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Once a winner on appeal, good luck with that now by Michael B. Skinner · Friday May 1, 2009 2:17 pm PERMALINK In People v Anderson, the Court of Appeals found that it was not error for the trial court to admit drug profile evidence against the defendant. This was an unpreserved error, but the drug profile evidence has been a tempting carrot outside defendant-appellants' grasp for years now. In People v Murray, 234 Mich App 46 (1999), the court held that it was reversible error to admit drug profile evidence, and defendants took this holding seriously and have been raising the issue ever since, with little success. In Anderson, Judge Gleicher penned a concurrence in which she came close to finding that the admission of the drug profile evidence was reversible error, but she ultimately couldn't get past all the other evidence against the defendant and found the evidence harmless. She also criticized defendant's appellate counsel for not properly preserving the ineffective assistance issue of trial counsel's failure to object to the drug profile evidence by asking for a remand for an evidentiary hearing on the issue. She goes on to find that, even on the bare record she can't see any reason why trial counsel would not object. In addition, it is not clear to me that appellate counsel even raised an ineffective assistance claim. It looks to me like it might have been raised by the defendant himself in a pro per brief that the rules allow defendants to file when they have an appointed counsel (a "standard 4 brief" in Michiganese). It could be that I am wrong and the lawyer did raise the issue but didn't take the proper steps to preserve it by asking for an evidentiary hearing (as is necessary in Michigan). Or maybe she is saying that the lawyer didn't raise the issue at all and should have. Either way, it is unpleasant as a lawyer to be called out in that manner in an opinion. | |
