Setting the Record Straight

I recently received an anonymous email criticizing Bill Schuette for certain decisions on the Court of Appeals. The email was so ludicrously awful, I almost deleted it immediately, but then I thought again -- it's an election year, and people who aren't familiar with the law might accept this as some sort of authority. Hence, we set the record straight here, by reposting my emailed response:

I join with Joan Fabiano in condemning this ridiculous attack on Bill Schuette. While everyone has a right to his or her opinion, no one has a right to be wrong on the facts. The anonymous person who attacked Judge Schuette for decisions in three cases involving criminal sentencings clearly does not understand the law or criminal procedure. These decisions show that Judge Schuette understands and applies the law as it is written. Moreover, the anonymous sender completely mischaracterizes the decisions themselves.

Case: People v. Olman, docket no. 268464 (2007)

Facts: The defendant was convicted of sexual assault on a four-year old girl and sentenced to 2-15 years in prison. He appealed his conviction and sentence.

Anonymous said: "Bill Schuette joined with a Granholm appointee (Servitto) and a Blanchard appointee (Jansen) in taking the rare view that the trial court judge actually abused his discretion in applying this sentence and sent the case back for re sentencing more in the range of "at most 12 months in jail, and probation" or a better explanation."

The Truth: The Court of Appeals panel affirmed the conviction and remanded for resentencing. They did not reduce the sentence or order it reduced.

Michigan law provides that a "court may depart from the appropriate sentence range established under the sentencing guidelines . . . if the court has a substantial and compelling reason for that departure and states on the record the reasons for departure." Also, "A substantial and compelling reason must be an objective and verifiable reason that keenly or irresistibly grabs the court’s attention, is of considerable worth in deciding the length of a sentence, and exists only in exceptional cases. . .'The court shall not base a departure on an offense characteristic or offender characteristic already taken into account in determining the appropriate sentence range unless the court finds from the facts contained in the court record, including the presentence investigation report, that the characteristic has been given inadequate or disproportionate weight.'

The trial court had exceeded the sentencing guidelines, and did so based on factors that were already counted in the sentencing. Effectively, the trial court was counting the same factors twice. Under the law, the Court of Appeals had no choice but to remand for resentencing. To do otherwise would have been to do exactly what liberals do -- make up decisions based on their own feelings, not the law.

Case: People v. Prophet, docket no. 278184 (2008)

Facts: The defendant was convicted of criminal sexual conduct. He was sentenced by the trial court, and the Court of Appeals vacated the sentence and remanded for resentencing. After remand, he was given the same sentence he had received originally and he appealed again. The Court of Appeals again remanded for resentencing.

Anonymous said: "Bill Schuette rejected the trial court sentence that was a slight 14-month upward departure from the guidelines because, though the Defendant violated "a position of authority and trust" it was not clear that the Defendant "defendant exercised control over the entire household" which would have allowed for the upward departure."

The Truth: Again, the sentence was a departure from the sentencing guidelines prescribed by law. Departures are allowed, but they must be supported by substantial and compelling reasons. Under Michigan law, "Such reasons must be objective and verifiable, must keenly or irresistibly grab the court’s attention, and must be of considerable worth in deciding the length of a sentence. They only exist in exceptional cases."

Here, the trial court cited the fact the victim was a child as support for the departure. This factor was already taken into account in scoring the offense under the guidelines and therefore could not be used again. As for the other factors used by the trial court, the appeals court said: "The trial court’s remaining reasons for departure were not objective and verifiable. Although the victim’s mother was supportive of defendant, there was no evidence that she reacted in this manner due to fear of or submission to defendant. Thus, it is not clear that defendant exercised control over the entire household. Moreover, substance abuse was simply never addressed and accordingly, its role or lack thereof is not verifiable. Since these two factors could not properly be relied upon to depart from the minimum guidelines range, the factors adequately taken into account by the guidelines could not be considered, and it is not clear whether the trial court would have departed from the guidelines absent these reasons, this case must therefore be remanded for resentencing."

Again, the appellate panel -- which included Brian Zahra, whose conservative credentials are unimpeachable -- could not have reached any other conclusion. The law dictated the result, not the other way around.

Case: People v. Givhan, docket no. 269500 (2007)

Facts: Defendant was convicted of felon-in-possession of a firearm, and felony-firearm. This was his second trial on these charges, the convictions arising from his first trial having been reversed. Following the second trial, he was given sentences greater than those imposed following his first convictions. The defendant appealed his sentence.

Anonymous said: "Bill Schuette again joined with a Granholm appointee (Servitto) and a Blanchard appointee (Jansen) in overturning the sentence because it was longer than the one given in the first trial and he didn't feel that the trial court judge [sic] enough reason for the second sentence being longer than the first."

The Truth: Michigan law provides that "A presumption of vindictiveness arises when a defendant is resentenced by the same judge and the second sentence imposed is longer than the first." The US Supreme Court has held: “Due process of law . . . requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” In order to overcome the presumption of vindictiveness, the trial judge must articulate reasons based on new information for imposing a longer sentence.

In this case, the trial court stated that it was relying on the defendant's history with firearms, but that history was not new. The trial court also said it was basing the increased sentence on the fact that the defendant fired his gun at a woman's house. There was no evidence of this, however. As the court noted: "The prosecutor concedes that no new information was available to the trial court at defendant’s sentencing following his second trial than was available following his first trial. The trial court’s assertion that defendant admitted firing shots at Diane’s house during his second trial was erroneous and therefore could not constitute new information justifying an increased sentence. Accordingly, the trial court’s reasoning did not overcome the presumption of vindictiveness."

This was another decision which complied in every respect with the law. These three cases were not judgment calls, where the decision could have gone one way or the other. The rule of law compelled the Court of Appeals to rule just as they did. To do otherwise would have violated the principles we all hold dear.

There may be reasons to oppose Bill Schuette, just as there may be reasons to oppose Mike Bishop. But the sort of disingenuous slop offered up by the anonymous poster is not reasoned, not logical, and not helpful. Whoever created this, shame on you. We need to condemn these tactics and remember what we are fighting for and why. Anonymous prevarications serve no purpose whatsoever other than to embarass the prevaricators and the candidates they support.