Atkins v. People of State of Mich.

• Decision Date: 15 April 1980
• Docket Number: Civ. No. 79-74405.
• Citation: 488 F. Supp. 402
• Parties: Aaron Clinton ATKINS, Petitioner, v. PEOPLE OF the STATE OF MICHIGAN, William L. Cahalan, Wayne County Prosecuting Attorney and William Lucas, Wayne County Sheriff, Respondents.
• Court: U.S. District Court — Western District of Michigan

488 F. Supp. 402

Aaron Clinton ATKINS, Petitioner, v. PEOPLE OF the STATE OF MICHIGAN, William L. Cahalan, Wayne County Prosecuting Attorney and William Lucas, Wayne County Sheriff, Respondents.

Civ. No. 79-74405.

United States District Court, E. D. Michigan, S. D.

April 15, 1980.

Edward F. Bell, Bell & Hudson, Detroit, Mich., for petitioner.

Anne B. Wetherholt, Asst. Wayne County Pros. Atty., Detroit, Mich., for respondents.

MEMORANDUM OPINION AND ORDER

ANNA DIGGS TAYLOR, District Judge.

"We do well to bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum, in Anglo-American jurisprudence: `the most celebrated writ in the English law.' 3 Blackstone Commentaries 129. It is `a writ antecedent to statute, and throwing its root deep into the genius of our common law . . . It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I.' Secretary of State for Home Affairs v. O'Brien 1923 AC 603, 609 (HL). Received into our own law in the colonial period, given explicit recognition in the Federal Constitution, Art. 1, § 9, cl. 2, incorporated in the first grant of federal court jurisdiction, Act of September 24, 1789, c. 20, § 14, 1 Stat. 81, 82, habeas corpus was early confirmed by Chief Justice John Marshall to be a `great constitutional privilege.' Ex parte Bollman and Swartwout (U.S.) 4 Cranch 75, 95, 2 L.Ed. 554, 561. Only two Terms ago this Court had occasion to reaffirm the high place of the writ in our jurisprudence: `We repeat what has been so truly said of the federal writ: "there is no higher duty than to maintain it unimpaired," Bowen v. Johnston, 306 U.S. 19, 26, 59 S.Ct. 442, 446, 83 L.Ed. 455, 461 (1939), and unsuspended, save only in the cases specified in our Constitution.' Smith v. Bennett, 365 U.S. 708, 713, 81 S.Ct. 895, 898, 6 L.Ed.2d 39, 43.

These are not extravagant expressions. Behind them may be discerned the unceasing contest between personal liberty and government oppression. It is no accident that habeas corpus has time and again played a central role in national crises, wherein the claims of order and of liberty clash most acutely, not only in England in the seventeenth century, but also in America from our very beginnings, and today."

Mr. Justice Brennan for the Court in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, at 372 U.S. 400, 83 S.Ct. at 828.

On January 22, 1979, Aaron Clinton Atkins voluntarily presented himself, with his attorney, for arraignment on a charge of first degree murder which had been brought against him by the People of the State of Michigan. With the exception of three brief periods, totaling 24 days, during which he was at liberty on bail ordered on three occasions by trial court judges who were immediately summarily reversed by the Michigan Court of Appeals, Aaron Atkins has been awaiting trial in the Wayne County Jail ever since. There is no date set for his trial. This opinion is being written fifteen months after his first of four voluntary surrenders since the charge in this matter was brought.

A magistrate of the Recorder's Court of the City of Detroit arraigned Atkins on January 22, 1979, on the charge of the murder of one Girard Tolbert, who had been found by the Wayne County Medical Examiner to have died of a drug overdose in 1974. The Magistrate remanded Atkins without bond to the Wayne County Jail. The following day Recorder's Court Judge Dalton Roberson set a $50,000.00 two-surety bond, on motion of Atkins' attorney. Although the People allege in their brief that the order was contrary to Michigan law, no appeal was taken.

The Michigan Constitution, Article 1, § 15 provides:

". . . All persons shall, before conviction, be bailable by sufficient sureties, except for murder and treason when the proof is evident or the presumption great."

Michigan Compiled Laws, § 765.5 provides:

"No person charged with treason or murder shall be admitted to bail if the proof of his guilt is evident or the presumption great."

Michigan Court Rule 790, promulgated by the Supreme Court of Michigan, governs pretrial release. It provides, at 790.1, that, "Except for one charged with murder or treason when the proof is evident or the presumption great, a person charged with a crime is entitled to:

(1) release on his own recognizance,

(2) conditional release, or

(3) release on money bail (surety, 10 percent, or cash)."

The circumstances to be considered by a court in determinations of pretrial release are enumerated and, at 790.5, the rule further provides:

"Unless the defendant is released on his own recognizance, the court must state the reason for its decision on the record. The court's statement need not include a finding on each of the enumerated factors."

At 790.7, review of such orders is provided, as follows:

(b) A bail decision by a judge of a court of general jurisdiction may be reviewed by motion filed in the Court of Appeals.

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(d) The lower court's order setting bail remains in effect and may not be vacated, modified, or reversed except on a finding of an abuse of judicial discretion.

Mr. Atkins' Preliminary Examination, for which he again voluntarily presented himself, was held by Judge Clarice Jobes on January 31, 1979. At that time, he was bound over and again remanded to the Wayne County Jail, without bond. On February 6, 1979, the trial judge to whom the case was assigned, Judge Evelyn Cooper, reinstated the bond previously set by Judge Roberson, and that same day the Wayne County Prosecutor, on behalf of the People of Michigan, filed an emergency application for leave to appeal in the Michigan Court of Appeals. Within three days, on February 9, 1979, and without benefit of a transcript of the Recorder's Court hearing, the Michigan Court of Appeals issued a summary order granting immediate leave to appeal, and ruling:

"It is further ordered that the bond set by the trial court in this cause be, and the same is hereby, canceled sic and the defendant is hereby ordered remanded to the Wayne County Jail."

No findings of either an abuse of discretion or of any other matters were made. That same Court's 1978 decision, in People v. Edmond, 81 Mich.App. 743, 266 N.W.2d 640, which had elucidated the above-quoted General Court Rule 790, had stated that the standard of review of a pretrial release or bail decision must be that of abuse of judicial discretion by the trial court. Moreover, in Edmond, that same court had held that a party seeking review of a bail decision under the pretrial release court rule must file with the Court of Appeals a certified copy of the transcript of the pretrial release hearing. Neither was done in this case.

Aaron Atkins voluntarily surrendered himself again after this bond cancellation, a trial date was set for April 5, 1979, and a series of pretrial evidentiary motions were heard in the interim. On the date of trial, when jury selection was to commence, the Wayne County Prosecutor filed and served a written motion requesting that the court rule upon the admissibility of the "similar acts" testimony of a previously endorsed witness, Levi Williams. Despite the objections of defense counsel that the motion cutoff date had passed, that the requisite four day notice had not been given and that the motion raised questions which could be resolved in the course of the trial, the trial judge, Judge Evelyn Cooper, adjourned the trial to take the motion under advisement. On May 14, 1979, Judge Cooper denied the prosecution motion and set a new trial date of May 30, 1979.

However, on May 18, 1979, the People filed an emergency application for leave to appeal Judge Cooper's adverse ruling; and on May 24, 1979, the Court of Appeals granted the prosecution motion for immediate consideration of the interlocutory appeal, granted a Stay of Trial pending appeal, and halved the briefing schedule. As with the first order, no grounds for the orders were stated. The Court of Appeals heard oral arguments on the appeal in October, 1979. The trial remains stayed, to this date, and no decision has yet been made by the Court of Appeals on the prosecution's emergency appeal.

On August 30, 1979, Judge Cooper heard arguments on Mr. Atkins' motion to dismiss for denial of his right to a speedy trial. She denied that request, but made findings on the record that circumstances had changed since the Court of Appeals' cancellation of bond of February 9, 1979, and for stated reasons including Atkins' history of three voluntary surrenders during pendency of the charges, and that he had been incarcerated for more than six months, ordered a $50,000 ten percent bond.

Michigan General Court Rule 789.2 relating to Speedy Trial in criminal cases, provides in relevant part that:

"In felony cases where the defendant has been incarcerated for a period of six months or more to answer for the same crime or a crime based on the same conduct . . . the defendant shall be released on his own recognizance, except that in computing the . . . 6 month periods, the following periods shall be excluded:"

The prosecution's argument at that time and its subsequent appeal was that the following exclusions from the six month limitation of 789.2 were applicable to Atkins on August 30:

(1) The period of delay resulting from other proceedings concerning the defendant, including but not limited to an examination and hearing on mental competency and the period to which he is not competent to stand trial, hearings on pretrial motions, interlocutory appeals, and trial of other charges.

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(3) The period of delay resulting from a continuance granted to the request of the prosecuting attorney, if

(a) the continuance is granted because of the unavailability of evidence material to the state's case, when

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