FREE CHARLES LEWIS NOW! HEARING FRI. SEPT. 28 @ 9 AM–FRANK MURPHY HALL RM. 502
Call Judge Qiana Lillard at 313-224-2391 to express support
FREE THE MICHIGAN 247 STILL BEING HELD IN VIOLATION OF MILLER
Video above (Detroit News):
Mubarez Ahmed, granted a new trial after 15 years due to the intervention of the Michigan Innocence Clinic, speaks out for the dozens of innocent prisoners he left behind. Private investigator Scott Lewis estimates at least 30 percent of Michigan prisoners are innocent.
DETROIT – Atty. Sanford Schulman of the Federal Defenders’ Office will present six powerful motions calling for the immediate release of Charles (K.K.) Lewis, in prison for 42 years since the age of 17, at a hearing next Friday, Sept. 28 at 9 a.m. in front of Judge Qiana Lillard. The hearing is the 35th in a grueling series comprising his juvenile lifer “re-sentencing,” which began in March, 2016.
“I am finally happy and confident that I have an attorney who will fight effectively for me,” Lewis says of Schulman.
Lewis stands at the forefront of 247 Michigan juvenile lifers, two-thirds of the state’s total, for whom prosecutors have re-recommended LWOP. Their stance violates two U.S. Supreme Court rulings which held that”only the rarest child” should be sent to die in prison. Most of the Michigan 247 have yet to see a judge.
Lewis’ case is unique on many counts, including the complete loss of his official court record and Register of Actions, his claim of “actual innocence,” his challenge to the prosecutor’s request to re-sentence him to LWOP, and his request for bond since he has been without an actual sentence for over 6 years.
MOTION TO DISMISS FOR LACK OF CASE FILE AND RECORDS TO COMPLY WITH THE US SUPREME COURT REMAND FOR RESENTENCING
Atty. Schulman is contesting Judge Lillard’s authority to “re-construct” and certify Lewis’ entire court file, five boxes of which mysteriously went “missing” sometime around 2012.
On Nov. 11, 2016, Judge Lillard ordered the prosecution, defense, and Clerk’s Office to pool all their records, refusing to obey key U.S. and Michigan Supreme Court rulings that the loss of the case file, even in part, must result in dismissal and remand for a new trial.
It remains to be seen if Judge Lillard will certify the incomplete record that resulted.
“I strongly object,” Lewis said at that hearing Nov. 11. “Most of the defense’s records came from my own foot locker, which I turned over to my previous attorneys under the attorney-client privilege. I am re-asserting that privilege.”
Lewis’ Register of Actions has likewise been wiped out from 1976 to 1999, including an attachment listing actions taken in Detroit Recorder’s Court prior to 1999. It currently says he was convicted on April 3, 2000 in front of Judge Gershwin Drain. Thus there is no way to determine what records should be included in a complete file. Additionally, there is no way to determine what judge he should be in front of for re-sentencing.
Schulman writes, “Where the trial court’s files and records are missing, lost or have been destroyed and as such the court cannot comply with the U.S. Supreme Court’s order remanding this case for resentencing, this court should dismiss the case and order the defendant immediately released on the basis that to otherwise proceed to resentencing without a complete court file would result in a violation of the due process of law and a fundamental miscarriage of justice (US Const. Amends. VI and XIV).” Read entire motion at http://voiceofdetroit.net/wp-content/uploads/lewis.charles.mtn_.5.dismiss.file-1.pdf.
MOTION TO DISMISS CASE DUE TO DEFENDANT’S ACTUAL INNOCENCE
“I estimate that at least 20 percent of juvenile lifers in Michigan are actually innocent,” Lewis says. He and his family have always maintained he was framed up for the murder of a white off-duty Detroit police officer in 1976. Extensive research done by the Voice of Detroit over the last three years confirms this claim.
Prosecutors and some defense attorneys say that an innocence claim cannot be entertained in a “re-sentencing,” which is not a “re-trial.”
However, Lewis points to U.S. Justice Stephen Breyer’s and Justice Sonya Sotomayor’s concurring opinion in Miller/Jackson v. Alabama (USSC 2012), the Court’s first opinion outlawing mandatory juvenile life without parole.
“JUSTICE BREYER, with whom JUSTICE SOTOMAYOR joins, concurring. “I join the Court’s opinion in full. I add that, if the State continues to seek a sentence of life without the possibility of parole for Kuntrell Jackson [the second defendant who is rarely mentioned] there will have to be a determination whether Jackson “kill[ed] or intend[ed] to kill” the robbery victim. Graham v. Florida, 560 U. S. (2010) (slip op., at 18). . . . Given Graham’s reasoning, the kinds of homicide that can subject a juvenile offender to life without parole must exclude instances where the juvenile himself neither kills nor intends to kill the victim.”
“I got arrested Aug. 1, 1976,” Lewis says. “When I stepped into the courtroom racism was the order of the day. White Power was in full effect. I felt like I was sitting through my own lynching.”
Lewis’ hearing Sept. 28 comes at a time when releases of wrongfully convicted individuals, many of whose cases date back decades, are hitting record highs.
Since 2003, according to the National Registry of Exonerations, there have been 72 exonerations in Michigan, with a record of 14 last year alone. This year, four prisoners have been completely exonerated, while at least three others have been granted new trials. One, Thelonious “Shawn” Searcy, is waiting in the wings for his judge’s ruling after an evidentiary hearing that exposed deep levels of corruption and deceit among prosecutors and police.
The number of exonerations and dismissals exposes what has been a deeply flawed and corrupt judicial system in Wayne County for decades, going back to the convictions and sentencing of Richard Phillips in 1971 and of Lewis in 1976 and continuing to the present day, as in the case of Thelonious “Shawn” Searcy, where Vincent Smothers testified earlier this year that he, not Searcy, committed the murder in question, and lies to the jury about ballistics evidence were exposed.
“The Defendant . . .asserts that his ACTUAL INNOCENCE has already been established by a Court,” Schulman writes in Lewis’ innocence motion. “In People v Bernard Young, 2017 Mich App Lexis 1779 this Court granted the Defendant’s third motion for relief from judgment and ordered the release of Bernard Young based on recanted testimony.”
It was Lewis’ current judge, Qiana Lillard, who ordered the release of Bernard Young in December, 2017. Young was incarcerated for 27 years, most recently in the Lakeland Correctional Facility in Coldwater, MI, where Lewis is currently incarcerated.
“In this case the Defendant’s ACTUAL INNOCENCE has already been established by Judge Deborah Thomas,” Schulman further states. ” . . . . the Defendant asserts that this Court is legally bound by Judge Deborah Thomas’ previous legal conclusion that the Defendant is ACTUALLY INNOCENT and must order the Defendants immediate RELEASE.”
Schulman refers to a stunning opinion dated Aug. 16, 2006 in which Thomas says she “thoroughly” reviewed the full transcript of Lewis’ first trial held in March, 1977, the last time any judge appears to have read that transcript.
She said there was no record of Judge Joseph Maher’s reason for dismissal of the trial jury, which should have meant an acquittal, with no new trial because of the double jeopardy standard.
(Maher was the judge who tried to take the law license of the late Kenneth Cockrel, Sr. for telling reporters that Maher was a racist, in multiple and certain term.)
She said she found it difficult to believe the first jury ignored the testimony of the officer’s partner and numerous eyewitnesses to the murder, who said another man driving a white Lincoln Mark IV shot Officer Gerald Sypitkowski, and chose instead to believe the testimony of three juveniles who said they were with Lewis when he killed Sypitkowski.
She said the juveniles’ version of events was “a scientific impossibility,” and noted none of the eyewitnesses reported seeing the juveniles at the scene. None of the juveniles testified that they actually SAW Lewis shoot the officer, just that he was with them in a yellow Ford Gran Torino followed by a green Mustang. No other witnesses reported seeing such cars.
Thomas also cited Maher’s jury instruction, “Now you have heard evidence tending to show that the Defendant, Charles Lewis was GUILTY of another shooting in the course of an armed robbery for which he is now on trial here.”
She opined, “This Court believes that the above instruction was a structural defect which defied analysis by the harmless error standard of review. I would reverse this case based on the above instruction. This Court is of the opinion that any time a judge instructs a jury that the Defendant is GUILTY of any element of the offense, regardless of his motives that it should be deemed reversible error.”
To read Atty. Schulman’s complete motion, go to http://voiceofdetroit.net/wp-content/uploads/lewis.charles.mtn_.6.dismiss.actual.innocence.pdf. To read Judge Deborah Thomas’ opinion, go to http://voiceofdetroit.net/wp-content/uploads/Judge-Deborah-Thomas-2006-opinion.pdf.
MOTION TO DISMISS THE PROSECUTION’S UNTIMELY AND INADEQUATE REQUEST TO SENTENCE THE DEFENDANT TO LIFE WITHOUT THE POSSIBILITY OF PAROLE PURSUANT TO MCLA 769.a
Atty. Schulman writes that Third Circuit Court Judge Edward Ewell Jr. first granted Lewis’ re-sentencing on Oct. 17, 2012, pursuant to the 2012 U.S. Supreme Court’s Miller/Jackson v. Alabama declaring mandatory juvenile life without parole unconstitutional. The U.S. Supreme Court later confirmed this was a valid re-sentencing date under Miller/Jackson and remanded the case to the Michigan Supreme Court to comply.
“The Michigan Supreme Court reversed the Michigan Court of Appeals August 29, 2013 and remanded this case to the trial court,” writes Atty. Schulman. “On REMAND this case should have returned to either Judge Edward Ewell Jr., the judge that granted resentencing on October 17, 2012 or the current judge of record Judge James Chylinski for resentencing.”
Lewis says that his case WAS originally set for a hearing in front of Judge Chylinski by the judge, but that Asst. Criminal Court Clerk David Baxter (now retired) unilaterally and illegally refused to have Lewis writted out for the hearing, instead giving his case to Judge Lillard. It was under Baxter’s supervision that Lewis’ court file went missing.
Schulman continues, “In August of 2016, assistant Wayne County Prosecutor, Jason Williams filed a motion to conduct a mitigation hearing pursuant to MCLA 769.25 to resentence the Defendant Charles Lewis to life without parole. When Jason Williams filed the motion . . . there was no criminal file in this case. Because there was no criminal file in this case Jason Williams did not have anything to base his request for life without parole on. Jason Williams did not recite the procedural history of this case in his request for life without parole. Jason Williams also did not recite the facts of this case in his request for life without parole.”
Schulman goes on to argue that Williams’ motion violated ex post facto laws because MCLA 769,25 was not passed until 2014, so it should not have applied to Lewis. Other juvenile lifers including Cortez Davis, whose trial judge Vera Massey-Jones ordered his re-sentencing in 2012 have raised the ex post facto issue as well. Davis was re-sentenced to a term of years and is now free, but his attorney Clinton Hubbell still appealed the re-sentencing. Hubbell had moved to have Davis sentenced to the original term of 10-40 years Judge Massey-Jones wanted in 1994, declaring long before the U.S. Supreme Court rulings against juvenile life without parole that she did not believe in throwing away the lives of children. Davis was 15 when he was convicted.
Wayne County Prosecutor Kym Worthy used boiler plate motions like Lewis’ to ask that 67 Wayne County juvenile lifers die in prison, 97 percent of them Black. No reasons to set them aside from other juvenile lifers who were recommended for a term of years were cited.
From discussions VOD has conducted with other juvenile lifers, they were evidently selected with the concurrence of attorneys from the State Appellate Defenders’ Office (SADO). In at least one case, that of Jenard Sharp, attorneys from the Michigan ACLU and a New York law firm have also contested the lack of specifics in the prosecutor’s sentencing memorandum. Sharp is charged with “felony murder,” meaning he did not actually kill anyone. Many juvenile lifers who were actually the shooters received recommendations for terms of years (not to say they should have received LWOP recommendations, which are reserved for only the “rarest” child).
Schulman writes, “There have been dozens of other similar cases in Michigan where a previously imposed mandatory life sentence was imposed on a juvenile and the prosecutors did not seek to have the sentence of mandatory life reinstated. Instead, in the vast majority of ‘juvenile lifer’ cases, a term of years has been imposed. What makes this case different and distinguishable is unclear even to this date. Such an arbitrary and unreasonable application of this statute makes it unfair and a violation of due process and constitutional rights.”
THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE US CONSTITUTION, WHERE DEFENSE COUNSEL ARGUED TO THE JURY THAT THE DEFENDANT WAS GUILTY.
In this motion, Atty. Schulman cites the appalling opening statement of Lewis’ court-appointed attorney M. Arthur Arduin, Jr. (family name Arduino), known to have ties with Detroit mob figures. Arduin was also previously a campaign manager for Judge Thomas Poindexter, head of the Greater Detroit Area Homeowners’ Council which campaigned to keep Blacks out of white neighborhoods during the volatile era of the ’60’s and ’70.s.
Arduin: “There’s been a killing; there’s been an attempted robbery; there’s been a attempted robbery prior to this matter at issue today. Now we have here only one Defendant. But originally there were four young blacks. If they are part of a gang, I don’t know. But let’s assume they’re part of a gang. . . . .We’ re going to prove four lads who are part of a gang who are — who are expertise. Expertise, -they knew how to steal cars and God only knows if they knew how to rob. Now that’s what we’re going to prove. And they started out on this day, July 31st, four of them — four of them — to steal a car and to go out and commit a robbery. And they took with them the tools of their trade.
“And I’m going to prove to you that these lads made a deal, they made statements with the understanding that they would not be prosecuted in this court. And I’m going to prove to you that the prosecution depends on the efforts of the police and they did not make any effort to prosecute these lads. That was the agreement: for them to testify against their pal and friends. We’re going to prove to you that at the time another crime was committed this shotgun was a one-shell shotgun. It was an old thing, it was stored in the garage of one of the other lads who used his garage as a gang get-together. And we are going to prove to you that this one shell was fired from this gun in this other attempt aborted hold-up as Mr. Morgan has stated to you: that that gun was never refilled. Never refilled with another live shell. That the prosecution is depending on the proof that that was the gun that killed the deceased. That’s my opening statement; that’s what we hope to prove. (TRIAL TRANSCRIPT PG 21-24)”
“The Defendant’s trial attorney was grossly ineffective,” Atty. Schulman argued. “Arthur Arduin refused to tell the jury that off duty Detroit Police Officer, Dennis Van Fleteren testified that he was talking to the deceased when Leslie Nathaniel pulled up next to the deceased and shot and killed him. The result would have been different if Arduin had argued to the jury that eye witnesses identified Leslie Nathaniel as the killer.
“In this case one of the eye witnesses, Dennis Van Fleteren, was also an off duty Detroit Police Officer, and the best friend and partner of the deceased. Defense counsel completely abandoned the then seventeen year old juvenile and left him totally defenseless. The defendant’s lawyer was ineffective for failing to make that argument to the jury that Leslie Nathaniel shot and killed the deceased. Six eye witnesses testified that the shotgun blast that killed the deceased came from a white Mark IV. Defense counsel for the Defendant failed to make that argument to the jury. The result would have been different if Arduin had argued to the jury that eye witnesses identified Leslie Nathaniel as the killer.”
DEFENDANT’S MOTION FOR BOND PENDING RESENTENCING
Lewis’ previous attorney brought a motion for bond that she did not support with the proper legal precedents given her by Lewis, who has become a highly proficient jailhouse lawyer and worked directly with Atty. Schulman in drafting the current motions.
AP Thomas Dawson’s response at the time was basically to laugh it off, pointing to Lewis’ record of disciplinary actions while incarcerated, most of them minor for “being out of place” in the law library, where he now works at the Lakeland Correctional Facility.
Dawson did not consider the state of mind and the anger that Lewis must have experienced on entrance to the MDOC , knowing that he was innocent of the first-degree murder charges, and expecting he would never see freedom again. But he immediately set about to learn the law that had imprisoned him unjustly and to use it to help himself and others get free. He took a paralegal course along with many others to educate himself. He has also honed his musical skills, leading prison bands which play jazz, R&B, rock, and rap during the last four decades.
Atty. Schulman has presented powerful arguments calling for his innocent client to receive a bond, just as Judge Lillard granted to falsely convicted Bernard Young in the video above.
”The Defendant is currently being held in prison illegally,” Schulman states. “The Defendant’s first jury was dismissed sua sponte by Judge Joseph E. Maher on March 22, 1977. All subsequent Legal proceedings held after March 22, 1977 were double jeopardy barred by People v Benton, 402 Mich 47 (1979).
“ On August 22, 1980 the Michigan Court of Appeals granted the Defendant a Pearson evidentiary hearing pursuant to People v Pearson, 404 Mich 698 (1979). Pursuant to Pearson the prosecution had 30 days to conduct a Pearson evidentiary hearing or the conviction was automatically vacated. The prosecution’s 30 days began on August 22, 1980 and ended September 22, 1980 with no Pearson evidentiary hearing. The Defendant’s conviction should have been automatically vacated on September 23, 1980.
“Judge Lillard did not have the power or authority to order Thomas Dawson, assistant Wayne County Prosecutor or David Baxter Deputy Wayne County Clerk to reconstruct the defendant’s criminal file. . . .It is one of the necessary and fundamental rules of law that the judicial power cannot interfere with the legitimate discretion of any other department of government. So long as they do no illegal act, and are doing business in the range of the powers committed to their exercise, no outside authority can intermeddle with them; and, unless the action complained of was beyond the legal discretion of the city, the circuit court had no jurisdiction to grant the injunction which was allowed.
“. . . .The Defendant is entitled to a bond pending a hearing to determine if he should even be locked up.”
Lewis says that when he goes to Jackson Prison’s medical clinic for treatment of macular degeneration of his eye, the guards there cannot figure out whether they should even handcuff him because they can find no record of a current sentence. The disease in his eye is an effect of the severe diabetes he contracted after being incarcerated. Lewis has also had three heart attacks during his incarceration. After the last one, the MDOC denied him surgery for a stent.
During the nearly three years of re-sentencing hearings, he has commented, “I think they are just waiting for me to die.”
But he says he is determined that he will come home, and that since 42 years of his life has been stolen from him, he hopes that his battles and the research attendant on them will assist the prisoners who come after him. He says he is seeing more and more young men, products of the school-to-prison pipeline, enter MDOC, to swell the ranks of mass incarceration in the U.S.
Lewis says Lakeland is a prison where the MDOC sends individuals to die, and that about 50 prisoners die there annually. He still remembers many who died who were good friends of his, but he refuses to follow in their stead.
“Well, they had a bad day, but I’m still here,” he jokes drily. Aside from being a world-class musician who can play nearly every instrument and regularly organizes concerts for his fellow prisoners, Lewis wants to be a stand-up comic when he comes home.
He says, “I try to find a little bit of fun and a little bit of joy in every day.”
OBJECTIONS TO JUDGE QIANA LILLARD’S ORDER OF NOV. 11, 2016
Atty. Schulman has also re-filed Lewis’ pro se motion objecting to Judge Lillard’s order to reconstruct his file, which raises multiple U.S. and Michigan Supreme Court rulings that the loss of an official court file, even in part, means the conviction and sentence must be vacated and remanded for a new trial.