Michigan Supreme Court

Lansing, Michigan

Stephen J. Markman, Chief Justice

Brian K. Zahra

Bridget M. McCormack

David F. Viviano 

Richard H. Bernstein

Kurtis T. Wilder

Elizabeth T. Clement, Justices

Order 

December 27, 2018

157388 & (141)

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant/

Cross-Appellee,

v SC: 157388

COA: 327799 

Macomb CC: 2014-000167-FC

JOHN BUTSINAS,

Defendant-Appellee/

Cross-Appellant.

_________________________________________/

On order of the Court, the application for leave to appeal the January 23, 2018 

judgment of the Court of Appeals, and the application for leave to appeal as 

cross-appellant are considered, and they are DENIED, because we are not persuaded that 

the questions presented should be reviewed by this Court. 

MARKMAN, C.J. (dissenting). 

I respectfully dissent from this Court’s order denying leave to appeal. The Court 

of Appeals in a split decision held that defendant was entitled to a new trial because the 

prosecutor violated his duty to disclose exculpatory and impeachment evidence to the 

defense under Brady v Maryland, 373 US 83 (1963), by failing to disclose two reports 

that had been prepared by Child Protective Services (CPS) in 2010 and 2013 concerning 

alleged sexual abuse by defendant. People v Butsinas, unpublished per curiam opinion of 

the Court of Appeals, issued January 23, 2018 (Docket Nos. 327796 and 327799). Judge 

O’BRIEN dissented with respect to the granting of a new trial, concluding that it was “not 

necessary because the reports are not material when viewed in totality.” Butsinas, unpub 

op at 2 (O’BRIEN, J., concurring in part and dissenting in part).

“[T]he components of a ‘true Brady violation,’ are that: (1) the prosecution has 

suppressed evidence; (2) that is favorable to the accused; and (3) that is material.” 

People v Chenault, 495 Mich 142, 150 (2014). “To establish materiality, a defendant 

must show that ‘there is a reasonable probability that, had the evidence been disclosed to 

the defense, the result of the proceeding would have been different.’ ” Id., quoting 

United States v Bagley, 473 US 667, 682 (1985). I do not address at this time whether 

knowledge of the CPS reports should be imputed to the prosecutor for the purposes of the 

first Brady component, see Kyles v Whitley, 514 US 419, 437 (1995) (explaining that “the 

individual prosecutor has a duty to learn of any favorable evidence known to the others 
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acting on the government’s behalf in the case”),1 nor do I address whether the CPS 

reports were “favorable to the accused,” because for the reasons thoroughly explained by 

Judge O’BRIEN, the third component, the requirement of materiality, was not satisfied 

here.

Concerning the 2010 CPS report, which indicates that the victim failed to inform 

CPS during that investigation that she had been abused by defendant, I fail to discern how 

defendant would have been acquitted had defense counsel been in possession of this 

report largely because the information therein is cumulative to the information presented 

at trial given that all witnesses, including the victim herself, agreed that she never 

disclosed such abuse to anyone at the time. Furthermore, the victim’s sister testified at 

trial that she had filed a complaint with CPS around 2010 regarding defendant and that 

nothing resulted from her complaint. Indeed, during closing arguments, defense counsel 

observed that if a complaint had been filed with CPS by the victim’s sister, defendant was 

presumably vindicated. Given these circumstances, the jury likely inferred that CPS 

 1 Caselaw from other jurisdictions suggests that it is far from settled that CPS is an agent 

of the prosecutor for the purposes of Brady. See, e.g., Harm v State, 183 SW3d 403, 407 

(Tex Crim App, 2006) (“CPS is charged with protecting the welfare and safety of 

children in the community. This duty may entail the investigation of child-abuse claims, 

but that alone does not automatically transform CPS case workers into law-enforcement 

officers or state agents.”); People v Terry, 19 App Div 3d 1039, 1039 (2005) (“[T]he

[CPS] report itself, if indeed one exists, is not Brady material because the prosecutor 

never possessed it.”).

Furthermore, with regard to the “suppression” aspect of the first Brady

component, I note that defense counsel indicated during the Ginther hearing that he had 

been aware of the existence of the CPS reports and that those, in fact, may have been 

obtained by defendant prior to trial because he was “[a] person named in the report or 

record as a perpetrator or alleged perpetrator of the child abuse . . . .” MCL 

722.627(2)(f); see also People v Ginther, 390 Mich 436 (1973). See also Michigan 

Department of Health and Human Services, Services Requirements Manual, SRM 131 

(September 1, 2015), pp 14, 16 (providing that “children’s protective services case 

information or records” may be released to “[a] person named in a children’s protective 

services investigation report as a perpetrator or alleged perpetrator of child abuse or 

neglect”), available at <https://dhhs.michigan.gov/OLMWeb/ex/SR/Mobile/SRM/

SRM%20Mobile.pdf (accessed December 20, 2018)> [https://perma.cc/N4YT-PY8J]. 

While it is true that “a diligence requirement is not supported by Brady or its progeny,” 

Chenault, 495 Mich at 146, it is also true that “evidence that the defense knew of 

favorable evidence will reduce the likelihood that the defendant can establish that the 

evidence was suppressed for purposes of a Brady claim,” id. at 155 (emphasis added). 

The Court of Appeals engaged in no significant analysis concerning whether one or both 

of the CPS reports were genuinely “suppressed” by the prosecutor.
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interviewed the victim around 2010 and she did not disclose that defendant was abusing 

her.

In concluding that possession of the 2010 CPS report would have aided the 

defense, the Court of Appeals reasoned that defense counsel “likely would have” 

presented a witness “to educate the jury regarding the techniques routinely employed to 

elicit truthful information in similar circumstances” and that such a witness “could have” 

been used by defense counsel to illustrate for the jury “the general accuracy and 

reliability of forensic interviews and interviewing techniques.” Butsinas, unpub op at 11. 

However, as defendant himself acknowledges in his answer to the prosecutor’s 

application for leave to appeal, “[t]he defense [in fact] presented Katherine Okra as an 

expert in forensic interview protocol,” and Dr. Okra testified at length about that 

protocol. And as explained previously, the jury likely inferred that the victim had been 

interviewed by CPS in 2010, but that she did not disclose the abuse to CPS at that time. 

That is, the jury likely inferred that the victim did not disclose the abuse despite the 

forensic interview protocol. Consequently, the hypothetical offered by the Court of 

Appeals actually occurred at trial-- a witness apprised the jury concerning forensic 

interview protocol-- and it is thus unwarranted to grant a new trial in large part so that 

defendant can present the same evidence once more. 

Concerning the 2013 CPS report, that report would likely have been even less 

helpful to the defense than the 2010 CPS report. First, the 2013 CPS report contradicted 

a police officer’s testimony concerning the reason why the victim was not interviewed at 

Care House in 2013, but I fail to discern the significance of this contradiction in assessing 

whether defendant was guilty of the charged offenses. Second, the report indicated that 

the victim told the police that she had been sexually abused during the day, whereas she 

testified at trial that she was sexually abused at night. In my judgment, this is a relatively 

minor detail that would not have been given significant weight by the jury, given that the 

sexual assaults occurred both repeatedly and several years earlier. Third, the report 

indicated that the victim’s sister disliked defendant, but this fact was also minimally 

relevant because the entire case was predicated on the victim’s allegations. Put simply, as 

Judge O’BRIEN observed, the 2013 CPS report only includes “inconsequential pieces of 

impeachment evidence, which do not, in any conceivable way, undermine confidence in 

the jury verdict.” Butsinas, unpub op at 3 (O’BRIEN, J., concurring in part and dissenting 

in part).

To summarize, the CPS reports here were not “material” under Brady and the 

Court of Appeals erred by concluding otherwise. Accordingly, I would reverse the Court 

of Appeals’ ruling that defendant was entitled to a new trial on the basis of the
I, Larry S. Royster, 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.

 December 27, 2018 

t1226

4

Clerk

alleged Brady violation and remand to that court to address defendant’s remaining 

arguments that have not yet been addressed. 

ZAHRA and WILDER, JJ., join the statement of MARKMAN, C.J.