opinion

Reversal offers unsettling peek into small-town justice

Criminal defense lawyers across Michigan are buzzing about a recent state Supreme Court ruling overturning the murder conviction of a Jackson County man imprisoned for killing his infant son.

The 7-0 decision in People of Michigan v. Stevens is remarkable in several ways. For starters, it isn’t every day that the state’s highest court rules unanimously in favor of a convicted child killer.

But the majority opinion — just the second written by the state Supreme Court’s newest justice, Richard Bernstein, since he joined the court last January — also offers an unsettling glimpse of criminal justice as it is dispensed in small-town courtrooms all over Michigan, where judges who effectively enjoy life tenure run their courtrooms with little worry that either the appellate courts or the electorate will hold them accountable for their sins.

The story of Stevens’ first trial, and the trial judge responsible for that travesty, should make all of us think twice about the way we select the men and women who preside over Michigan’s 560 trial courts, and whether the appellate courts have the wherewithal, or the will, to make sure litigants get a fair trial wherever they live in the Great Lakes State.

A partisan referee

Adam Stevens was charged with first-degree murder and child abuse in August 2013 after his 3-month-old son, Kiam, died from a traumatic brain injury.

Stevens, who had been living with Kiam and his mother for about a year prior to the infant’s death, told jurors he had dropped Kiam on his head after tripping on a toy in the middle of the night.

But prosecutors contended that Stevens had caused the baby’s death deliberately, either by shaking him or slamming him against a hard object. A Jackson County jury acquitted Stevens of first-degree murder but convicted him of second-degree murder and child abuse after an eight-day trial before Jackson County Circuit Judge John McBain.

In their brief seeking to overturn the jury’s verdict, Stevens’ attorneys focused on the conduct and demeanor of McBain, a former Jackson County prosecuting attorney who was re-elected last November to his third six-year term. They complained that the presiding judge had behaved more like a second prosecutor than an impartial referee, repeatedly belittling the defendant and undermining an assistant medical examiner who testified on Steven’s behalf.

In his 30-page opinion for a unanimous court, Bernstein agreed, observing that McBain’s aggressive, sometimes hostile interrogation of defense witnesses had “exceeded the scope of permissive judicial questioning.”

“In several instances, the very words and sequence of questions employed by this judge projected incredulity, bias and hostility,” Bernstein wrote. “For example, the judge’s use of the phrase ‘that’s just your opinion’ when questioning (the defendant’s expert witness) obviously indicated the judge’s personal disbelief of the witness and encouraged the jury to disregard (the witness’) opinion.”

In another instance, Bernstein said, McBain “insinuated that (the defense’s expert witness) traveled unusually far just to testify for the defendant, arousing suspicion about his motives or why defense could not procure a local expert.”

Although Michigan law allows trial judges to question witnesses in order to clarify a confusing point or elicit relevant information, Bernstein and his fellow justices found that McBain’s “aggressive cross-examination” of defense witnesses, including the defendant himself, had served only to telegraph the judge’s skepticism and hostility.

McBain’s testy response when Stevens’ lawyer objected to one line of judicial interrogation (“If I have a question, I can ask a question, all right?” the judge snapped) “seemed to reflect an erroneous belief that his (McBain’s) power to question had no limitations,” Bernstein wrote.

Because it was “reasonably likely” that McBain’s conduct had “improperly influenced the jury by creating the appearance of advocacy or partiality against the defendant,” the court concluded, Stevens was entitled to “a new trial before a different judge.”

Looking the other way

As cataloged in Bernstein’s opinion, McBain’s efforts to tip the scales of justice in Stevens’ case were neither subtle nor infrequent. In the words of Michigan Court of Appeals Judge Deborah Servitto, the first appellate judge to call McBain out for his partisan conduct in the Stevens’ trial, “the trial court’s questioning in this matter went far beyond piercing the veil of impartiality — the judge virtually shredded the veil.”

So it’s curious to note that Judge Patrick Meter and Judge Michael Riordan, who rounded out the three-judge Court of Appeals panel that first heard Stevens’ appeal, were indifferent to McBain’s egregious misconduct in the trial. “While the trial court could have been more careful in its choice of words, the trial court did not unjustifiably arouse suspicion with its inquiries of the defense witnesses,” Meter and Riordan wrote in an unpublished majority opinion rejecting Stevens’ bid for a new trial last. “We find no error.”

In their unanimous decision reversing the 2-1 Court of Appeals ruling, Bernstein and his colleagues charitably suggest that Meter and Riordan were confused by the lack of “a clear line of precedent for establishing the appropriate test to determine whether a trial judge’s conduct pierced the veil of judicial impartiality.” But this is an unconvincing attempt to excuse the negligence of two appellate court judges who were as conspicuously partial to prosecutors as McBain.

In their April 2014 ruling denying Stevens’ appeal, Meter and Riordan repeatedly distorted the record of Stevens’ trial, erroneously suggesting that McBain’s aggressive cross-examination of defense witnesses had been “isolated” or balanced by similar questions the court posed to the prosecutions’ witnesses.

Even if the trial judge’s interrogation had crossed the line, Meter and Riordan added, Stevens’ attorneys had objected only once to the judge’s comments, suggesting that the court’s remarks “were not particularly prejudicial.” But state Supreme Court justices who reviewed the very same trial transcript concluded that Stevens’ attorney had “objected repeatedly and comprehensively” to McBain’s behavior, highlighting his growing anxiety about the judge’s partisan attitude.

Reading the Meter/Riordan opinion against the trial transcript, it’s impossible to escape the conclusion that the two appellate judges were so determined to uphold Stevens’ conviction that they ignored or downplayed even the most glaring evidence of McBain’s misconduct.

Bringing the fire

Back in Jackson County, meanwhile, McBain seems disinclined to see his public thrashing by the state’s highest court as an invitation to self-reflection. In an interview with the local newspaper this week, he speculated that justices wanted to articulate a new standard of judicial impartiality and used Stevens’ case as a vehicle to do so.

Attorneys who appear before him regularly describe McBain as a strong personality accustomed to using his court as a bully pulpit. Last year, after a Jackson County jury convicted Camia Gamet of murder in the stabbing death of her boyfriend, McBain expressed frustration that he was powerless to order her execution.

“I hope you die in prison,” he told the defendant in a televised sentencing hearing. “If this was a death penalty state, you’d be getting the chair.” He shrugged off critics who objected to the outburst, telling an interviewer: “Sometimes I think a judge needs a little fire.”

Perhaps the strangest episode in McBain’s career first came to the public’s attention in September 2012, when a Jackson Police sergeant discovered McBain wandering “disoriented and in need of some further assistance” in downtown Jackson. The judge was taken to the police department and released when a Jackson-area psychologist came to pick him up, according to the sergeant’s report.

No additional information about the encounter was ever made public, but McBain took a paid leave “for personal and medical reasons” the same month, remaining off the bench for 14 weeks before the State Court Administrative Office approved his return to work a few days before Christmas.

In a larger county, McBain’s erratic behavior on and off the bench might have made his re-election challenging. But the Jackson County Circuit Court boasts just four judges, only three of whom handle nearly all the county’s criminal cases. The risks a lawyer faces in taking on an incumbent judge in such circumstances are obvious: Lose, and you pretty much have to move your legal practice elsewhere.

When McBain ran for re-election last year, just 10 months after his unexplained leave of absence, no one opposed him.

Contact Brian Dickerson: 313-222-6584 or bdickerson@freepress.com