandate certain procedural responses. What was surprising to me
was that the three member panel was unanimous in their opinion that
Judge Sullivan handled this well, considering the evidence at hand.
2. The only real evidence in this trial is Davontae’s “confession” and
the testimony of a woman who was hidden in the back room who
heard
a voice which she thought sounded young. She never saw the gunman
because she was hiding. In over 70% of the first 200 DNA cases,
eye-witness misidentification was a major part of the evidence. Hmm . . .
I wonder what that statistic would be if it involved
ear-witness identification???
The “confession” is central. McGinnis says that expert testimony in
false confessions
(now a well established area of academic study. Click the link to see
our explanation of this cause of wrongful convictions) should have been
allowed. All the judges, including Sullivan, make statements that they
understand false confessions, but it is very difficult to believe that
their understanding is anything but superficial. Without being too
critical, because this could be said of any profession, what
professional career person would want to come across as if he/she did
not have a thorough understanding of an issue in their own area of
expertise?!
There is one other very important point. I only heard the judges refer
to whether or not Davontae’s confession was coerced, so as to render it
“involuntary”. I've never heard anyone state that Davontae's confession
was anything but voluntary. So why should his confession not have been
allowed? The question is not, as the judges expressed, “Was it
voluntary?”, but “Is it reliable?” The details are too much to go into
here, but in an article in the Spring 2012 publication of the
Northwestern Journal of Law & Social Policy,
found in the attachment below, Andrew Taslitz makes a strong argument,
citing many cases, including Supreme Court decisions, that the question
of voluntariness is subordinate to the question of reliability. That
question was totally overlooked, instead only focusing on whether the
State may have been coercive. I heard the detective make statements
about how much better this is for him to admit this, how he knows his
parents want him to tell the truth, and that he would feel better about
himself in the long run for confessing this. What is a naive', polite
young boy to do? Coerced? No. Manipulated into saying something that
wasn't true? Absolutely! Is it reliable? No! Should it be admitted into
court as evidence? Only if you want to convict an innocent person.
A First-Timer's Observations This
was my first time attending a Court of Appeals (COA) hearing where the
attorneys for the parties presented oral arguments, or as they say,
"Oral Argument". So I will share the impressions of a first timer, which
the non-lawyer reader may find helpful in understanding the process.
The type of trial most people envision is a “trial by jury”. The judge’s
role is to make sure the proper procedures are followed. He or she
listens intently looking for procedural mistakes. The testimony is
primarily presented to the jury, who never speak during the trial
itself, and the judge never reveals his or her views so as to influence
the jury.
There could not be more of a contrast with the goings-on at a COA Oral
Argument hearing. There is no jury; only a three-judge panel. The judges
have read the briefs and have specific questions they wish to ask,
sometimes even pre-empting the lawyer’s opening statement. Knowing the
judges already have the facts, the lawyer for each side has two
purposes: 1) to give the highlights and emphasize what he or she
believes are the most important points in a short period of time. (They
scheduled 7 hearings in one hour and failed miserably to stay within the
time frame.), and 2) to answer questions the judges ask.
The procedure is that the Appellant lawyer, whose side made the appeal
representing Davontae, goes first. This is followed by the side which
won the case originally in the lower court, the Appellee, representing
the State. The third and final part is a short rebuttal of the
Appellant. There may be other procedural rules, but they were not
apparent to me. The hearing comes off as more of a casual, intellectual
conversation between 5 people, though the Appelant and the Appellee
never speak at the same time. What is left is the obvious strategy of
being flexible and handling any questions the judges have in an
authoritative and respectful manner. Occasional humorous comments are
made by the judges, and, of course, when the judge cracks a joke, everyone, on both sides I might add, laugh!
What was clear was that the three judges had carefully read the briefs
from both sides. They were very engaged, sometimes sharing why they were
leaning in a certain direction on a particular issue, giving the
attorneys on both sides an opportunity to respond to what the judges are
actually thinking.
3.
Smother’s Confession:
Central to the defense’s strategy is that they want the testimony of
the real killer to influence Davontae’s retrial. I think that the
response of the county assistant prosecutor, Thomas Chambers, was very
telling. It was purely a technical response, that the trial judge should
not have to listen to perjured testimony. (I was unclear as to whether
they were referring to Davontae changing his testimony or if they were
referring to Smothers.) He responded with a technicality, not
considering at all that if it were true, wouldnt that be more important?
I have been shocked in recent years to hear prosecutors articulate
reasons why they can win a case, brazenly not even giving lip service to
the more fundamental question of justice. What I have heard from “the
good guys”, shakes me to my core. In regard to recanted confessions,
with little consideration of the larger context, the courts and
prosecutors in this country
ipso facto
proclaim the original testimony to be the true testimony and any changes
later to be fabrications. There are no exceptions! But I think life
teaches us the opposite, that time and distance away from the original
crisis gives people more clarity. I think the question, both ethically
and legally, should not be “Should the judge listen to perjured
testimony?” but “Is it reliable? Is it true?”. No such thought was ever
uttered by the prosecutor.
4. Kim McGinnis made the point that
there
is no comparison between the 18 video recorded hours of Smothers, the
real murderer, with the 12 ½ minute clip of the police’s final product,
Davontae’s “confession”. McGinnis pointed out that
almost all of Smother’s details were not known by the police at the time
and have since been corroborated. Davontae’s testimony had many factual
inaccuracies. If those inaccuracies were taken out of his confession,
that would leave only facts that the police already knew. Hmm . . . .
Some of these details in Davontae’s testimony, the ones which “only the
real killer would have known”, are ludicrous. Example: how did Davontae
know there was a red car outside the Runyon Street house? He saw it for
himself when the police took him back to the scene of the crime!
I was able to have a brief exchange with the prosecutor going down the
elevator and out the building. I asked, “Why do you not entertain the
possibility that the detectives spoon-fed Davontae those details?” His
response was that, “if they did that, they would lose their jobs.”
Eventually I respectfully responded, “Well, perhaps they didn’t do it on
purpose. Maybe . . . they were just sloppy.”, to which he only shook
his head. Anyone who has browsed the literature on false confessions
knows that this is common place when an actually innocent person,
usually a youth or a mentally challenged adult, is convicted on a
confession which simply isn't true. The detectives slowly guide their
unknowing victim down the path of self incrimination, even the innocent!
Everyone should know that it is universally accepted and legal for an
interrogator to lie and mislead a suspect in order to elicit the
response they want. But the prosecutor and the judges don’t seem to
consider even the possibility that Davontae received much of his
information from his interrogators. No doubt, a product of group think!
I know of another case in which the defense lawyer took the verbatim
transcript of the interrogation, and was able to show in court that
every time the suspect mentioned a detail of the crime, the police had
previously mentioned that detail in their questioning. It was right
there in print. Yet, on the witness stand, the detective still denied
giving leading questions to the suspect! And the suspect was convicted!
Unfortunately, judges often display a complete unawareness of what
really goes on in interrogations.
5. Things did not seem like they were going well, but then there were signs of hope.
At
least two of the three judges made comments that it bothers them that
there is the possibility that an innocent person was convicted and sent
to jail for most of his life. They expressed a
preference that Judge Sullivan be given the benefit of hearing Smother’s
side of the story, knowing full well that Sullivan could chose to not
believe Smothers.
6.
The judges said it was
“peculiar” that in Davontae’s “confession,” he implicates several of his
friends as accomplices, and yet none of them were ever even called in
for questioning. The reason is clear. The only thing the
police had on Davontae was his orchestrated “confession,” which was the
basis of his conviction. But the content of that confession is so weak
that, without confessions from the other boys, it couldn’t convict them,
so they didn’t even bother to go through the motions. Assistant
Prosecutor, Thomas Chambers, made some joke, which I couldn't quite
catch, that he was not privvy to those decisions. It's pretty hard to
believe that one who was adequately prepared to argue against Davontae,
didn't know the answer to that question. The problem for him was that he
did know the answer to that question, but it would hardly have
furthered his case.
I was somewhat pleased to witness a professionalism on the part of the
judges at least three levels above that which I have witnessed in
Michigan parole hearings. Kim McGinnis did a fine job of arguing the
facts and this “new evidence” of Smother’s confession. Let’s hope that
the judges' biggest concern is the possibility of convicting an innocent
person and that this will outweigh all other issues.
No one quotes Blackstone any more: "It is better that ten guilty persons escape than that one innocent suffer."
We will inform you as soon as we learn of the Court of Appeals' decision.
http://www.provinginnocence.org/142-hold-cases/606-presenting-oral-argument-in-davontae-s-appeal.html
yourself
how our criminal justice system works. In Davontae's case, until now,
it has been a dismal failure. It is important that the court understand
how many people are taking notice of this case because of the incredible
injustice being done to this young man. 