Opinion
No. 138577.
September 25, 2009.
Appeal from the reported below: 282 Mich App 379.
Actions on Applications for Leave to Appeal from the Court of Appeals.
Leave to Appeal Denied.
I would grant leave to appeal to address whether defendant was denied the right to counsel of his choice under United States v Gonzalez-Lopez. The trial court removed one of defendant's attorneys of choice on the ground that a conflict existed between the attorneys, and the removed attorney had filed a limited appearance. I would also address whether defendant was deprived of due process such that retrial should be barred. The prosecution acquiesced in the presentation of perjured testimony in order to conceal the identity of a confidential informant.
United States v Gonzalez-Lopez, 548 US 140 (2006).
False testimony was provided in this drug-related criminal prosecution, and the police, the assistant prosecutor, and trial court were apparently aware of this. Defendant's first trial, at which the false testimony was offered, ended in a mistrial. Subsequently, the trial court allowed the prosecutor to initiate a second criminal prosecution, which resulted in a guilty plea. After remand from this Court, the Court of Appeals affirmed, and defendant now appeals to this Court. Because this is a remarkable case, I would grant leave to appeal for the exclusive purpose of determining whether, pursuant to the double jeopardy clauses of the United States Constitution, US Const. Am V, and the Michigan Constitution, Const 1963, art 1, § 15, a second trial should have been barred.
CAVANAGH, J. I join the statement of Justice MARKMAN.
CORRIGAN, J. I am not participating because I may be a witness in a related case.