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  • STATE OF MICHIGAN IN THE MICHIGAN SUPREME COURT PEOPLE OF THE STATE OF MICHIGAN, Michigan Supreme Court No. 154445 Plaintiff-Appellee, Court of Appeals No. 323741 Wayne County No. 14-001748-FC JOHNNY RAY KENNEDY, Defendant-Appellant.

    BRIEF OF AMICI CURIAE SHAWN BROWN, TERRY CEASOR,

    JUWAN DEERING, MILTON LEMONS & KARL VINSON

    Michigan Innocence Clinic

    University of Michigan Law School Imran J. Syed (P75415)

    David A. Moran (P45353) Rebecca L. Hahn (P80555)

    COUNSEL FOR AMICI CURIAE 701 S. State Street

    Ann Arbor, MI 48109 (734) 763-9353

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    TABLE OF CONTENTS

    TABLE OF AUTHORITIES .............................................................................................. ii

    INTEREST OF AMICI CURIAE .........................................................................................1

    INTRODUCTION ...............................................................................................................2

    ARGUMENT .......................................................................................................................3

    I. The Majority Opinion Below Turned On Two Cases That Were Wrong When Decided, And Have Since Been Completely Repudiated .....3 A. People v Tanner ..................................................................................3 B. People v Leonard ................................................................................4

    II. The Court Should Disregard The State’s Argument That A Defense

    Expert Would Not Have Mattered In This Case; Such Convenient Hindsight Assessments Have Been Repudiated Time And Again, And Cases Based In Forensic Sciences Are Too Complex To Dismiss The Expert Issue So Flippantly ...........................................................................7 A. Forensic Evidence Is Never As Simple As It Seems In Hindsight .....7 B. The DNA Techniques Used In This Case Are Complex And Potentially Flawed ..............................................................................9

    III. The State’s Contention That The Particular Expert In This Case Was

    Not An Expert Is A Red Herring That Only Serves To Distract From The Real Issues In The Case ......................................................................11

    CONCLUSION ..................................................................................................................12 APPENDIX A - See Guilt by the Numbers: How fuzzy is the math that makes DNA evidence look so compelling to jurors?, CALIFORNIA LAWYER MAGAZINE, April 2009

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    TABLE OF AUTHORITIES

    Cases

    Ake v Oklahoma, 470 US 68; 105 S Ct 1087 (1985) ...........................................................2

    Daubert v Merrell Dow Pharm., Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993) .......................................................................................................7 Dist Attorney’s Office for Third Judicial Dist v Osborne, 557 US 52; 129 S Ct 2308; 174 L Ed 2d 38 (2009) ..............................................................................10 Hinton v Alabama, -- US --; 134 S Ct 1081; 188 L Ed 2d 1 (2014) ............................2, 6, 9

    Leonard v Michigan, 287 F Supp 2d 765 (WD Mich), (report and recommendation Adopted 256 F Supp 2d 723 (WD Mich 2003) ....................................................................6 Melendez-Diaz v Massachusetts, 557 US 305; 129 S Ct 2527; 174 L Ed 2d 314 (2009) ...................................................................................................6, 7 People v Ackley, 497 Mich 381; 870 NW2d 858 (2015) .................................................8, 9 People v Agar, 314 Mich App 636; 887 NW2d 662 (aff'd in part, vacated/reversed in part 500 Mich 891; 886 NW2d 717 (2016) .................................................................4, 9 People v Kennedy, 893 NW2d 337 (2017) ..........................................................................5

    People v Leonard, 224 Mich App 569; 569 NW2d 663 (1997) ......................................3, 5

    People v Tanner, 469 Mich 437; 671 NW2d 728 (2003) ................................................3, 4

    Tanner v Yukins, -- F3d --, 2017 WL 3481867 (CA 6 August 15, 2017) ............................4

    United States v Cronic, 466 US 648; 104 S Ct 2039; 80 L Ed 2d 657 (1984) ..............2, 11

    Rules and Statutes

    MCL 775.15 ...................................................................................................................4, 12

    MRE 702 ..............................................................................................................................7

    Other Authorities

    Guilt by the Numbers: How fuzzy is the math that makes DNA evidence look so compelling to jurors?, CALIFORNIA LAWYER MAGAZINE, April 2009 ................................9

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    “Subjective DNA Mixture Analysis, Used in Thousands of Cases, Blasted by WH Panel,” FORENSIC MAGAZINE, September 8, 2016. ....................................................10 Itiel Dror & Greg Hampikian, “Subjectivity and bias in forensic DNA mixture interpretation,” SCIENCE AND JUSTICE, August 2011 .........................................................10 DNA FOR THE DEFENSE BAR, U.S. Dept. of Justice, Office of Justice Programs, June 2012…………………………………………………………………………… …9-10

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    INTEREST OF AMICI CURIAE

    Amici are Michigan residents who were convicted of various felonies and are currently

    represented by the Michigan Innocence Clinic at the University of Michigan Law School. Some

    have completed their sentences; others remain incarcerated and are serving sentences of up to life

    without parole. All were convicted at trial without the benefit of a defense expert, although the

    prosecution presented expert testimony against them. All discovered after their conviction that

    there were credible experts who could have assisted the defense at the time of trial, and had their

    attorneys consulted with such experts, they may well have been acquitted at trial.

    Amici therefore have a strong interest in the outcome of this case, which addresses the

    standard for the appointment of defense experts in criminal cases. They file this brief to bring to

    the Court’s attention the immense importance of having a consulting defense expert scrutinize

    the State’s expert evidence, especially given the ever-expanding role that forensic science plays

    in our modern criminal justice system.

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    INTRODUCTION

    The prosecution built its case against Defendant Johnny Kennedy on the basis of a DNA

    cold hit and several sophisticated forms of DNA testing, including STR, Y-STR and complex

    mixture analysis of the former. In the face of all that, trial counsel was left to sort out validity,

    materiality and credibility all on his own. As Defendant-Appellant’s brief notes, counsel

    struggled mightily. But he should not have had to fight alone; the Constitution protects Mr.

    Kennedy more than that. “While a criminal trial is not a game in which the participants are

    expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed

    prisoners to gladiators.” United States v Cronic, 466 US 648, 657; 104 S Ct 2039; 80 L Ed 2d

    657 (1984).

    It is not good enough for the prosecution to now say that a defense DNA expert would

    not have mattered. The same was said in the case of Hattie Tanner, and the unfortunate

    consequences of that nearsighted reasoning were finally unraveled just this month, when the

    Sixth Circuit Court of Appeals granted habeas relief to Ms. Tanner. As the U.S. Supreme Court

    has recognized, “[p]rosecution experts, of course, can sometimes make mistakes,” and “[t]his

    threat is minimized when the defense retains a competent expert. . . .” Hinton v Alabama, -- US -

    -; 134 S Ct 1081, 1090; 188 L Ed 2d 1 (2014).

    In an age when forensic science plays an ever-increasing role at criminal trials, this Court

    should use this case to clarify that the due process and fair trial rights of Michigan residents do

    not disappear as science progresses. Instead, as the State uses more science, it is logical that

    defendants will need to consult with experts more often in order to mount a constitutionally

    sufficient defense. The words of Ake v Oklahoma, 470 US 68; 105 S Ct 1087 (1985) remain

    controlling constitutional authority. The standard embraced by this Court in People v Tanner,

    469 Mich 437; 671 NW2d 728 (2003) (and elsewhere) was wrong when that case was decided

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    and must be repudiated. This Court shou