Opinion
SC: 163779 COA: 354415
06-10-2022
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jacob Langston-Porter LABELLE, Defendant-Appellant.
Order
On order of the Court, the stipulation signed by counsel for the parties agreeing to the dismissal of the interlocutory application for leave to appeal is considered, and the interlocutory application is DISMISSED with prejudice and without costs. The motion for immediate consideration is DENIED as moot.
Viviano, J. (concurring).
I concur with the Court's order denying leave because the present appeal of the trial court's denial of defendant's motion for release on bond is moot. I write separately because I believe this case vividly demonstrates how blind acceptance of confessions of error can undermine public confidence in the fairness of the criminal justice system.
I. FACTS AND PROCEDURAL HISTORY
On May 14, 2018, Michael Ritter was making his last delivery of the day to the Walgreens in Ann Arbor across the street from the University of Michigan campus. Because the store has no rear entrance or parking lot, deliveries must be made from the street near the front entrance to the store. On this occasion, Ritter's delivery truck was double-parked along the curb, blocking defendant's car. According to Ritter, defendant approached him, threatened that he had a firearm, and told Ritter to move his truck. A physical altercation ensued between Ritter and defendant. At some point, defendant pulled a handgun out of his bag and shot Ritter in the torso at close range. Ritter, who lost a large amount of blood, received life-saving treatment from the police officer who arrived at the scene and from the trauma unit at the University of Michigan Hospital, which is located nearby. Much of the incident was captured on surveillance video.
Defendant was charged with assault with intent to murder, a capital felony punishable by up to life in prison. Defendant was also charged with carrying a concealed weapon and carrying a firearm during the commission of a felony. After a preliminary examination, the matter was bound over to circuit court on all charges. While on bond awaiting trial, defendant was involved in another altercation, this one with contractors doing work on his parents’ home. Because the workers’ truck was blocking the driveway, preventing him from leaving, he became angry, started shouting, and threw the truck's fire extinguisher. As a result of this incident, defendant was charged with four additional misdemeanor offenses.
SCAO, Michigan Trial Court Records Management Standards—Case Type Codes (MCR 8.117 ) (May 2021), (A)(3)(b) (defining "capital felony" cases as those "in which life sentence is possible and a larger number of peremptory jury challenges is provided").
Defendant filed a motion to quash the bindover, which the circuit court denied. Defendant filed an interlocutory application for leave to appeal this decision in the Court of Appeals, which was also denied because the panel was not persuaded that the issue required immediate appellate review. In lieu of granting leave to appeal, we remanded the case to the Court of Appeals for reconsideration in light of People v. Yost , 468 Mich. 122, 659 N.W.2d 604 (2003), because, if the trial proceeded, the defendant would lose the opportunity to challenge the bindover. Id. at 124, n. 2, 659 N.W.2d 604 (noting that the Court of Appeals’ denial of leave for " ‘failure to persuade the Court of the need for immediate review’ " was "flawed" because "[i]f defendant went to trial and were found guilty, any subsequent appeal would not consider whether the evidence adduced at the preliminary examination was sufficient to warrant a bindover"). On remand, the Court of appeals denied defendant's application "for lack of merit in the grounds presented." People v Labelle , unpublished order of the Court of Appeals, entered October 29, 2019 (Docket No. 347421).
As trial on the felony charges approached, defendant was represented by two retained attorneys, Douglas Mullkoff and John Shea. Despite their aggressive advocacy on his behalf, defendant claimed he was dissatisfied with his legal representation. Specifically, he did not believe his attorneys were adequately considering what defendant believed to be the racial overtones of the case. Defendant eventually sought and retained an African-American attorney, Gerald Evelyn, to join his trial team and take over as lead counsel. Defense counsel requested an adjournment on October 30, 2019, only days before the trial was scheduled to begin, based in part on the fact that Evelyn was not yet prepared for trial. Because the case had already been pending for 17 months, and the trial had already been adjourned on two prior occasions, the trial court denied the motion.
According to the trial judge, during the pendency of defendant's case, defendant's retained attorneys filed approximately 33 motions on his behalf. They also filed three separate interlocutory appeals, each of which they pursued in the Court of Appeals and this Court, and this direct appeal. Finally, while defendant was awaiting sentencing, his attorneys filed a petition for habeas corpus in federal court, which was summarily dismissed. See Labelle v Clayton , order of the United States District Court for the Eastern District of Michigan, entered April 27, 2020 (Case No. 20-10971-BC), 2020 WL 8879458 (dismissing the petition for habeas corpus); Labelle v Clayton , order of the United States District Court for the Eastern District of Michigan, entered May 21, 2020 (Case No. 20-10971), 2020 WL 8879460 (denying motion for reconsideration of the order denying the petition for habeas corpus).
Defendant's trial began on November 4, 2019 (without Evelyn's participation as counsel), and on November 12, 2019, defendant was convicted on all counts. Defendant failed to appear in court on that day and absconded from the jurisdiction. A bench warrant was issued and, after a national manhunt led by the United States Marshals Service, he was apprehended at Union Station in Chicago carrying a one-way ticket to Denver and $9,000 in cash. After defendant was captured, two additional attorneys, Gerald Evelyn and Kenneth Mogill, filed their appearances as counsel for defendant. The sentencing was delayed for several months because defendant unsuccessfully sought to disqualify the trial judge. In June 2020, defendant was sentenced to concurrent prison terms of 10 to 20 years for the assault with intent to murder conviction and 2 to 5 years for his carrying a concealed weapon conviction, and to a consecutive sentence of 2 years in prison for his felony-firearm conviction.
Defendant was charged with absconding, a felony punishable by up to four years in prison. That charge was later dismissed without prejudice by the special prosecutor after defendant was sentenced to a lengthy prison sentence on the underlying crime.
After the motion was denied, defendant appealed the denial to Chief Judge Carol Kuhnke, but she recused herself because of a relationship with defendant's parents, and a substitute judge was assigned by the State Court Administrator. After that judge denied the motion, defendant sought review in the Court of Appeals and in this Court. Each of those appeals was rejected.
Because of the victim's expressed desire for leniency, the trial court's sentence was below defendant's minimum sentence guidelines range.
Defendant thereafter filed a motion for a new trial arguing, among other things, that his trial counsel were ineffective for failing to inform the trial court that defendant wanted Evelyn not just as another counsel but as his lead counsel. Defendant argued that this deprived him of the counsel of his choice. According to defendant, the Washtenaw County Prosecutor's Office informed him it would confess error on this basis. But newly elected prosecuting attorney Eli Savit removed himself from the case due to a conflict of interest or the appearance of bias. Defendant unsuccessfully moved to set aside Savit's disqualification. Subsequently, the Attorney General appointed a special prosecutor, Genesee County Prosecutor David Leyton. The special prosecutor confessed error on the ineffective-assistance claim, but the trial court rejected the confession and denied defendant's motion in a 15-page opinion and order. An appeal in the Court of Appeals followed.
According to defendant, the recusal occurred as the result of Savit's public comments on defendant's case and because defendant's mother participated in Savit's transition team.
Defendant sought an interlocutory appeal of the trial court's decision denying his motion to set aside the prosecutor's disqualification. After his interlocutory appeal was denied by the Court of Appeals, defendant appealed the issue in this Court. People v Labelle , unpublished order of the Court of Appeals, issued October 29, 2019 (Docket No. 357514). In lieu of granting leave to appeal, we remanded the case as on leave granted to the Court of Appeals. People v. Labelle , 508 Mich. 913, 962 N.W.2d 447 (2021). This appeal was dismissed by stipulation of the parties after the special prosecutor notified defendant that he, too, would be confessing error.
In the meantime, defendant moved in the trial court to be released on bond pending appeal. The trial court denied the motion, and the Court of Appeals upheld the denial. Currently before this Court is defendant's appeal of that denial. But while his appeal on this issue has been pending before the Court, the Court of Appeals accepted the special prosecutor's confession of error. Notably, the special prosecutor's confession went beyond defendant's argument. The confession focused on the fact that defendant's trial counsel waited too long—slightly over three weeks—to ask for an adjournment so that Evelyn could be substituted. Further, the special prosecutor claimed that Evelyn did not need an adjournment so that he could have time to prepare; rather, Evelyn needed an adjournment because of a scheduling conflict.
The special prosecutor did not oppose defendant's motion for bond pending appeal, even though (1) defendant was convicted by a jury of shooting the victim in the torso at close range with the intent to kill him; (2) while on bond awaiting trial, defendant was involved in another altercation resulting in misdemeanor charges; (3) defendant absconded on the last day of his trial; (4) in addition to being an obvious flight risk, defendant had a record of failing to appear for pretrial hearings, violating his bond conditions, and testing positive for drugs; and (5) the trial court found he was a risk of harm to the general public.
The special prosecutor's confession stated:
Defendant argues that due to the ineffective assistance of trial counsel the trial court was not correctly informed of the nature of Defendant's request. That is undeniably true. But just as egregious was counsel's failure to make that request in a timely manner. There was absolutely no strategic interest in failing to timely inform the trial court of Defendant's dissatisfaction with counsel's performance, his desire to retain new counsel who would consider his position on how to proceed and understand his concerns that racial undertones were a factor in the offense as well as in the defense of the case, that Defendant's chosen trial counsel had a conflict with the then-set trial date, and that assertion of his constitutional right to counsel of his choosing was a critical factor in seeking to adjourn the trial date. Because of this failure, the trial court did not even have the opportunity to weigh the legitimate factors of such a request and to exercise its discretion in determining whether to grant a short adjournment nor even the length of adjournment being sought.
In an order signed and approved by only one Court of Appeals judge, Judge DOUGLAS SHAPIRO , pursuant to MCR 7.211(C)(7), the Court of Appeals accepted the confession of error without undertaking any independent analysis of the legal basis for the confession. The case therefore returned to the trial court, ostensibly for a new trial. However, a few days later, even though she had previously recused herself from making a prior ruling in the case, and apparently without a hearing, Chief Judge Carol Kuhnke reassigned the case to the Washtenaw County Peacemaking Court. On the same date, and also apparently without a hearing, the new judge assigned to the case released defendant on a $1,000 personal bond. As of now, no plea agreement has been placed on the record and no new trial date or other pretrial hearings have been scheduled.
MCR 7.211(C)(7) provides as follows:
Confession of Error by Prosecutor. In a criminal case, if the prosecutor concurs in the relief requested by the defendant, the prosecutor shall file a confession of error so indicating, which may state reasons why concurrence in the relief requested is appropriate. The confession of error shall be submitted to one judge pursuant to MCR 7.211(E). If the judge approves the confession of error, the judge shall enter an order or opinion granting the relief. If the judge rejects the confession of error, the case shall be submitted for decision through the ordinary processes of the court, and the confession of error shall be submitted to the panel assigned to decide the case.
See note 17 of this statement. Neither defendant's request for reassignment nor the trial court's order granting the request indicates that the disqualification of Chief Judge Kuhnke was waived by the parties. See MCR 2.003(E) (providing that "[a]ny agreement to waive the disqualification [of a judge] must be made by all parties to the litigation and shall be in writing or placed on the record").
Although this order was entered on January 28, 2022, defendant was released from federal custody in a Texas low-security prison facility on January 31, 2022. It is unclear from the record why defendant was not serving his sentence in a Michigan prison.
In response to a motion for reconsideration filed in the Court of Appeals, Judge Shapiro signed an order on February 3, 2022, providing that on remand the case would be assigned to a different judge. This order did not mention or discuss the legal criteria for disqualification of a judge, and it appears to have been erroneously entered since it did not involve an administrative matter under MCR 7.211(E)(2) and the prosecutor took no position on the request (and therefore could not have confessed error with regard to the reassignment). The request therefore should have been submitted to a full panel of the Court of Appeals. See MCR 7.211(E)(1). In any event, the issue was moot because, as noted, the chief judge had already reassigned the case to a new judge.
Although defendant stated in his request for reassignment and emergency motion for release on personal bond that the parties have agreed to a plea and sentence agreement involving no additional jail time, it does not appear from the record that any such plea agreement has ever been placed on the record or approved by the trial judge.
II. COURTS SHOULD NOT BLINDLY ACCEPT CONFESSIONS OF ERROR
Because defendant has already been released on bond, his appeal on that issue is now moot. And because neither party will seek to appeal the Court of Appeals’ acceptance of the confession of error, no court will ever be able to review the merits of the confession or determine whether a new trial is truly warranted. The result is that a jury verdict finding defendant guilty of very serious crimes has been discarded without any judicial assessment of whether the claimed error was meritorious or even plausible.
I have written about confessions of error in the past, explaining how a court's blind acceptance of them represents an abdication of the judicial role. See People v. Altantawi , 507 Mich. 873, 954 N.W.2d 518 (2021) ( VIVIANO , J., dissenting). I would therefore accept them only if the confessions are plausible. People v. Hernandez , 508 Mich. 972, 973, 965 N.W.2d 554 (2021) ( VIVIANO , J., concurring). In this case, the alleged error is ineffective assistance of counsel. That means defendant must "show (1) that trial counsel's performance was objectively deficient, and (2) that the deficiencies prejudiced the defendant." People v. Randolph , 502 Mich. 1, 9, 917 N.W.2d 249 (2018). Here, defendant and the special prosecutor say that because the deficient performance led to defendant's being deprived of the counsel of his choice, defendant need not demonstrate any prejudice. This is because a defendant's Sixth Amendment right to counsel of his or her choice is a structural error, meaning that no prejudice need be shown. See United States v. Gonzalez-Lopez , 548 U.S. 140, 146, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006).
Accordingly, as the special prosecutor recognized, "the question here is whether the [trial counsel's] failure to raise the issue in a timely and appropriate manner caused" defendant to be deprived of his right to the counsel of his choice. To demonstrate this, defendant must be able to show that had his trial counsel sought an adjournment in early October on the grounds that Evelyn had agreed to be lead counsel and had a scheduling conflict, it would have been reasonably probable that the trial court would have granted the adjournment and allowed Evelyn to take over as lead counsel.
As an initial matter, it does not appear that trial counsel performed deficiently. According to the special prosecutor's confession, defendant's trial counsel initially met with Evelyn on September 25 and learned that if defendant was to be represented by Evelyn, they would need to seek an adjournment of the November 4 trial date. They filed a motion to adjourn (on other grounds) on October 1, and it was denied on October 7. But according to trial counsel, it was not until "shortly after" October 7 that they learned that Evelyn had agreed to serve as lead counsel. At that time, there were appeals pending and trial counsel had filed a motion for a stay of trial court proceedings, which would have had the same effect as an adjournment. The trial court had informed counsel that if our Court denied the motion for a stay, the trial would proceed as scheduled. We denied the motion on October 25, and three days later trial counsel moved in the trial court for a stay based again on the pending appeal. On October 30, trial counsel made the oral request for adjournment on the basis that Evelyn intended to get "on the trial team" and "would need some time to get ready." Thus, trial counsel made numerous requests in October to delay the trial. While those efforts did not emphasize Evelyn's participation, trial counsel did raise this as an alternative ground just three weeks after learning that Evelyn was willing to participate.
Even so, there is no reasonable argument that the trial court would—or should—have granted such an adjournment. We do not have to guess what the trial court would have done in these circumstances. In rejecting the motion for a new trial, the court answered the question of whether it would have granted an adjournment for this reason if the request had been made three weeks earlier, stating, "The answer is simply ‘No.’ " The trial court found that such a request would simply have been another attempt to delay trial. The trial court pointed out that even though defendant argues that counsel was wrong in saying Evelyn needed more time to get ready and was simply going to be "part of the trial team," Evelyn himself was sitting in the courtroom when this statement was made and did not attempt to correct it. Moreover, the court noted, Evelyn never filed a limited appearance under MCR 2.117(B)(2) for the purpose of seeking an adjournment. In support of its conclusion, the trial court noted that almost all of the multitudinous pretrial motions were filed by defendant. Further, the trial, which was originally scheduled for April 1, 2019, had already been adjourned "multiple times at Defendant's request."
The question is whether this reasoning constitutes an abuse of discretion. See Ypsilanti Charter Twp. v. Dahabra , ––– Mich. App. ––––, ––––, ––– N. W. 2d ––––, 2021 WL 3233609 (2021) (Docket No. 354427); slip op. at 3 (reviewing a trial court's decision on a motion for an adjournment for an abuse of discretion). A motion for adjournment can be granted "based on good cause." MCR 2.503(B)(1). The standard for determining whether an adjournment should be granted contains various factors, including whether the defendant (1) was asserting a constitutional right to counsel, (2) "had a legitimate reason for asserting this right," and (3) "was not guilty of negligence[.]" People v. Williams , 386 Mich. 565, 578, 194 N.W.2d 337 (1972). In addition, courts consider whether the defendant (4) was simply attempting to delay a trial and (5) was able to establish prejudice as a result of the court's decision. People v. Echavarria , 233 Mich.App. 356, 369, 592 N.W.2d 737 (1999).
Here, defendant has asserted his right to counsel, a constitutional right. It is well established that " ‘the right to counsel of choice is not absolute’ " but must be weighed against " ‘the public's interest in the prompt and efficient administration of justice’ " in order for a court to find a constitutional violation. People v. Akins , 259 Mich.App. 545, 557, 675 N.W.2d 863 (2003) (citation omitted). Indeed, under markedly similar facts, the Court of Appeals has held that a refusal to adjourn a case 2½ weeks before trial so that new retained counsel could be brought on was not an abuse of discretion violating the defendant's right to counsel of his choice. Id. at 558-559, 675 N.W.2d 863. Indeed, as the United States Supreme Court has stated, "[t]rial judges necessarily require a great deal of latitude in scheduling trials.... Consequently, broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay’ violates the right to the assistance of counsel.’ " Morris v. Slappy , 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) (citation omitted). This appears to be the case especially where a defendant is already represented by his or her chosen counsel. Cf. People v. Fett , 469 Mich. 913, 913, 670 N.W.2d 224 (2003) ("In this case, the out-of-state attorney was to serve as second counsel along with defendant's retained local counsel. Defendant cites no authority, nor is this Court aware of any authority, holding that, under the facts of this case, the right to the effective assistance of counsel is violated where a defendant is represented by her attorney of choice, but is denied a second attorney of choice. Accordingly, there is no basis to hold that defendant was denied the right to effective assistance of counsel for the purposes of the state and federal constitution.").
See also Maynard v. Meachum , 545 F.2d 273, 278 (C.A. 1, 1976) ("The right to counsel of one's choice is not absolute. A court need not tolerate unwarranted delays, and may at some point require the defendant to go to trial even if he is not entirely satisfied with his attorney."). One federal circuit noted that "[a]lthough delay is generally a valid reason to deny a motion to substitute counsel, it is not necessarily valid where counsel is shown to be providing constitutionally ineffective representation." United States v. Brumer , 528 F.3d 157, 161 (C.A. 2, 2008). There is no assertion here that defense counsel had been providing ineffective assistance of counsel such that an adjournment would have justified allowing Evelyn to join the defense team.
Under the present circumstances, it is inconceivable that it would have been an abuse of discretion for the trial court to reject yet another adjournment so that defendant could receive the services of a third counsel of his choice. Neither defendant nor the special prosecutor cited any case remotely suggesting that the Constitution requires such red-carpet treatment. Even in more traditional cases, like Akins , a last-minute request for an adjournment to obtain an entirely new (lone) counsel was properly rejected. This is especially so when the request appears to be little more than a stalling tactic. Defendant's request here appears to fit that bill. He has provided only a vague rationale for seeking Evelyn's help in the first place. Defendant had two counsel of his own choosing. While he asserted some unexplained dissatisfaction with his counsel's representation, he apparently did not wish to remove them from the case. Defendant's affidavit did not explain the strain in the relationship other than that it related to "racial overtones to this case" that he felt they were not "sensitive" to. Instead, as the special prosecutor has put it, he "desired an African-American attorney to consider his opinions, understand his concerns, and present his case theory at trial." Perhaps concerns of this nature might sometimes bear upon choice of counsel, but the concerns as defendant has expressed them are too vague to establish that this was a legitimate reason in this case. It is not clear that Evelyn would have adopted a strategy or approach to the case that his trial counsel were unwilling to undertake. Cf. Echavarria , 233 Mich. App. at 369, 592 N.W.2d 737 ("Although defendant was asserting his constitutional right to counsel, there was no bona fide reason for asserting the right.").
Further evidence that defendant merely sought a delay is that, even assuming he did have a legitimate reason for the request, he was negligent in waiting until October to make it. By the time Evelyn agreed (sometime after October 7, 2019) to represent defendant, defendant's case had been pending for nearly 17 months. Defendant does not justify this lengthy delay in seeking a new lead counsel. There is no explanation for why he waited until a few weeks before the rescheduled trial date to express his desire for a new attorney.
Here, defendant received aggressive and effective representation by two retained attorneys of his choice. Indeed, this is one of the most aggressively litigated criminal cases that I have ever encountered. As the trial court noted, those efforts had already caused significant delays. In that light, and given the defendant's vague rationale for seeking yet another attorney, the trial court properly determined that defendant's motives were dilatory rather than legitimate. There can be no serious argument that it would have been an abuse of discretion for the trial court to deny a motion for adjournment so defendant could have the assistance of a third lawyer of his choice under these circumstances. I therefore do not believe that the special prosecutor's confession is remotely plausible and believe it should have been rejected by the Court of Appeals on that ground.
See note 3 of this statement.
III. CONCLUSION
As I mentioned at the outset, this case is a particularly vivid example of how unquestioning acceptance of confessions of error can undermine public confidence in the fairness of the criminal justice system. The parties appear to have used the confession of error to treat this case as a private dispute that they can settle on their own terms. The societal interest in punishment goes well beyond satisfying the prosecutor, the defendant, or even the victim. The public, too, has interests that must be considered in any criminal case. See People v. Snow , 386 Mich. 586, 592, 194 N.W.2d 314 (1972) (noting the principles that guide sentencing as: "(a) the reformation of the offender, (b) protection of society, (c) the disciplining of the wrongdoer, and (d) the deterrence of others from committing like offenses"). Defendant was convicted by a jury of his peers and sentenced to a lengthy prison term for an assault that was intended to, and nearly did, result in the victim's death. I would be hard-pressed to explain to the jurors who served on this jury why their verdict was cast aside and why the defendant is not being held to account for his behavior. And I certainly could not explain why the product of their time, attention, and deliberation has been thrown out on appeal when no appellate court has found that any error actually occurred or that any error was even remotely plausible.
I believe there are many serious questions about how this case has been handled by the parties and the courts. Because the special prosecutor has not contested many controversial decisions in this case—and instead has at times actively advocated on defendant's behalf—the substance of those decisions will never be reviewed by an appellate court. The zeal with which the special prosecutor has confessed such an implausible error itself raises troubling questions. The unquestioning acceptance of the confession of error by one Court of Appeals judge—though apparently allowed by our court rules—is also problematic in my view.
But perhaps most concerning is the chief judge's reassignment of this very serious criminal matter to a specialty court when the defendant is still awaiting retrial on a capital felony charge. The reassignment occurred immediately when the case was remanded to the trial court, apparently without a hearing, by a judge who had already recused herself from a prior ruling on the case. It is unclear from the record whether the chief judge consulted the trial judge who presided over this case for over two years before removing the case from his docket.
Unlike other specialty courts, the Peacemaking Court does not appear to have any statutory authority or other rules setting forth its eligibility criteria and procedures. Notably, the case was reassigned to the Peacemaking Court even though defendant was charged with a violent offense, a fact that would have made him ineligible for most other specialty courts. See, e.g., MCL 600.1203(1) (stating that violent offenders are not eligible for admission to a veterans treatment court) and MCL 600.1064(1) (providing the same eligibility restriction for drug treatment courts). And the case was reassigned even though no plea agreement appears to have been entered. This, too, strikes me as very unusual since, ordinarily, a defendant is required to plead guilty as a condition of his or her entry into a specialty court program. See, e.g., MCL 600.1205(1)(b) (requiring an individual to plead guilty to the charges on the record as a condition of admission to a veterans treatment court). It remains unclear how this most unusual reassignment will affect the ultimate resolution of this case.
The manner in which this case has been handled by the parties and the courts shows a blatant disregard for the jury's service and raises troubling questions about judge-shopping, favoritism, and unequal treatment of this defendant. Although I am confined to the present appeal regarding defendant's bond pending appeal, which I agree should be denied as moot, I once again must express my strong disapproval of the casual use of confessions of error to thwart the ends of justice. For these reasons, I concur.
Cavanagh, J. (concurring).
I agree with Justice VIVIANO that, in deciding whether to grant relief on appeal, there are many different perspectives to consider. Generally, we allow the parties to a case to be the architects of their own claims. See Mich. Gun Owners, Inc. v. Ann Arbor Pub. Schs. , 502 Mich. 695, 709-710, 918 N.W.2d 756 (2018), quoting Greenlaw v. United States , 554 U.S. 237, 243, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008) (" ‘[I]n both civil and criminal cases, in the first instance and on appeal, we follow the principle of party presentation. That is, we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.’ "). Here, the special prosecutor and defendant agreed that ineffective assistance of counsel tainted defendant's jury convictions. So, the special prosecutor confessed error, and the Court of Appeals approved the confession of error as provided by the court rules. MCR 7.211(C)(7) ; MCR 7.211(E)(2). And following the vacation of defendant's sentences by the Court of Appeals, the special prosecutor and defendant agreed to refer the case to restorative justice through the Washtenaw County Peacemaking Court. Justice VIVIANO emphasizes that the parties’ perspectives might be at odds with what he presumes to be the perspectives of the jurors and the trial judge involved. Perhaps, but the perspective of the victim is also important and, here, the perspective of the victim aligns with that of the defense and the prosecution. Not only did the victim agree to participate in the Peacemaking Court, but he apparently desired a restorative-justice approach from the get-go, as he made clear at defendant's sentencing hearing:
I disagree with Justice Viviano ’s conclusion that Judge Shapiro , acting under MCR 7.211(C)(7), undertook no independent analysis in accepting the confession of error. MCR 7.211(C)(7) grants discretion to the designated Court of Appeals judge to either approve or reject the confession of error, with further process if the judge rejects the confession. Id. The rule does not require that the order specify the legal reasoning behind the decision, and the omission of the reasoning from the order does not suggest that no analysis occurred. The Court of Appeals often denies applications succinctly by referring to the "lack of merit in the grounds presented" or "failure to persuade the Court of the need for immediate appellate review." It is also standard practice for our Court to deny applications because "we are not persuaded that the question(s) presented should be reviewed by this Court." (This standard denial order language presumably satisfies this Court's obligation under Const. 1963, art. 6, § 6 to provide "a concise statement of the facts and reasons" for each denial of leave to appeal.) I believe that our judicial colleagues seriously consider every application and motion in front of them, and I see no basis on the record in this case to conclude otherwise.
Restorative-justice approaches are not inconsistent with societal interests. Indeed, the foundational principle of tribal court peacemaking is that humans are profoundly connected to one another and their communities—people are not simply individuals in society but instead owe special obligations to others. Butterwick, Connors, & Howard, Tribal Court Peacemaking: A Model for the Michigan State Court System? , 94 Mich B J 34, 34, 38 (June 2015). Evidence-based diversion models offer an alternative to the traditional adversarial system and may reduce recidivism in addition to serving the needs of the participants. See generally Krinsky & Komar, "Victims’ Rights" and Diversion: Furthering the Interests of Crime Survivors and the Community , 74 SMU L Rev 527 (Summer 2021).
I have asked the Court and the Sheriff to let me and [defendant] meet to talk about what happened that night, to talk about why it happened, to talk about how both of us feel about both our actions that night and what is fair for both of us going forward to make us whole. I know that [defendant] wanted to meet and do this and I wanted to do this, and no one would let us. The prosecutor wouldn't listen to me, the Judge denied my request.... I want what is fair to me. I want to talk to him and work this out. I do not want him to go to prison for this. It doesn't help me. It won't make me feel any better or make me safer and I don't think it will help him or anyone else.
Because I would not disturb the resolution sought by defendant, the prosecution, and the victim, I concur in the order denying the application.
McCormack, C.J., did not participate due to her preexisting relationship with a party.