Our Voice: Prosecutor Can’t Have His Cake And Eat It Too

Working on an anonymous tip about drug activity, the police showed up at a Edwin Richmond’s house and took a couple trash bags he put out for the garbage man.  Inside one of the bags, they found mail addressed to Mr. Richmond and, more importantly, some plant stems that later turned out to be marijuana.  The police got a search warrant and entered Mr. Richmond’s home, finding more marijuana.

At trial, Mr. Richmond’s attorney attacked the basis for the warrant, stating that it was gained under false pretenses.  The Judge agreed and suppressed the marijuana evidence because it was found as the result of an illegal search.

At this point, the prosecutor had a few choices.  He could proceed to trial, but he’d have to do it without any drug evidence.  Of course, this option wouldn’t make any sense.  He could ask the Michigan Court of Appeals to review the Judge’s decision to suppress the evidence.  Because the case was still ongoing, the prosecutor would have to request an “interlocutory” appeal.  The Court of Appeals isn’t required to listen to these kinds of appeals, but decides whether it will based on how important the issue in question is.  In this case, the Judge’s decision was pretty important, obviously, which would greatly increase the prosecution’s odds of a getting it heard.

As a final option, the prosecutor could decide to dismiss the charges voluntarily.  And that’s what he did in this case.  He submitted a dismissal to the Judge, and it was signed, the charges dropped.

So that’s where it ended, right?


The prosecutor wanted to appeal the Judge’s decision, but he didn’t want to ask for an interlocutory appeal.  He wanted an appeal “of right”, which you can only get when a final order has been entered in a case.  An appeal “of right” means that the Court of Appeals has to hear it and can’t decide not to like they can with an “interlocutory” appeal.

The Court of Appeals did hear the issue.  They decided that the Judge was wrong and that the bad portions of the warrant could be carved out to leave the rest of it still good.  They ordered the case back down to the trial court to force Mr. Richmond to stand trial after all.  His attorney sent the case to the Michigan Supreme Court.

Fortunately for Mr. Richmond, the Michigan Supreme Court decided to hear his case.  After a review of what had happened, their decision was clear.  To quote Justice Cavanagh in the opinion he wrote on behalf of the court:

“Thus, in this case, the prosecution, not this Court, denied itself appellate review by obtaining dismissal of its own case and, therefore, rendering its appeal moot.”

In more straightforward terms, you can’t have your cake and eat it too.

Not everyone agrees with this decision.  Justice Corrigan was joined by two other Justices in her dissent against the findings of the majority.  Their argument was that it was unfair to force the prosecutor to ask for an “interlocutory” appeal when a decision is made by a court that makes his case impossible.

But those are the rules.  Whether the prosecutor likes it or not, they should be the first ones to play the game by the rules.  After all, that’s what they’re all about, isn’t it?  They prosecute people who break the rules of our society.  They hold us all to the letter of the law and drag us into court when we make a misstep.  As they are only too quick to point out in court to judge and jury alike, ignorance of the law is no excuse.

Considering all that, it’s not too much to ask that they play by the rules, is it?



1 Comment

Filed under Our Voice - Op/Ed

One response to “Our Voice: Prosecutor Can’t Have His Cake And Eat It Too

  1. Kim Robbins

    Interesting and surprising! Nice blog!

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