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Retiring justice calls for fix to exoneration law in concurrence

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Michigan’s exoneration law needs to updated so more people who were wrongfully convicted can be compensated for time needlessly spent in prison, argued Michigan Supreme Court Justice Bridget Mary McCormack in one of her final actions before she leaves the bench.

McCormack authored a reluctant concurring opinion to an otherwise unsigned order that found Charles Dale Perry Jr. isn’t entitled to as much as $300,000 based on a technical distinction in Michigan’s Wrongful Imprisonment Compensation Act.

“Keep the bad luck coming, I guess. I don’t like administering legal rules that I can’t explain to the people they impact,” she wrote. “Please fix it, legislators.”

New evidence played a part in ordering a new trial for Perry after he was convicted of five counts of criminal sexual conduct and imprisoned for five years. If that was all, Perry would have been entitled to compensation from the state. But, so did prosecutor misconduct and ineffective assistance of defense counsel. And those last two elements aren’t covered under the law.

McCormack said she’s “deeply troubled” by that loophole:

It would be slightly less disconcerting if this example were rare. But I suspect the opposite is true. Wrongful convictions are almost always the result of multiple system failures—an ineffective lawyer, evidence withheld by police or prosecutors, junk science, a trial court reluctant to gatekeep effectively. When systems fail, errors occur; some of those errors map neatly onto legal claims about new evidence of innocence but often failing systems produce other errors that are unrelated to new evidence.

Justice Megan Cavanagh also signed the concurrence. Supreme Court orders are typically not signed by justices in the majority.

McCormack was a founder of the University of Michigan Law School Innocence Clinic wrongful conviction before she ran for the Michigan Supreme Court. She is retiring from the court this year to lead an alternative dispute resolution program.

Rick Pluta is Senior Capitol Correspondent for the Michigan Public Radio Network. He has been covering Michigan’s Capitol, government, and politics since 1987. His journalism background includes stints with UPI, The Elizabeth (NJ) Daily Journal, The (Pontiac, MI) Oakland Press, and WJR. He is also a lifelong public radio listener.
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