People of Michigan v. Johnny Ray Kennedy
323741
Mich. Ct. App.Jul 26, 2016Background
- Defendant Johnny Ray Kennedy was charged with murder after DNA testing on evidence from a sexual assault/strangulation victim tied him to the crime.
- Defense counsel moved for appointment of Brian Zubel, a forensic/DNA expert, to assist in preparing to confront the prosecution’s DNA evidence.
- The trial court denied the appointment but suggested defense counsel could consult the expert informally or “read up on him.”
- At trial the prosecution presented two forensic experts who explained the DNA testing and results to the jury.
- Judge Stephens (dissenting) argues counsel could not effectively challenge the prosecution’s scientific testimony without appointed expert assistance and that the court should have granted limited funds for a consulting expert.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether due process/Ake requires appointment of a defense DNA expert | Kennedy failed to identify specific flaws or how an expert would benefit the defense, so appointment was not warranted | A defense expert was necessary for a meaningful opportunity to confront and challenge complex DNA evidence; counsel could not know what to challenge without expert assistance | Trial court denied the appointment; dissent (Stephens) would find that denial violated defendant’s right to present a defense and that a consulting expert should have been appointed under Mathews/Ake balancing |
| Whether Mathews balancing supports appointing a consulting expert | Government interest in conserving public funds outweighs speculative benefit to defense absent particularized need | The private liberty interest and high risk of erroneous deprivation weigh strongly for appointment, especially given the centrality of DNA evidence | Dissent: Mathews factors favor limited appointment for consultation, with retention contingent on showing a particularized need for testimony |
| Whether counsel can prepare to challenge forensic testimony without expert assistance | Counsel can prepare via research and informal consultation; no entitlement to appointed expert absent showing | Expert needed to educate counsel on testing, contamination, calibration, and to generate effective cross-examination/themes | Dissent: Expecting counsel to perform effective scientific defense without expert assistance is unrealistic; appointment was required |
Key Cases Cited
- Mathews v. Eldridge, 424 U.S. 319 (1976) (three-factor due-process balancing test)
- Ake v. Oklahoma, 470 U.S. 68 (1985) (state must provide psychiatric expert where defendant’s sanity is likely a significant factor)
- People v. Ackley, 497 Mich. 381 (2015) (counsel may be ineffective for failing to investigate and secure expert assistance)
- Couch v. Booker, 632 F.3d 241 (6th Cir. 2011) (opinion on need to know what evidence says to make reasoned litigation judgments)