Video above from earlier hearing in Oct. 2016
Lewis hearing held Aug. 3, motions not to be heard until Sept. 28, judge says she may not proceed beyond that date
Prosecution wants to wait for non-binding directions from Michigan Judicial Institute
Lewis case is “poster child” for other juvenile lifers in “Up South” Michigan
Numerous families outside Frank Murphy Hall protest wrongful convictions in other cases prior to Lewis hearing
By Diane Bukowski
August 11, 2018
DETROIT – Will juvenile lifer Charles Lewis, 59, finally go free after 42 years in prison, including two-and-a-half grueling years of re-sentencing hearings in front of Wayne County Circuit Court Judge Qiana Lewis?
At the conclusion of his 33rd hearing Aug. 3, Lillard said she has not yet certified a court file to replace the original which went missing sometime after 2012. She said she will rule Sept. 28 whether she can. If not, she implied, no more hearings will be necessary.
She also granted a defense motion for the appointment of a “mitigation” expert if the case moves forward. She pledged to work to facilitate Lewis’ transfer from Lakeland Correctional Facility to Ryan Correctional Facility in Detroit to allow his defense attorney easier access to his client.
Presiding Circuit Court Criminal Judge Timothy Kenny facilitated a similar transfer in the ongoing evidentiary hearing of Thelonious “Shawn” Searcy, from Chippewa Correctional Facility in the upper peninsula, to the Thumb CF, closer to Detroit.
“I believe they are waiting for me to die in prison,” Lewis said earlier. He is going blind in one eye because of macular degeneration due to a severe case of diabetes, and has suffered three heart attacks. He was denied the implantation of a stent after the third attack. His 77-year-0ld mother Rosie Lewis is also in failing health.
Lewis has maintained since his conviction in 1977 that he is innocent of the murder of an off-duty police officer on Detroit’s east-side. The officer’s partner and numerous other eyewitnesses testified at his trials that a different man in a white Lincoln Mark IV was the killer. Their testimony made up the major part of the trials.
In addition to ruling on file certification, Lillard will also hear arguments on motions originally filed by Lewis pro se, which his defense attorney Schulman has said he will either supplement or adopt as is. Schulman is due to have the motions ready by Sept. 4 and AP Tom Dawson is to respond by Sept. 18 in preparation for the Sept. 28 hearing.
Lewis’ motions involve dismissing his case due to the loss of his court file, actual innocence, ineffective assistance of trial counsel (who argued he was guilty), ex post facto violations in the prosecutor’s request for life without parole, and bond.
His defense attorney Sanford Schulman told VOD Aug. 3 that if Judge Lillard does not “certify” the replacement file, it should mean that Lewis would be re-sentenced to time served. The majority of Lewis’ official court record, including his Register of Actions from 1976 to 2000, went missing sometime after 2012. (See box at right.)
Against Lewis’ strenuous objections citing higher court precedents that his case should be dismissed, Judge Lillard ruled in 2016 that the Wayne County Clerk, prosecutor and defense should “re-construct” the file by combining all their records of the case. His previous defense attorney Valerie Newman contributed a flash drive of records that included numerous attorney-client privileged documents from his original appellate attorneys, a constitutional violation.
But Lewis contends the file is far from complete.
“There is no Register of Actions from 1976 to 2000 to compare anything in the file to!” Lewis wrote his attorney recently. “Whoever reconstructed the file had nothing to compare what they had to. So, there was no way for them to know what should or should not have been in the file. None of the people that reconstructed the file were ever involved in the case at any stage of the proceedings.”
Lewis himself, the only person present at all of the proceedings, was not allowed to participate in the file “re-construction.” Citing a Michigan Supreme Court ruling, People v. Fullwood (1974), he says a lost criminal court file CANNOT be reconstructed, and that he has found no precedent for such an action anywhere in the country.
In Chessman v. Teets (1957). the U.S. Supreme Court overturned the defendant’s conviction on similar grounds, citing the 14th Amendment.
“All we hold is that, consistently with procedural due process, California’s affirmance of petitioner’s conviction upon a seriously disputed record, whose accuracy petitioner has had no voice in determining, cannot be allowed to stand.”
Lewis is one of Michigan’s 247 juvenile lifers, sentenced as children, still waiting for re-sentencing six and one half years after the historic U.S. Supreme Court Miller v. Alabama ruling that declared their sentences unconstitutional.
They are the two-thirds of the state’s juvenile lifers that county prosecutors still want to die in prison, a barbaric practice used only in the U.S.
On June 20, the Michigan Supreme Court ruled in People v. Hyatt/People v. Skinner, that the re-sentencing judge is not obligated to include any facts indicating that the defendant was the “rare” child incapable of rehabilitation, to support a renewed sentence of life without parole. That ruling blatantly violated the historic U.S. Supreme Court holdings in Miller v. Alabama (2012) and Montgomery v. Louisiana (2016), as well as an earlier ruling by a seven-judge appellate panel in Michigan.
Attorney Deborah LaBelle told VOD at the time, “There has been a motion for reconsideration filed, addressing the errors and advising the court of the recent federal Fourth Circuit case which reached a directly opposite opinion than [the Michigan Supreme Court] in Hyatt. A certification petition will be addressed after a ruling on that motion which depending on when heard, could be addressed by a different court after the November elections.”
The Fourth Circuit ruling in the case of Lee Boyd Malvo directly contradicted Hyatt/Skinner. Malvo was 17 when he aided his adult co-defendant John Muhammad in the sniper killings of 12 people in Washington, D.C. and Virginia in 2002. Muhammad has since been executed.
But the Fourth Circuit Court ruled, “. . . .we affirm the district court’s order vacating Malvo’s four terms of life imprisonment without parole and remanding for resentencing to determine (1) whether Malvo qualifies as one of the rare juvenile offenders who may, consistent with the Eighth Amendment, be sentenced to life without the possibility of parole because his “crimes reflect permanent incorrigibility” or (2) whether those crimes instead “reflect the transient immaturity of youth,” in which case he must receive a sentence short of life imprisonment without the possibility of parole. Montgomery, 136 S. Ct. at 734.”
During the Aug. 3 hearing, Assistant Prosecutor Tom Dawson sought to have Judge Lillard set the next hearing date for Oct. 6. By then, he said a “benchbook” on juvenile lifer re-sentencings after Hyatt/Skinner, produced by the Michigan Justice Institute (MJI), should be ready.
The MJI, the “training” arm of the Michigan Supreme Court and the State Court Administror’s office, has a panel discussion on the matter scheduled for Sept. 20. Assorted judges and defense and prosecution attorneys will try to reach a loose consensus. Their recommendations, however, are non-binding in court. A similar hearing on juvenile lifer re-sentencing, available in video on the MJI website, was held in 2016. Notably, all the participants in the video are white, discussing the fate of a population of juvenile lifers which is 70 percent Black. See https://mjieducation.mi.gov/videos/juvenile-resentencing-under-miller-v-alabama-and-mcl-769-25-25a.
Prior to the Aug. 3 hearing, numerous families gathered outside the Frank Murphy Hall to protest what they said were other wrongful convictions of loved ones. It was the second such group protest held in two weeks, indicating that anger at the justice system in “Up South” Michigan is growing. Participants in the Aug. 3 rally included the families of Roosevelt Pettiford, the Vesey brothers, Danny Burton, and more.
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