Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanag h

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathawa y A lton Thomas Davis,
J ustices 

# Order

December 1, 2010

138577 & (116)(117)

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v SC: 138577 COA: 279017 Wayne CC: 05-003228-01 ALEXANDER ACEVAL, Defendant-Appellant.

________________ _______________ __________/

On November 4, 2010, the Court heard or al argument on the application for leave to appeal the February 5, 2009 judgment of th e Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we ar e not persuaded that the questions presented should be reviewed by this Court. The motions for expedited

consideration and for immediate cons ideration are DENIED as moot.

M ARKMAN , J. ( dissenting ).

I respectfully dissent. This case is singular and, hopef ully, will remain as much. It is an extraordinary “ case without precedent and very likely without duplicate hereafter,” People v Smith , 405 Mich 418, 436 (1979), in wh ich the prosecutor, the judge, and the police, were each involved in enablin g perjured testimony. As the Court of Appeals observed, their condu ct was “disgraceful,” “plainly reprehensible,” and “opprobrious.” At the end of this deeply fl awed trial, the jury was unable to reach a verdict and the judge declared a mistrial. Over defendan t’s objection, a second trial began and defendant eventually pled guilty.

I am of the view that th e jury — which could not reac h a verdict of guilty even

absent an awareness of the ta inted evidence — would almost certainly have found it to be of significance as to the cred ibility of the principal witne ss against defendant that the witness had been promised, upon defendant’s conviction, 10% of the expected forfeiture proceeds, an amount estimated to be as mu ch as $100,000. Had the jury been made aware of this evidence, as it sh ould have been, there is a r easonable chance that defendantI, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk December 1, 2010

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would have been acqu itted, which acquittal under th e United States and Michigan

Constitutions would have barred a second trial.

I am further of the view that had it become known during trial that: (a) the principal witness testified fals ely concerning this interest; (b) that such testimony was known to be false by both the prosecutor and the judge; and (c) th at the prosecutor and the judge colluded in allowing such false te stimony, a mistrial al most certainly would have been required on accoun t of such misconduct. And such a mistrial — one occasioned by circumstances directly “attri butable to prosecutor ial [and] judicial overreaching” — would almost ce rtainly have deprived the prosecutor, under either the due process or the double jeopardy clau ses of the United States and Michigan Constitutions, of a second opport unity to try the defendant. United States v Dinitz , 424 US 600, 607 (1976). Th at such circumstances did not come to light until after the trial,

and that the state therefore was able to tr y defendant a second time “cannot make an unconstitutional second trial retrospectively valid.” People v Lett, 466 Mich 206, 229 (2002) (C AVANAGH , J., dissenting.)

Because defendant’s trial neither entailed a search for the truth, nor adhered to constitutional first principles of fair proce dure, I would reverse the Court of Appeals, vacate defendant’s conviction, and hope never agai n to see such a case within our criminal justice system.

H ATHAWAY , J. ( dissenting ).

I would grant leave to app eal in this matter because the issues before us are significant and worthy of full Court review before this Court renders its decision.

C ORRIGAN

, J., states as follows:

I am not participating because I may be a witness in a related case.