Opinion
No. 105176.
April 12, 1996.
Leave to Appeal Denied April 12, 1996:
I concur in the statement of Justice LEVIN.
Court of Appeals No. 188396.
I would grant leave to appeal.
I
The question is again whether it is violative of the Equal Protection Clause to deny indigent defendants transcripts of the jury voir dire. The same question was presented in People v Earl Walker, 450 Mich. 917 (1995), in which this Court denied leave to appeal, and Justice CAVANAGH and I dissented from the denial. The applications in this case and in People v LaFave, No. 105222, again highlight the constitutional infirmity of recently adopted MCR 6.425(F)(2)(a)(i).
II
Piper was convicted of two counts of CSC I and sentenced to concurrent terms of imprisonment of ten to twenty-five years. Piper requested a copy of the voir dire transcripts for use by his new counsel in the preparation of his appeal. In requesting the transcripts, Piper noted that he was appealing an emotionally sensitive charge of criminal sexual conduct with a small child, and jury selection could therefore be critical. He also noted that he is a Native American, convicted by an all white jury, raising concerns of a possible constitutional infirmity in the selection of the jury. The trial court denied the request.
III
LaFave was charged with involuntary manslaughter in connection with the death of a "shaken baby." He was convicted of involuntary manslaughter on November 10, 1994, and was sentenced to 3-1/2 to 15 years' imprisonment.
LaFave's appellate lawyer made the following request for transcripts of the voir dire:
Pursuant to MCR 6.425(F)(2)(a)(i), the good cause for our request is that this case concerns an alleged "shaken baby" death. It is our understanding that this Court conducted the voir dire. In order to effectively represent Mr. LaFave on appeal, we respectfully request an opportunity to review the scope of the Court's questioning on this sensitive area in light of the standards set forth in People v Tyburski, 445 Mich. 606 (1994).
The trial court found that there was not good cause:
I [the trial court] have carefully reviewed the case cited in your letter, [ Tyburski]. Upon reflecting on my voir dire during the jury selection in light of that case, I am confident that I did indeed adequately question the jurors regarding their potential bias; that I elicited enough information so that, in my mind, I was confident in the jurors' ability to be impartial; and most importantly, that Mr LaFave was guaranteed his constitutional right to a fair and impartial jury.
Piper's and LaFave's appeals of the substantive issues remain pending before the Court of Appeals. They seek leave to appeal from the denial of voir dire transcripts.
IV
In Griffin v Illinois, 351 U.S. 12, 19 (1956), the United States Supreme Court ruled that the Equal Protection and Due Process Clauses require states to provide indigent defendants with trial transcripts to prepare an appeal:
Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.
Following Griffin, the Court held that indigents have a right to transcripts of postconviction proceedings, preliminary hearings, habeas corpus proceedings, and nonfelony trials. Although the Court has not ruled specifically respecting voir dire transcripts, voir dire is also a vital stage of the trial. Stockler v Garratt, 974 F.2d 730, 732 (CA 6, 1992).
Long v Dist Court of Iowa, 385 U.S. 192 (1966).
Roberts v LaVallee, 389 U.S. 40 (1967).
Gardner v California, 393 U.S. 367 (1969).
Mayer v Chicago, 404 U.S. 189 (1971).
The Court said that Griffin guarantees a `record of sufficient completeness' to permit proper consideration of [a defendant's] claims." Although Griffin does not require that a verbatim transcript be produced in every case, the circumstances in which no transcript need be provided are the exception:
Id. at 194.
The only cases that have rejected indigent defendants' claims to transcripts have done so either because an adequate alternative was available but not used, Britt v North Carolina, 404 U.S. 226 (1971), or because the request was plainly frivolous and a prior opportunity to obtain a transcript was waived, United States v MacCollom, 426 U.S. 317 (1976). [ Bounds v Smith, 430 U.S. 817, 822, n 8 (1977).]
Neither exception applies to this case, where no alternative is available and the case is on direct review.
Recent activity by the United States Supreme Court underlines the constitutional magnitude of the jury selection process. JEB v Alabama ex rel TB, 511 U.S. 127 (1994). Similarly, commentators have noted the importance of voir dire.
Jones, Voir dire and jury selection, 22 Trial 60, 66 (Sept, 1986); Alschuler, The supreme court and the jury: Voir dire, peremptory challenges, and the review of jury verdicts, 56 U Chi L R 153, 160-161 (1989).
In Michigan, appellate counsel for an indigent defendant is generally a lawyer other than trial counsel. Considering the request for a complete transcript, the United States Supreme Court commented on the enhanced risk in shielding appellate counsel from a complete record of the proceedings:
But when, as here, new counsel represents the indigent on appeal, how can he faithfully discharge the obligation which the court has placed on him unless he can read the entire transcript? His duty may possibly not be discharged if he is allowed less than that. [ Hardy v United States, 375 U.S. 277, 279-280 (1964).]
Many substantial errors will remain unknown to appellate counsel. An exception where the defendant "shows good cause" is not only pragmatically ineffective — trial courts ordinarily do not conclude that they erred — it is also constitutionally deficient. Eskridge v Washington State Prison Bd, 357 U.S. 214 (1958).
The conclusion of the trial judge that there was no reversible error in the trial cannot be an adequate substitute for the right to full appellate review available to all defendants in Washington who can afford the expense of a transcript. [ Id. at 216.]
LaFave's case is illustrative. His appellate counsel was denied access to the voir dire transcripts because the very same judge who presided during jury selection was "confident" he had performed adequately.
If Piper's trial counsel's performance during jury selection was constitutionally deficient, or if the prosecutor struck all Native Americans and racial minorities from the venire, this could not be appealed because Piper's appellate counsel would have no knowledge — and no way of learning — what had occurred.
The constitution does not require perfect parity in the distribution of justice across economic classes. Even if the constitution does not require that every assistance available to the wealthy that holds the potential to reveal an error be provided freely to the poor, a record of jury voir dire is as critical to a meaningful appeal as a transcript of a preliminary or post-conviction hearing.
The following appears in the adopting order preceding the Michigan Rules of Evidence:
In adopting these rules, the Court should not be understood as foreclosing consideration of a challenge to the wisdom, validity or meaning of a rule when a question is brought to the Court judicially or by a proposal for a change in a rule. See, e.g., Meek v Centre County Banking Co, 268 U.S. 426; 45 S Ct 560; 69 L Ed 1028 (1925), and Mississippi Publishing Corp v Murphree, 326 U.S. 438; 66 S Ct 242; 90 L Ed 185 (1946). While these rules are binding on Michigan courts, the Court does not intend to preclude evidentiary objection in the trial court based on a challenge to the wisdom, validity or meaning of a rule and development of a separate record so as to properly present the challenge for review by this Court. [ 402 Mich lxxxviii.]
The principles there stated apply with equal force to the Michigan Court Rules.