Elisha Anderson

Detroit Free Press

The charge of careless discharge causing injury or death%2C a misdemeanor%2C remains before the jury

A Detroit police officer accused in the fatal shooting of 7-year-old Aiyana Stanley-Jones walked into a Detroit courtroom Friday facing a felony and misdemeanor charge.

Officer Joseph Weekley walked out of the courtroom with just the misdemeanor charge after Wayne County Circuit Judge Cynthia Gray Hathaway dismissed the involuntary manslaughter charge against him. Weekley still is charged with careless discharge of a firearm causing death in the May 2010 shooting, which happened as police executed a search warrant for a murder suspect.

Hathaway then adjourned the proceedings to give the Court of Appeals a chance to weigh in. That court issued an order later Friday, saying it plans to review the judge's decision.

After Hathaway's dismissal, attorneys for both sides made their arguments in court documents as to what should happen next.

Steve Fishman, Weekley's attorney, asked the Court of Appeals to refer the case back to the trial court on the misdemeanor count only.

"The United States Supreme Court has clearly stated that the trial judge's ruling cannot be appealed and that retrial on that count is prohibited by the Double Jeopardy clause of the United States Constitution," his filing said.

He cited an earlier U.S. Supreme case, Evans v. Michigan, and wrote that Hathaway verbally granted his request to dismiss the felony.

But prosecutors said the trial court made a legal error granting the defense's motion and said the decision is not final because the case was stayed, which temporarily stopped the trial.

"The people are asking this court to either grant leave to appeal, or reverse Judge Hathaway's order … and order that the charge of involuntary manslaughter be reinstated," prosecutors wrote in their filing.

University of Michigan law professor David Moran was involved in the case Fishman cited and said the two cases are similar, but not the same.

In the Evans case, the judge ruled there was insufficient evidence in the case and the decision was final. But in the Weekley case, Hathaway immediately stayed her decision.

"The requirement for the double jeopardy clause to kick in is that the judge has to make a final decision, or the jury, acquitting the defendant," Moran said.

In court today, Fishman said in order to convict on the involuntary manslaughter charge, the jury must find Weekley was grossly negligent, which means "willfully disregarding the results to others that might follow from an act or failure to act."

He said "willfully" means that he knowingly created the danger and intended to cause injury. No credible evidence was presented that Weekley did either of those things, Fishman argued.

Assistant Wayne County Prosecutor Robert Moran, who is not related to David Moran, fired back saying he never argued that Weekley intended to kill the girl.

Moran said he is charged with proving three elements of gross negligence in this case including: Weekley knew ordinary care was required to avoid injury to another; he could have avoided injury to another by using ordinary care; and Weekley failed to use ordinary care when serious injury was apparent.

Moran said Weekley could have avoided injury if he followed his training.

Hathaway said there seems to be a conflict between one part of the jury instruction and another part.

"I don't see the evidence that the defendant willfully disregarded the results to others," she said. "The entire trial has basically been about the carelessness of the defendant based on his skills."

Hathaway said with the conflict, if she was going to err, she was going to err on the side of the defense.

"I'm going to grant the motion for dismissing Count 1," she said.

Weekley, 38, was charged with involuntary manslaughter and careless discharge of a firearm causing death, a misdemeanor in the death of Aiyana.

This could be a precedent setting case if the Court of Appeals hears the case and reverses the judge's decision, David Moran said.

"If the judge sufficiently articulated her reasoning, it is highly unlikely that an appellate court would substitute its judgment," Richard Krisciunas, a University of Detroit Mercy law professor said.

But, he said, it's possible that an appellate court could disagree and reinstate the charge.

The prosecution said Thursday they have no more witnesses to call in Weekley's trial. Weekley is on paid leave with the police force.

Weekley will not testify, Fishman said Friday. Weekley testified during his first trial that ended with a hung jury in June 2013.

After a mistrial was declared, a juror, who asked not to be identified, told the Free Press what happened as the panel tried to come to a decision.

One of sticking points in deliberations at that trial was the word "willful."

Some of the jurors thought the involuntary manslaughter charge was appropriate, but many didn't because of the willfulness that's implied, the juror told the Free Press last year.

Throughout this trial, the defense has maintained Aiyana's grandmother, Mertilla Jones, had contact with Weekley's gun and it discharged.

Jones disputes that and told the jury, earlier this week, that she didn't reach up and touch an officer.

During an outburst last week, she said, sobbing, "You know I never touched you, Mr. Weekley."

Roland Lawrence, chairman for Justice for Aiyana Jones Committee, released a statement this afternoon criticizing the judge's decision.

"Not only is Judge Hathaway circumventing the role of the jury, she has totally lost sight of why Weekley is on trial," the statement said, in part.

Weekley, a member of the Special Response Team, was the first team member to enter a home on Lillibridge when police executed a search warrant on May 16, 2010. The raid was being filmed by a crew on the scene to gather footage for a cable television show.

Jurors are expected to return to the courthouse Monday morning.

Contact Elisha Anderson: eanderson@freepress.com