Presenting Oral Argument in Davontae's Appeal

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