Michigan Criminal Lawyers Blog

It is perhaps the rarest bird in the Litigation Jungle: An Order for a New Trial on the heels of a conviction for First Degree Murder. It is an action that has been driven to near extinction, due in large part to the fact that Michigan state judges are elected - rather than appointed for life, like federal judges.

Because of its potential to alienate the electorate, the decision to overturn a jury verdict can only come from an unshakable reverence for justice. Few elected judges have the courage to take such an unpopular action, choosing instead to duck the blow-back by kicking the can down the road to the Court of Appeals.

But one Michigan judge is never afraid to do justice: Battle Creek Judge Conrad Sindt. Yesterday, presiding by appointment in Coldwater, Michigan, the Judge granted a Defense Lawyer's motion for a new trial - and set aside Defendant Thomas Foley's conviction for First Degree Murder.

The saga began on February 7, 2009. The Defendant's wife, DeeDee Foley, then 41, was shot to death in the couple's residence, while showering. Thomas Foley claims that he returned home that day from an outing and found his wife dead in the shower stall.

At trial, Foley's young sons testified that, on the day of the homicide, while outside romping on the grounds, they heard a 'loud sound' coming from the house. Foley's explanation was that he had dropped a window behind the residence - which made a loud noise.

The Defense Lawyers argued at trial that the evidence pointed to a burglary gone awry. Prosecutors asserted that the scene was staged by Foley.

In support of the Defense theory, witness Kenneth Brownell testified at trial that he saw an unfamiliar white car leaving the Foley home on the day of the incident, at a time Foley was elsewhere.

The Judge's ruling focused on the emergence of supplemental information. Under the law, a motion for a new trial based on a claim of new evidence, must demonstrate that: (1) The evidence is newly discovered; (2) that it is not cumulative; (3) that a different result is probable at a second trial, and; (4) that the Defense Lawyer, with reasonable diligence, could not have discovered and produced the new evidence at trial.

Ironically, that rule comes, in part, from the Michigan Supreme Court's decision in the case of People v Cress (yet another Battle Creek area murder case). Recall from previous RLG blogs that a US Senator, together with two Police Officials who helped convict Mr. Cress - have joined forces and are now fighting for Mr. Cress' freedom. Newly discovered evidence is also central to that battle, as well.

The new evidence in the Foley case surfaced when witnesses Janette Moor and Jacklyn Gibson came forward and said that, on the day of the murder, they observed suspicious vehicles at the Foley residence. Again, at the time, Foley was at a different location.

The Judge emphasized that, because the Prosecution case lacked direct evidence, the new information was likely to yield a different result at trial. The Judge also noted that the new evidence dovetailed with the Defense theory that Mrs. Foley was killed by intruders.

Prosecutors have already vowed to appeal Judge Sindt's order for a new trial. Team RLG predicts that a central Prosecution argument will be that the evidence is merely cumulative. Stay tuned for new developments.

Prosecutors to Appeal New Foley trial, Battle Creek Inquirer, March 24, 2010

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In 1985, a jury found Thomas Cress guilty of the 1983 murder of Battle Creek resident Patricia Rosansky. The victim was 17 at the time.

Cress, currently 53, has been locked down in Jackson Prison ever since. Now, prominent law makers and even police are strenuously advocating for Cress' exoneration. In fact, the Parole Board is conducting a parole hearing today in Jackson, to decide whether Cress should be released from prison on parol.

But high level Politicians are calling for the State to go even further. US Senator Carl Levin is requesting that Governor Jennifer Granholm issue a grant of clemency. The Senator is backed by former Battle Creek Police Chief Dennis Mullen and Battle Creek Detective Joe Newman. According to Levin, the two officers virtually threw away their careers to right this wrong.

No, neither Senator Levin nor the Police have gone soft on crime. They are reacting to a raft of evidence confirming Cress' actual innocence. Probably the most important piece of the puzzle is the confession made by a man who claims to be the real killer. That individual took and passed a polygraph test - verifying his confession. He is also suspected of committing two other area homicides. But there is even more.

Physical evidence recovered from the scene also tends to clear Cress, say police. And witnesses who testified against Cress have subsequently recanted their testimony. In support of those retractions, Police emphasize that those witnesses were vying for reward money.

The Police Officers further report that, when they initially informed the Prosecutor's Office that they believed Cress to be innocent, the Prosecutor was in possession of DNA evidence. The Prosecutor's Office, however, has subsequently destroyed those items.

Of course, there is another side to those arguments. The law views recantations with skepticism. False confessions are a confirmed phenomenon. The law regards the science of polygraphs as unreliable. For that reason, polygraph results are not admissible as evidence at trial. Most importantly, the Michigan Court of Appeals and the Michigan Supreme Court have repeatedly held that the law must give great deference and respect to jury verdicts.

Meanwhile, back in Lansing, Governor Granholm is under substantial criticism for her plan to alleviate state budgetary woes by granting early release to prisoners. We can only hope that the Governor will have the courage to set aside concerns about her own tarnished public image - and do the right thing.

Sen. Levin Backs Clemency For Convicted Killer, Detroit Free Press, March 18, 2010