PEOPLE V SIERB
Docket No. 107551
Supreme Court of Michigan
March 17, 1998
Argued October 8, 1997 (Calendar No. 9)
456 MICH 519
In an opinion by Justice BOYLE, joined by Chief Justice MALLETT, and Justices BRICKLEY, WEAVER, and TAYLOR, the Supreme Court held:
The due process guarantees of the Michigan and United States Constitutions do not preclude retrial of this defendant under these circumstances.
1. Only procedural due process is guaranteed by the text of the Fourteenth Amendment. The underlying purpose of substantive due process is to secure the individual from the arbitrary exercise of governmental power. Substantive due process has not been expanded as an independent source of limitation on government, however, other than in matters relating to marriage, family, procreation, and the right to bodily integrity. Nor should it be expanded to sanction new remedies that duplicate the protections of specific constitutional provisions. As long as jeopardy has not attached, or the statute of limitations has not run, a prosecutor may reinstate the original charge on the basis of obtaining a new indictment and thus beginning the process anew.
2. In dismissing this case under the circumstances presented, the trial court violated the doctrine of separation of powers. Whatever the reach of substantive due process, the claim in this case does not approach the threshold. There is no historical, textual, or empirical foundation that requires inferring a new remedy under substantive due process.
Justice CAVANAGH, joined by Justice KELLY, dissenting, stated that this case should be analyzed in accordance with past precedent so as to find that a third retrial would be so prejudicial to the defendant as to violate his right to due process on these particular and unusual facts. The defendant was charged with arson. No direct evidence was presented linking him to the fire, and the only indirect evidence was burn patterns on the floor, which indicated the presence of flammable liquids. The defendant came forward with evidence that those liquids were routinely stored in that area. The case, thus, turned entirely on expert testimony. While the appointment of necessary defense experts is required by
Instead of merely focusing on the task at hand, the majority seeks to effectively sound a death knell for the concept of substantive due process under
219 Mich App 127; 555 NW2d 728 (1996) reversed.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O‘Hair, Prosecuting Attorney, Timothy A. Baughman, Chief, Research, Training and Appeals, and Jeffrey Caminsky, Assistant Prosecuting Attorney, for the people.
Magill & Szymanski (by Duncan M. Szymanski) for the defendant.
BOYLE, J. The trial court granted defendant‘s motion to dismiss with prejudice charges of burning real and insured property following the second declaration of a mistrial because of jury inability to agree on a verdict. We granted leave to appeal to determine whether the trial court correctly inferred this remedy from the substantive Due Process Clause of the constitution. We hold that the due process guarantees of the Michi-
I
The defendant was charged and bound over on one count of burning real property,
The defendant moved for dismissal of the charges. Acknowledging that the earlier mistrials had not been the result of procedural or substantive errors in the trial process, defendant contended that retrial after two hung juries would be so fundamentally unfair that it would violate the constitutional guarantee of
The Court of Appeals affirmed in a two-to-one decision.3 It reasoned that the emotional and financial strain of a third trial would weigh so heavily on defendant that it would violate the defendant‘s right to due process.4 We granted leave to appeal.5
II
On appeal, defendant argues only that the due process guarantees of the state and federal constitutions preclude a third trial on these charges.6 The standard of review is de novo with regard to questions of law. People v Carpentier, 446 Mich 19; 521 NW2d 195 (1994).
The
III
The defendant relies on five cases in support of the contention that retrial would violate the substantive guarantees of due process: United States v Ingram, 412 F Supp 384 (D DC, 1976), State v Witt, 572 SW2d 913 (Tenn, 1978), State v Moriwake, 65 Hawaii 47; 647 P2d 705 (1982), State v Abbati, 99 NJ 418; 493 A2d 513 (1985), and People v Thompson, 424 Mich 118; 379 NW2d 49 (1985). However, none of these cases except Thompson addresses the Due Process Clause in the context of a retrial after a properly declared mistrial,11 and Thompson does so only in
Neither the cases cited nor our independent research supports the proposition that the protections of substantive due process require recognition of a remedy for the harm incident to one or more mistrials.13 Some courts have declared the inherent author-
IV
The United States Supreme Court has declined to expand substantive due process as an independent source of limitation on government.
In Hurtado v California, 110 US 516, 527; 4 S Ct 111; 28 L Ed 232 (1884), it was held that the
Although it is unclear at this stage whether the Court will ultimately conclude that substantive due process has been supplanted by specific provisions of the Bill of Rights, see Lewis v Sacramento Co, 98 F3d 434 (CA 9, 1996), cert gtd 520 US 1250; 117 S Ct 2406; 138 L Ed 2d 173 (1997), it is clear that the Court will not rely on substantive due process to sanction new remedies that duplicate the protections of specific constitutional provisions. Thus, in Graham v Connor, 490 US 386; 109 S Ct 1865; 104 L Ed 2d 443 (1989),
In Collins v City of Harker Heights, supra, the Court again underscored its reluctance to expand the doctrine of substantive due process, explaining:
As a general matter, the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended. . . . The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field. [Id. at 125.]16
In Albright v Oliver, supra at 268-271, the Court similarly declined to recognize a substantive right of
[w]here a particular amendment “provides an explicit textual source of constitutional protection” against a particular sort of government behavior, “that Amendment, not the more generalized notion of ‘substantive due process’ must be the guide for analyzing th[e] claims.” [Id. at 273, quoting Graham v Connor, supra at 395.]17
V
The contention that the Court should infer a remedy precluding retrial because of “the anxiety, stress, humiliation, and cost to the defendant of continual reprosecution where no new evidence exists”18 is a
VI
The relationship between federal and state governments and that of the state judiciary to its coordinate branches are obviously different. The common concern is the reach and contours of assertion of the power to declare “arbitrary” the conduct of government actors. While the focus of this Court‘s concern regarding expansive interpretation of our authority has been expressed in terms of separation of powers, rather than the powers reserved for the states under the Tenth Amendment, we have also cautiously responded to requests to recognize new remedies that would limit the authority of the executive or legislative branches of government. We declined the invitation to expand judicial authority in People v Mateo, 453 Mich 203, 211; 551 NW2d 891 (1996). There, we abstained from deciding whether the harmless error statute was a legislative attempt to supplant judicial authority. We refused to require compliance with sentencing guidelines because the Legislature had not mandated such compliance, People v Milbourn, 435 Mich 630, 656-657; 461 NW2d 1 (1990), and rejected the claim that circuit courts have the authority to nolle prosequi a case. People v Curtis, 389 Mich 698, 711; 209 NW2d 243 (1973). “[A]s long as jeopardy has not attached, or the statute of limitations not run, our
The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.
We hold that in dismissing this case in the circumstances here presented, the trial judge violated the doctrine of separation of powers.
The amorphous claim endorsed by the trial court and the Court of Appeals would inevitably call for courts to decide what policy of retrial is best for all the people of Michigan. In words equally appropriate to the relationship between the branches of state government and our citizens, Judge Easterbrooke has observed:
Which policy is best for the people . . . is a complex question, answered different ways at different times in this nation (and in dramatically different ways by different
nations today) — but it is a question about moral and efficient law enforcement for the people to debate and resolve. It is not a question whose only answer must be given by the judicial branch on the basis of “substantive due process.” [Mays v East St Louis, 123 F3d 999, 1003 (CA 7, 1997).]
Finally, absent a violation of the constitution or specific statutory authority, we are not persuaded that we have the authority or the wisdom to monitor the performance of the elected prosecutor. Nor has the case been made that harm to an interest not addressed by specific provisions of the Bill of Rights requires a new remedy. Whatever the reach of substantive due process, this claim does not approach the threshold.20 In this context, we find no historical, textual, or empirical foundation that requires inferring a new remedy from the penumbras of substantive due process.
VII
For the reasons stated, we hold that the reprosecution of this defendant is not a violation of the due process guarantees of the Michigan and United States Constitutions,
MALLETT, C.J., and BRICKLEY, WEAVER, and TAYLOR, JJ., concurred with BOYLE, J.
CAVANAGH, J. (dissenting). The majority‘s opinion today attempts to reach a conclusion that decides far more than the case before us. Instead of merely focusing on the task at hand, the majority seeks to effectively sound a death knell for the concept of substantive due process under
I
In People v Thompson, 424 Mich 118; 379 NW2d 49 (1985), we were presented with the question whether a retrial, following a mistrial because of deadlocked jury, which itself followed the reversal of a jury conviction for legal error, violated, inter alia, the defendant‘s due process rights. We found that, “[w]hile there may be cases in which repeated retrials after repeated jury deadlock might be so fundamentally unfair as to violate the due process guaranteed by
In this case, the trial court, relying on our guidance in Thompson, believed that such a case was before it, and dismissed the charges against the defendant following two successive trials that resulted in jury
II
Defendant was the owner of a sports equipment store in Garden City. After about six months in business, he increased his insurance coverage on the contents of the store from $50,000 to $75,000. Two weeks later, on June 27, 1990, there was a fire at the store. Defendant left the store at approximately 4:15 P.M. to visit relatives out of town. The fire was reported at 7:15 P.M., and investigators determined it had been smoldering for a couple of hours. Defendant‘s store suffered considerable damage, and adjacent businesses suffered smoke damage.
The investigation revealed no sign of illegal entry, and burn patterns of flammable liquid appeared on the floor in the area of the fire‘s origin. At both trials, the defendant pointed out that charcoal grills and
The defendant was charged with one count of burning of real property2 and one count of burning of insured property.3 Defendant has apparently been out on bond throughout the proceedings. Defendant‘s first trial occurred in June 1993 in Detroit Recorder‘s Court with Judge Andrea J. Ferrara presiding. The trial lasted over parts of ten days. The prosecution apparently produced five expert witnesses, and the defense produced two. The jury could not reach a unanimous verdict, with the jury split ten to two or eight to four in favor of conviction.
The defendant was retried in February 1994, with Judge Samuel A. Turner presiding. The trial lasted approximately the same amount of time as the first, and similar expert witnesses were called by both sides. The jury again deadlocked, this time six to six.
The prosecution announced its intention to again retry the defendant. The defendant moved to dismiss, arguing the likelihood of yet another hung jury and that he would suffer substantial prejudice if retried again.
The motion was heard August 5, 1994, before Recorder‘s Court Chief Judge Dalton A. Roberson.4 Defense counsel argued that witnesses’ memories
The prosecutor appealed in the Court of Appeals, which affirmed in a published opinion.5 A separate opinion agreed with the Court‘s underlying holding that a due process analysis applied in this situation, but dissented on its application to the instant facts.6
III
While the majority quotes a collection of familiar authority regarding the common woes that befall a defendant who is charged with a crime under any circumstances, no mention is made of the peculiar facts of this case. The defendant was charged with the crime commonly referred to as arson. There was no direct evidence linking him to the fire, and the only indirect evidence that stood for the proposition that a crime had even been committed was the burn patterns on the floor, which indicated the presence of flammable liquids. The defendant came forward with evidence that flammable liquids were routinely stored in this area. This set the stage for a battle of expert witnesses in the field of fire cause and origin.
This case turned entirely on expert testimony. If the jury believed the prosecution‘s experts, a crime had
It is here I see a difference between this case and those authorities cited by the majority. It is without dispute that one who is charged with a crime will incur substantial attorney costs. Those who cannot afford an attorney are, of course, provided with assigned counsel. But while the appointment of necessary defense experts is required by statute,8 given the majority‘s past hostility toward the appointment of expert witnesses for the defense,9 I would not fault the defendant for finding no comfort in the slight possibility of obtaining appointed experts.
As the Court said in Thompson, due process is violated where there is a “‘failure to observe that fundamental fairness essential to the very concept of justice.‘”10 Because I cannot subscribe to the majority‘s implication, throughout the dicta contained in part IV of its opinion, that such a concept has no place in the
IV
Likewise, the majority‘s effort regarding the purported applicability of the Fifth Amendment‘s guarantee against double jeopardy to exclude any due process protection strikes me as misguided. The protection provided in the guarantee against double jeopardy is twofold. “The Clause secures the defendant‘s interests in (1) the finality of judgments, and (2) protection against multiple prosecutions.” People v Anderson, 409 Mich 474, 482-483; 295 NW2d 482 (1980).
While this case certainly involves multiple prosecutions, the application of the due process analysis is not to the multiple prosecutions per se, but to the underlying result — will the defendant receive a fair trial? In this case, I am convinced that while yet another trial or two may eventually result in the defendant‘s conviction, there is far too great a likelihood that such a result will directly follow the defendant becoming financially unable to retain experts of sufficient qualifications and capabilities as to adequately advance his theory of the case. The end to the concept of trial by ordeal long predates the law of our state, and I find it to be fundamentally unfair to return to it here.
V
The majority, after misconstruing the underlying issue and attempting to insure that this Court never again faces another claim of a substantive due process in a criminal case, continues still further, finding
Again, I find this unpersuasive. The majority believes that “absent a violation of the constitution or specific statutory authority, we are not persuaded that we have the authority or the wisdom to monitor the performance of the elected prosecutor.” Ante at 533. While this Court has often made it clear that there are aspects of a prosecutor‘s role where the judicial branch has no call to intervene,12 I question the “wisdom” of the majority‘s statement.
Is the Court saying that, absent a specific violation of a specific constitutional provision, it has absolutely no right or duty to insure that a defendant receives a fair trial, or to prevent the prosecution from engaging in egregious conduct? It seems to me that, in actuality, our inherent constitutional authority to oversee the practice and procedure in our courts,
As we noted in Anderson, when only one of the interests protected by the Double Jeopardy Clause is implicated, we engage in a balancing of the defendant‘s and the state‘s interests. Id. at 483-484. Under the majority‘s analysis, it would seem that, because there is not a complete violation of a specific constitutional provision, we could not do such a thing. I cringe at the volume and breadth of precedent potentially impinged by such an analysis, and take solace only in the fact that it is included in repetitive and cumulative dicta.13
The majority cites People v Dawson, 431 Mich 234; 427 NW2d 886 (1988), as not allowing the prosecutor to “retry a defendant after having one full and fair opportunity at obtaining a conviction.” Ante at 525. I agree, and recall our unanimous decision in that case, which, in adopting this view, reasoned, “[o]therwise, the state could repeatedly prosecute persons for the same crime, transforming the trial process itself into a punishment and effectively punishing the accused without his having been adjudged guilty of an offense meriting punishment.” Dawson at 250-251. Where, as here, the prosecution had not one, but two “full and fair” opportunities to obtain a conviction, and, admittedly, came forward for a third effort with no new evidence, the line marking that transformation of the trial process into an ongoing punishment was crossed.
I would analyze this case in accordance with our past decisions, and, in this case, find that a third retrial would be so prejudicial to the defendant as to violate his right to due process on these particular, and unusual, facts. I find the remainder of the majority‘s opinion to be both unnecessary and unpersuasive. I dissent.
KELLY, J., concurred with CAVANAGH, J.
Notes
Second, to the extent those in the majority would dismiss this language as merely ill-advised dicta, an assertion I disagree with, I note they still insist on attempting to stretch the instant opinion to cover a variety of situations not before the Court. To the extent one credits the majority‘s disregard of nearly all the analysis included in part III of Thompson, to be at all consistent, one would have to seriously question the inclusion of at least parts IV through VI of the majority‘s opinion, all of which are unnecessary to the decision today, as it is already controlled by the analysis in parts II and III of the majority‘s opinion.
[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . .
No person shall be . . . deprived of life, liberty or property, without due process of law.
Recall, however, that the defendant also presented an alibi defense.In Witt, supra, the Tennessee Supreme Court barred retrial of a defendant whose indictments for first-degree murder were dismissed after three juries failed to reach unanimous verdicts. After finding that the constitutional right to due process was not involved, the court relied on the trial courts’ “inherent authority” to terminate prosecutions in the exercise of “sound judicial discretion.” Id. at 917.
Likewise, in Moriwake, supra, the Due Process Clause was not addressed when the court concluded that judges have inherent power to dismiss an indictment with prejudice over the objection of the prosecution where two mistrials were declared because the respective juries were unable to reach verdicts. Id. at 56.
Lastly, in Abbati, supra, the court did address the Due Process Clause, but rested its decision on the trial court‘s inherent right to dismiss an indictment with prejudice over the prosecutor‘s objection.
I pause to take issue with my sister BOYLE‘s favorite (mis)quote of People v Milbourn, 435 Mich 630, 656-657; 461 NW2d 1 (1990), stating that we refuse to require compliance with the sentencing guidelines because the Legislature has not mandated such compliance. If one merely, instead of reading only the sentence quoted, continues on to the following sentence and paragraph, it is apparent that the entire discussion concerned the fact that we, of course, have always allowed departures from the sentencing guidelines. We have, however, certainly required their use. See Administrative Order No. 1988-4. My sister continues in her confusion between the federal guidelines and Michigan‘s, at least as far as the concept of “require[d] compliance” is concerned.For an accounting of cases that have held that retrial after a properly declared mistrial did not violate substantive due process guarantees but would violate general principles of “fairness,” see Ingram, supra at 385 (making no reference to the Due Process Clause, the court concluded that the question was simply a matter of fair play); Witt, supra at 917 (after expressly stating that the Due Process Clause was not applicable to the case, the court held that requiring defendants to face juries with the continuing prospect of no verdict offends traditional notions of fair play and substantial justice); United States v Rossoff, 806 F Supp 200, 202 (CD Ill, 1992) (without explicitly relying on the Due Process Clause, the court held that an indictment may be dismissed with prejudice if a court determines that retrial is against the concept of fundamental fairness).
Before I depart from this section of the majority‘s opinion, I note the context of the lengthy quotation from Mays v East St Louis, 123 F3d 999, 1003 (CA 7, 1997), purported to be “equally appropriate to the relationship between the branches of state government and our citizens.” Ante at 532. While the quotation proclaims the virtue of majority rule over court decisions of substantive due process, Mays involved a claim of due process violations by injured and killed passengers in a vehicle that crashed while fleeing from a high-speed police pursuit. The context of the quotation is a discussion of weighing the dangers of a police pursuit with the dangers of letting criminals escape. I fail to see the parallel between this and anything decided today, other than perhaps an inclination, apparently shared by the majority, to assault the very concept of substantive due process on every ground imaginable.I also question the presence of People v Fisher, 220 Mich App 133; 559 NW2d 318 (1996). The majority‘s opinion takes “judicial notice” of the facts of this rather severe case. The defendant, a physician, was twice found guilty of the death of his wife, who was found wrapped in duct tape in their home. Both convictions were overturned. Two subsequent trials resulted in deadlocked juries. The defendant pleaded no contest just before a fifth trial. The opinion states that a holding for the defendant would mean that, arguably, all retrials where two mistrials have occurred would be prevented. Defendant did not argue this, neither the trial court nor the Court of Appeals held this, and I do not believe even the prosecution forecast this gloomy scenario, which would seem objectionable to all and would require as severe an abdication of any analysis of substantive due process as the majority undertakes today, but in the opposite direction. I certainly endorse no such thing.
Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims. [Graham, supra at 395.]
To support his position defendant relies on Green v United States, 355 US 184, 187-188; 78 S Ct 221; 2 L Ed 2d 199 (1957), in which the Supreme Court stated:
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
The rationale of Green is inapposite because Green involved not a case of continuing jeopardy, as is involved here, but rather a case of double jeopardy. Moreover, the Supreme Court expressly recognized that jeopardy does not bar a second trial under circumstances where a jury has failed to reach a verdict, stating:
At the same time jeopardy is not regarded as having come to an end so as to bar a second trial in those cases where “unforeseeable circumstances . . . arise during (the first) trial making its completion impossible, such as the failure of a jury to agree on a verdict.”
“Arrest is a public act that may seriously interfere with the defendant‘s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.” . . . The Sixth Amendment right to a speedy trial is thus not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges. . . . Certainly the knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life. [Id. at 8-9.]