Opinion
18-cr-20085
12-16-2021
UNITED STATES OF AMERICA, Plaintiff, v. MICHAEL DAVIS-D-2, Defendant.
ORDER DENYING DEFENDANT MICHAEL DAVISMOTION TO DISMISS AND TO JOIN IN MOTION TO DISMISS FILED BY DEFENDANT DAVID ALLEN (ECF NO. 298)
Co-Defendant David Allen subsequently joined in this Motion. (ECF No. 300.)
PAUL D. BORMAN UNITED STATES DISTRICT JUDGE
Defendant Michael Davis filed this Motion to Dismiss on December 10, 2021.
Defendant Davis acknowledges "that stipulated orders of continuance have been entered to comply with the Speedy Trial Act, 18 U.S.C. § 3161, et seq., but with the legitimate expectation that the Defendant would be afforded a fair trial required by the Sixth Amendment." (ECF No. 298, at PageID.1589-1590.)
Defendant Davis brief sets forth, and does not object to, the stipulated speedy trial waiver orders in detail, entered from 2018-2022. (Id. at PageID.1590.) Defendant Davis adds: "Those [Orders] entered on June 30, 2020 and after incorporate reasons for delay relating to the COVID-19 pandemic." (Id.) The Court notes that counsel for Defendant Davis, Harold Gurewitz, and counsel for Defendant David Allen both signed the August 5, 2021 Stipulation and Order Excluding Delay Under the Speedy Trial Act. (ECF No. 77.)
Defendant Davis' claim in this Motion focuses on his claim relative to his Sixth Amendment constitutional right to speedy trial, discussed in the seminal Supreme Court decision in Barker v. Wingo, 407 U.S. 514 (1972). Barker set forth these four factors as a balancing test for a claim under this constitutional right:
1. Length of the delay.
2. Reason for the delay.
3. Defendant's responsibility to assert the right.
4. Prejudice to the defendant.
1. Defendant contends that the 47-month delay is presumptively prejudicial, but provides no specific facts to support prejudice. (Id. at PageID.1594.)
2. As to reasons for the delay, Defendant Davis notes that the initial delay "occurred, of course, because of the nature of the capital charges brought against the Defendant requiring a specialized investigation relating to the potential of death penalty authorization" which "came to a conclusion on August 26, 2019 when the government filed its Notice of a decision by the Attorney General not to seek the death penalty as to any defendant." (Id. at PageID.1594.)
Delay also occurred when Defendant Davis sought and received new counsel. New counsel Harold Gurewitz proceeded to file three pretrial motions, one of which required an in-Court evidentiary hearing. In-court hearings were not permitted in this Court until June 2021 because of the Court's closure due to the COVID-19 pandemic. After the extensive in-court hearing, the Court required post-hearing briefing. The Court denied the Motion to Suppress on August 6, 2021. (Id. at PageID.l595.)
3. The third Barker factor, Defendant's failure to timely assert his right to speedy trial, is explained away by Defendant as follows: he had a "reasonable expectation that delays during the pandemic would serve to protect his constitutional right to a fair trial, one at which he would be assured his right to pick a fair and impartial jury and to confront witnesses—without infringement of masking and social distancing." (Id. at PageID.1595.) This issue will be dealt with infra in number 4, as part of his prejudice claim.
4. As to prejudice to the Defendant, Defendant Davis proceeds to the core of his argument—that the trial masking and social distancing COVID procedures imposed by the United States District Court significantly and prejudicially diminish his rights to a fair trial. (Id.)
Defendant asserts that (1) the jury trial will be interrupted by COVID-related infections of participants. Defendant assumes, generally, that there will be a need for COVID-19 adjournments if a juror or participant tests positive for COVID-19. (Id. at PageID.1599) and (2) the masking requirements will prevent Defendant from having a full and fair opportunity to assess potential jurors during voir dire, and thereafter seated juror reactions of facial expressions throughout the proceedings. (Id. at PageID.1597.) Defendant contends that "social distancing requirements are also liable to make it extremely difficult for Defendant Davis to effectively view the jury and jurors' reactions during trial." (Id. at PageID.1598.)
Defendant also contends that the COVID-19 pandemic will prevent selecting a jury composed of a meaningful cross-section of the community—in particular, there will be underrepresentation of minorities and COVID-conscious people, producing jurors more likely to convict. (Id. at PageID. 1601-02.)
DISCUSSION
Defendant Davis' Motion to Dismiss filed on December 10, 2021 does not discuss, or even cite to, two relevant recent decisions; one from this district, and one other from the United States Court of Appeals for the Sixth Circuit, that discuss similar defendant assertions, both of which rejected those arguments: United States v. Jay Schwartz, Criminal Case No. 19-20451 (E.D. Mich. Nov. 12, 2021) (Cleland, J); United States v. Smith, 2021 WL 5567267 (6th Cir. Nov. 29, 2021). The Court finds both decisions to be highly relevant and instructive.
Judge Cleland's opinion in United States v. Jay Schwartz cites the District Court's Administrative Order Nos. 20-AO-021; 20-AO-027 suspending jury trials, and then notes the restricted reopening of the Courthouse to jury trials with requirements for everyone who enters the Courthouse to wear facemasks, complete a health survey and social distance.
FACEMASKS
In United States v. Schwartz, at page 2, Judge Cleland notes that testifying witnesses will not wear a facemask, but a clear face shield to ensure that all have a clear view of their face. (Id. at fh. 2.) So too in the instant case.
Judge Cleland's courtroom contained clear plexiglass shields. So too in the instant case.
This Court is attaching Judge Cleland's opinion as Exhibit A.
SOCIAL DISTANCING
This Court will require social distancing, but as Judge Cleland noted: "The court sees no indication that the Constitution guarantees a right permitting a Defendant to observe all jurors' reactions simultaneously" (Id. at p. 5.) This Court concurs.
COVID-19 ADJOURNMENT
This Court finds, as did Judge Cleland, that Defendant's presumption that COVID-19 issues will arise during the trial is speculative, although it is possible, but this Court's implementation of social distancing and masking requirements lessen Defendant's speculative concerns.
FAIR CROSS-SECTION OF THE COMMUNITY
Defendant Schwartz's citation to two out-of-circuit district court decisions did not persuade Judge Cleland, and do not persuade this Court. As Judge Cleland noted: "Defendant has provided merely speculation that the composition of his jury may be materially changed by the ongoing pandemic." (Id. at p. 8.)
Judge Cleland concluded that because "Defendant has failed to plausibly lay out all the elements required for a jury composition claim, the court also rejects this argument." In the instant case, although Defendant Davis raises potential jury composition issues, this Court will deal with this issue during the jury selection process at the trial.
Judge Cleland concluded that trial should go forward as scheduled, as defendant's objection lacked merit. In fact, the case proceeded to trial and to verdict.
The recent decision of the United States Court of Appeals for the Sixth Circuit filed on November 29, 2021, before Defendant Davis' December 10, 2021 Motion, supported a district court's denial of the defendant's claims similar to Defendant Davis' Motion. United States v. Smith, 2021 WL 5567267 (6th Cir. Nov. 29, 2021).
This Court is attaching the Sixth Circuit opinion as Exhibit B.
In Smith, the Sixth Circuit rejected the defendant's claim that "requiring jurors to wear face masks over their noses and mouths violated his right to a fair trial because it prevented him from seeing jurors' full facial expressions during opening statements, closing arguments, and witness testimony." (Id. at p. 1.)
The Sixth Circuit opinion, authored by Judge Bernice Bouie Donald, started "with the axiomatic principal that a defendant is entitled to 'a fair trial, not a perfect one, because an error-free perfect trial is not humanly possible.' United States v. Segines, 17 F.3d 847, 851 (6th Cir. 1994)." Fast forward to 2021, Judge Donald wrote: "This principal applies with even greater force during a public health emergency, where protective measures such as plexiglass partitioners, disposable microphones, face masks, and social distancing upend traditional notions of what a 'normal' trial looks like. However, different does not necessarily mean unfair." (Id. at p. 1.)
The Sixth Circuit pointed out that "trial courts have inherent authority, and even 'grave responsibility' to determine what safety measures are necessary to protect the judge, court, personnel, the parties, the jurors, and the audience in and around the courtroom." (Id. at p. 2.) This Court agrees, and will exercise its inherent authority to determine necessary safety measures throughout the trial.
CONCLUSION
Accordingly, given this Court's agreement with the Sixth Circuit Smith decision and Judge Cleland's Schwartz decision, and for the reasons stated, supra, the Court DENIES Defendant Michael Davis' Motion to Dismiss due to violations of his Sixth Amendment right to a fair and public trial, and violations of the Speedy Trial Act.
SO ORDERED.