Wayne
CC: 14-006454-FH
Bridget M. McCormack, Chief Justice David F. Viviano, Chief
Justice Pro Tem Stephen J. Markman Brian K. Zahra Richard H.
Bernstein Elizabeth T. Clement Megan K. Cavanagh, Justices
ORDER
On
order of the Court, the application for leave to appeal the
November 2, 2017 judgment of the Court of Appeals is
considered, and it is DENIED, because we are not persuaded
that the questions presented should be reviewed by this
Court.
McCormack, C.J. (concurring).
I
concur in the order denying leave to appeal and write
separately to highlight two errors I believe the Court of
Appeals made in its published opinion and to reiterate my
hope that the United States Supreme Court will clarify the
proper application of harmless-error analysis in this
context. Given the current law, I cannot say that the Court
of Appeals erred in its conclusion that the error here was
harmless. I reluctantly agree with the order denying leave to
appeal.
I think
the Court of Appeals' analysis of the first factor that
Coleman v Alabama, 399 U.S. 1 (1970), identifies as
important to the role for counsel at a preliminary
examination is flawed. The first Coleman factor is
"the lawyer's skilled examination and
cross-examination of witnesses may expose fatal weaknesses in
the State's case that may lead the magistrate to refuse
to bind the accused over." Id. at 9. The panel
reasoned that "[g]iven that defendant was convicted at
trial on the basis of sufficient evidence, the possibility
that counsel could have detected preclusive flaws in the
prosecution's probable-cause showing is moot."
People v Lewis (On Remand), 322 Mich.App. 22, 31
(2017). But in our prior opinion, we explained that
Coleman does not permit a court to presume that if a
defendant is ultimately convicted after a fair trial, he
suffered no harm from the deprivation of counsel at the
preliminary examination. People v Lewis, 501 Mich.
1, 11 (2017). While the Court of Appeals cited that passage
in its analysis, it nonetheless stated that the fact of the
conviction "is relevant to our consideration of the
first Coleman factor." Lewis (On
Remand), 322 Mich.App. at 31. Whatever the correctness
of that statement (and I express no opinion on it), the panel
then said that the defendant's conviction made this
factor moot. That is, the Court of Appeals seemingly
made the fact of the conviction at trial dispositive to its
analysis of the first factor, which this Court said is not
permissible.[1]
The
panel's analysis of the second Coleman factor is
also flawed. That factor is "the skilled interrogation
of witnesses by an experienced lawyer can fashion a vital
impeachment tool for use in cross-examination of the
State's witnesses at the trial, or preserve testimony
favorable to the accused of a witness who does not appear at
the trial." Coleman, 399 U.S. at 9. The Court
of Appeals relied heavily on the fact that trial counsel was
given a transcript of the preliminary examination in
concluding that this factor weighed in favor of finding the
error harmless. But this misses the point: a transcript of a
preliminary examination conducted without the benefit of
defense counsel doesn't address the problem that the
prosecution's witnesses were not cross-examined at that
hearing. And like the panel's analysis of the first
factor, this reasoning would result in finding error harmless
in every case conducted in absence of defense counsel:
preparing a transcript isn't the problem; it's that
the transcript is unhelpful. Thus, counsel's possession
of the preliminary examination transcript is entitled to
little weight in the analysis.
Despite
these flaws, I believe the Court of Appeals correctly
concluded that any error in depriving the defendant of
counsel at the preliminary examination was harmless. The
panel correctly analyzed the remaining Coleman
factors and specific circumstances of this case. But I reach
this conclusion largely because Coleman takes
"the two perhaps most intuitive options for assessing
harm off the table," Lewis, 501 Mich. at 12,
leaving reviewing courts without much guidance about how to
apply harmless-error review in this context. Guidance from
the United States Supreme Court would be welcome. I hope that
Court will either provide such guidance or clarify
"whether the Coleman harmless-error review
remains a sustainable rule when a defendant is denied counsel
at a preliminary examination." Lewis, 501 Mich.
at 16 (McCormack, J., concurring).
Bernstein and Clement, JJ., join the statement of McCormack,
C.J.
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Notes:
[1] The Court of Appeals cited
Coleman in support of its analysis of this factor,
but its citation was to Justice White's concurring
opinion, which of course is nonbinding. Lewis (On
Remand), 322 Mich.App. at 31, citing Colem ...