Order Michigan Supreme Court 

Lansing, Michigan 

October 24, 2008 Clifford W. Taylor,

 Chief Justice 

136781 & (89) Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly PEOPLE OF THE STATE OF MICHIGAN, Maura D. Corrigan Plaintiff-Appellee, Robert P. Young, Jr. v SC: 136781 Stephen J. Markman, COA: 272591 Justices 

Benzie CC: 05-001955-FC 

MARK STEVEN UNGER, 

Defendant-Appellant. 

_________________________________________/ 

On order of the Court, the motion for miscellaneous relief is GRANTED. The 

application for leave to appeal the March 20, 2008 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. 

CAVANAGH, J., would grant leave to appeal. 

KELLY, J. (dissenting). 

 Defendant was convicted of first-degree murder after a highly publicized and 

sensational jury trial. The Court of Appeals affirmed the verdict,1

 but expressed 

displeasure at several instances of prosecutorial misconduct during the trial. This Court 

should consider this misconduct to determine whether defendant received a fair trial. 

The Court of Appeals concluded that the prosecutor crossed the line between 

strong advocacy and prosecutorial misconduct when it 

suggested that defense counsel had “re-victimized” Florence Unger during 

the course of trial. A prosecutor may not appeal to the jury to sympathize 

with the victim. Nor may a prosecutor urge the jury to convict as a part of 

its civic duty or on the basis of its prejudices. The prosecution’s comments 

were . . . improper. 

*** 

1 People v Unger, 278 Mich App 210 (2008). 
 _________________________________________ 

 

 

2 

The prosecution also clearly exceeded the bounds of proper 

argument when it suggested (1) that defense counsel had attempted to 

“confuse the issue[s]” and “fool the jury” by way of “tortured questioning,” 

“deliberately loaded questions,” and “a deliberate attempt to mislead,” (2) 

that defense counsel had attempted to . . . us[e] “red herrings” and “smoke 

and mirrors,” and (3) that defense counsel had attempted “to deter [the jury] 

from seeing what the real issues are in this case.” 

*** 

. . . Arguing that an expert witness had a financial motive to testify is 

one thing; arguing that the expert has intentionally misled the jury is quite 

another. . . . [I]n a case that turns largely on conflicting expert testimony, a 

prosecutor must take special steps to avoid misconduct designed to impugn 

the integrity of the defendant’s experts. . . . We find that the challenged 

prosecutorial remarks unnecessarily and impermissibly impugned the 

integrity of Dr. Paul and that the prosecution committed misconduct in this 

respect.[2] 

However, the Court of Appeals dismissed any notion that these improper 

arguments affected the jury’s verdict by stating that the trial court’s jury instructions 

cured the midsconduct.3

 The judge told the jury that the prosecutor’s comments were not 

evidence. 

In People v Tyson,

4

 this Court held that a prosecutor must not improperly impugn 

the integrity of a defendant’s experts, especially in a case that turns largely on conflicting 

expert testimony. Here, the prosecutor did not take special steps to avoid misconduct, 

and his comments threatened defendant’s right to a fair trial. This is especially true 

because there was no direct evidence of defendant’s guilt, and the prosecution relied 

heavily on circumstantial evidence. 

As a consequence, the Court should grant leave to appeal to determine whether the 

prosecutorial misconduct denied defendant a fair trial. 

2 Id. at 237-240 (citations omitted). 

3 Id. at 234, 238, 240-241.
 4 People v Tyson, 423 Mich 357 (1985). 

t1021 

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

October 24, 2008 

Clerk