917 N.W.2d 355
Mich.2018Background
- Victim Tanya Harris was found strangled in 1993; DNA testing of 2011 produced mixed profiles from fingernail swabs and matches to defendant on multiple swabs.
- Defendant (Kennedy) was already incarcerated for a similar 1996 strangulation and was charged with Harris’s murder.
- Defense requested appointment of a DNA expert (Brian Zubel) at public expense to assist counsel in understanding and confronting the prosecution’s DNA evidence; trial court denied the request.
- Jury convicted Kennedy of first‑degree premeditated murder.
- The Michigan Court of Appeals affirmed under state statute MCL 775.15 (per Jacobsen/Tanner line), finding no abuse of discretion; a dissent argued denial of expert violated due process.
- Michigan Supreme Court granted review to decide whether Ake or MCL 775.15 governs indigent defendants’ requests for state‑funded experts and what showing is required.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Kennedy) | Held |
|---|---|---|---|
| Governing law for indigent requests for court‑funded experts | MCL 775.15 governs appointment of experts; Court of Appeals applied Jacobsen/Tanner. | Ake’s due‑process framework governs requests for experts at government expense. | Ake governs; MCL 775.15 does not encompass indigent requests for appointment of experts and Jacobsen/Tanner overruled to that extent. |
| Required showing to obtain court‑funded expert under due process | Defendant must show nexus/likely benefit (as applied under Jacobsen/Tanner). | Ake requires a Mathews v. Eldridge balancing; defendant need not prove expert’s view in advance but must show more than mere possibility. | Adopted Moore’s “reasonable‑probability” standard: defendant must show a reasonable probability that (1) an expert would assist and (2) denial would result in a fundamentally unfair trial. |
| Practical burden on counsel who lack technical expertise | Court should require detailed proof of what expert would say (to avoid fishing expeditions). | Requiring detailed proof is often impossible before consulting an expert; burdens should be balanced. | Moore standard balances both concerns—requires informative, specific proffer about how expert would be useful (nature of crime, evidence, type of expert). |
| Remedy on appeal (what to do with Court of Appeals decision) | Affirm under MCL 775.15. | Vacate and remand to apply Ake/Moore standard. | Vacated Court of Appeals decision and remanded for application of Ake and the Moore reasonable‑probability test. |
Key Cases Cited
- Ake v. Oklahoma, 470 U.S. 68 (due process requires state‑provided psychiatric assistance when sanity is a significant factor)
- Moore v. Kemp, 809 F.2d 702 (11th Cir.) (adopts the reasonable‑probability standard for entitlement to court‑funded experts under Ake)
- People v. Tanner, 469 Mich. 437 (Mich. 2003) (Michigan precedent applying MCL 775.15 to expert requests; overruled to the extent inconsistent with Ake)
- People v. Jacobsen, 448 Mich. 639 (Mich. 1995) (Michigan precedent requiring nexus between facts and need for an expert; overruled to the extent inconsistent with Ake)