Opinion
ORDER
On order of the Court, the application for leave to appeal is considered, and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals and reinstate defendant's conviction. The prosecutor's final argument and rebuttal arguments were supported by the record. Therefore, there was no prosecutorial misconduct.
LEVIN, J., states as follows:
I would deny leave to appeal and dissent from the peremptory reversal of the Court of Appeals.
I
The majority states conclusorily:
The prosecutor's final argument and rebuttal arguments were supported by the record.
The majority does not reference anything in the record that supports those assertions.
II
The decision of the Court of Appeals to remand for a new trial because the prosecutor's arguments "exceeded the bounds of proper argument and were ... inflammatory" was not so devoid of reason as to justify peremptory reversal. The majority's decision to peremptorily reverse the decision of the Court of Appeals belittles its efforts in the disposition of this case, as reflected in its carefully written opinion, and deprives Darryl Kent Loyd and his counsel of an opportunity to fully brief and orally argue in support of the decision of the Court of Appeals.
Unpublished opinion per curiam, issued June 2, 1995 (Docket No. 150756), slip op. at 2.
Today's peremptory order reflects an increasingly common method of deciding cases, a method that does not provide safeguards against hasty and ill-considered decisions, a method that is unsafe. When this Court grants leave to appeal, there is an opportunity to educate the justices concerning the state of the record and the law through oral argument, as well as visually through briefs. A justice who may have missed a significant point of law or fact on perusal of the materials considered before voting for peremptory reversal might be enlightened and persuaded in the course of oral argument.
Also lost, when this Court acts without plenary consideration, is the opportunity for conference discussion after oral argument.
Under the Court's rules of internal procedure, also lost in this case was an opportunity for conference discussion after circulation of the peremptory order and this dissenting statement.
Peremptory disposition, without plenary consideration, full briefing, oral argument, and an opportunity for the profession to file briefs as amici curiae, should be reserved for cases in which the law is settled and factual assessment is not required. In the instant case, factual and legal assessment is required.
People v. Wright, 439 Mich. 914, 914-915, 479 N.W.2d 631 (1992) (Levin, J., dissenting); Roek v. Chippewa Valley Bd. of Ed., 430 Mich. 314, 322, 422 N.W.2d 680 (1988) (Levin, J., separate opinion); Grames v. Amerisure Ins. Co., 434 Mich. 867, 868-875, 451 N.W.2d 304 (1990) (Levin, J., dissenting); People v. Little, 434 Mich. 752, 769-770, 456 N.W.2d 237 (1990) (Levin, J., dissenting); People v. Wrenn, 434 Mich. 885, 885-886, 452 N.W.2d 469 (1990) (Levin, J., dissenting); Harkins v. Northwest Activity Center, Inc., 434 Mich. 896, 899, 453 N.W.2d 677 (1990) (Levin, J., dissenting); Dep't. of Social Services v. American Commercial Liability Ins. Co., 435 Mich. 508, 515, 460 N.W.2d 194 (1990) (Levin, J., separate opinion); Yahr v. Garcia, 436 Mich. 872, 872-873, 461 N.W.2d 363 (1990) (Levin, J., dissenting); Universal Underwriters Ins. Co. v. Vallejo, 436 Mich. 873, 873-874, 461 N.W.2d 364 (1990) (Levin, J., dissenting); People v. Stephens, 437 Mich. 903, 903-910, 465 N.W.2d 561 (1991) (Levin, J., dissenting); People v. Berkey, 437 Mich. 40, 54, 467 N.W.2d 6 (1991) (Levin, J., dissenting); Turner v. Washtenaw County Rd. Comm., 437 Mich. 35, 38-39, 467 N.W.2d 4 (1991) (Levin, J., separate opinion); Lepior v. Venice Twp., 437 Mich. 955, 956-966, 467 N.W.2d 811 (1991) (Levin, J., dissenting); Rochester Hills v. Southeastern Oakland County Resource Recovery Authority, 440 Mich. 852, 852-856, 486 N.W.2d 678 (1992) (Levin, J., dissenting); In re Reinstatement of Eston (Grievance Administrator v. Eston ), 440 Mich. 1205, 1205-1207, 487 N.W.2d 755 (1992) (Levin, J., dissenting); In re Reinstatement of Callanan, 440 Mich. 1207, 1207-1209, 487 N.W.2d 750 (1992) (Levin, J., dissenting); McFadden v. Monroe Civil Service Comm., 440 Mich. 890, 890-891, 487 N.W.2d 763 (1992) (Levin, J., dissenting); Holly Twp v. Dep't of Natural Resources (Holly Twp. v. Holly Disposal, Inc.), 440 Mich. 891, 891-893, 487 N.W.2d 753 (1992) (Levin, J., dissenting); Marzonie v. A.C.I.A., 441 Mich. 522, 535-539, 495 N.W.2d 788 (1992) (Levin, J., dissenting); People v. Waleed, 441 Mich. 902, 902-903, 496 N.W.2d 284 (1992) (Levin, J., dissenting); People v. Hardison, 441 Mich. 913, 914-916, 494 N.W.2d 740 (1993) (Levin, J., dissenting); People v. Justice, 441 Mich. 916, 917-919, 495 N.W.2d 376 (1993) (Levin, J., dissenting); People v. LaClear, 442 Mich. 867, 867-871, 497 N.W.2d 490 (1993) (Levin, J., dissenting); Auto-Owners Ins. Co. v. City of Clare, 446 Mich. 1, 16-18, 521 N.W.2d 480 (1994) (Levin, J., dissenting); Weisgerber v. Ann Arbor Center for the Family, 447 Mich. 963, 964-969, 521 N.W.2d 601 (1994) (Levin, J., dissenting); Howard v. White, 447 Mich. 395, 405-410, 523 N.W.2d 220 (1994) (Levin, J., dissenting).
III
This Court, once again violating the strictures of Const.1963, art. 6, § 6, fails to provide "a concise statement of the facts and reasons" for its decision.
IV
The opinion of the Court of Appeals shows that the issue is important, novel, the law is not settled, and peremptory disposition is not appropriate.
Today's order is no less a decision of this Court because the opinion of the Court of Appeals is not published in the Michigan Appeals Reports.
This Court has an obligation to make readily available to the bench and bar what it has decided and, under the constitutional provision, the reasons therefor. When this Court reverses an unpublished opinion of the Court of Appeals without stating, except conclusorily, the reasons and without publishing both the majority and any dissenting opinion, the reasons for this Court's decision are not readily available. Lawyers and judges must then resort to the unofficial reporting services to determine what this Court has decided. The decisions of this Court and the reasons therefor should be readily available in the official Michigan Reports (Michigan Appeals Reports ) published under the auspices of this Court.
Michigan Lawyers Weekly describes the opinion of the Court of Appeals as follows:
This Court has over the last two years in effect depublished opinions of the Court of Appeals to eliminate precedent without providing, again contrary to the constitutional imperative, reasons therefor . Now the Court creates precedent without publishing the reasons in a source readily available to the profession. This is "no way to run the railroad," and is contrary to the reasons for publishing all the work of this Court in the official Michigan Reports.
Bernthal v. Aetna Casualtys&sSurety Co., 444 Mich. 1216, 514 N.W.2d 465 (1994), and subsequent cases.
Peremptory disposition is not appropriate.
MICHAEL F. CAVANAGH, J., concurs with the statement of LEVIN, J.
See Schweiker v. Hansen, 450 U.S. 785, 791, 101 S.Ct. 1468, 1472, 67 L.Ed.2d 685 (1981) (Marshall, J., dissenting) ("A summary reversal is a rare disposition, usually reserved by this Court for situations in which the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error"); Leis v. Flynt, 439 U.S. 438, 457-458, 99 S.Ct. 698, 709, 58 L.Ed.2d 717 (1979) (Stevens, J., dissenting) ("Summary reversal 'should be reserved for palpably clear cases of ... error.' Eaton v. Tulsa, 415 U.S. 697, 707 [94 S.Ct. 1228, 1234, 39 L.Ed.2d 693 (1994) ] [Rehnquist, J., dissenting]").
Where the prosecutor's arguments that 1) the defense expert could be bought and had previously lied under oath and 2) the child's death was the result of a pattern of child abuse were not supported by the evidence, defendant was denied a fair trial.
Defendant was convicted of second-degree murder of his 10-month old child. Defendant claimed the child slipped out of his arms in the bathtub during a shower and hit his head. Defendant's expert testified that the child's head injury was consistent with defendant's explanation. The prosecutor argued that the death was the culmination of a pattern of child abuse. The expert for the prosecution testified that the child's head injury was inconsistent with a fall.
Defendant appeals, claiming he was denied a fair trial. We agree. During the prosecutor's closing argument and rebuttal, the prosecutor argued that defendant had a history of repeated abuse. However, there was no evidence to support this statement. The prosecutor also argued that the defense expert could be bought and that the expert had previously lied under oath. Both statements were unsupported by evidence and were extremely prejudicial.
This case was a battle of experts. In these types of cases, "it is important to protect the defendant's expert witnesses against prosecutorial misconduct designed to impugn their credibility ... The prosecutor's comments to discredit the sole defense expert in this case, combined with the unsupported theory that [the child's] death was the culmination of defendant's pattern of abuse, were so egregious as to have denied defendant a fair trial." [Prosecutor's Misconduct-Denial of Fair Trial, Michigan Lawyers Weekly, June 12, 1995, p 31A.]