Learn About the Shocking Case & Its Influencing Factors
Prain Law, PLLC is a Michigan criminal sexual conduct (CSC) law firm that specifically concentrates on representing those accused of CSC charges. In September 2019, we published an article about the recent testing of old Detroit rape kits leading to new criminal sexual conduct prosecutions in Wayne County. We remember what a big news story it was and how it received a generally positive response because people felt that it helped victims finally get justice.
However, we pointed out some of the potential evidence problems that could arise from rape kits containing DNA evidence that has been sitting around in warehouses unattended for a decade or two, including degradation, “chain of custody” issues and other flaws that could possibly lead to wrongful criminal sexual conduct (CSC) convictions.
Want to learn more? Contact Prain Law, PLLC to discuss criminal sexual conduct defense options.
Protocol for First-Degree Criminal Sexual Conduct Cases
When someone goes to the police claiming they were the victim of a sexual assault, assuming they do so in a timely fashion and their allegations are such that biological evidence might help to establish any element of any of the degrees of criminal sexual conduct under Michigan law, then they should be referred to a hospital for a SANE Examination, where the "rape kit" is collected. The rape kit consists of a series of body swabs, samples, and other evidence-gathering procedures.
A typical example is when someone alleges sexual penetration by force or coercion, skin cells, saliva, hair, semen, and other biological material could help to establish one of the "multiple variables" of a first-degree or third-degree CSC charge. What is supposed to happen following the examination is that police immediately go to the hospital and personally receive the SANE Evidence Collection Kit from the nurse and fill out the paperwork with signatures to establish every link in the "chain of custody." From there, this so-called "rape kit" is supposed to be sent directly to a Michigan state police forensic biology lab for testing to determine the following:
- whether there are any swabs or samples that contain male DNA
- whether those samples may match any known DNA profiles in the FBI "CODIS" database
- whether those samples may match the DNA profiles of any known suspects in the case, which needs to be obtained with a search warrant.
Supreme Court Case: People v. Jemison
What happened in Detroit over the past few decades due to the lack of funding, among other reasons, is that instead of going to the state police labs, these rape kits sat around in warehouses, sometimes for many years, without being tested at all. In fact, some news accounts indicate that these untested kits were essentially "lost" until they were "discovered" in 2009. Very recently, law enforcement began sending these "discovered" rape kits to laboratories out of the state, such as Bode Cellmark in Virginia and Sorenson Forensics in Utah. Within the past year, hundreds of Detroit defendants had their lives turned upside-down when they learned they were being accused of alleged sex crimes that occurred many years ago.
That was the reality of a man named Arthur Jemison. After an alleged rape in 1996 (remember, Bill Clinton was President when this allegedly occurred), a rape kit was collected but not tested until 2015, just shy of two decades later, when it was sent to a forensic science lab in Utah. The Utah lab made a finding that there was male DNA in the sample, and they forwarded that finding to the Michigan state police lab. The police lab ran the male DNA against samples contained in a database and found that there was an "association" between that sample and Arthur Jemison. As a result, Jemison was charged with two counts of first-degree CSC under MCL 750.520b.
Unfortunately for Jemison, he was convicted after a jury trial in the Wayne County Circuit Court and was sentenced to 22 to 40 years in prison. But on June 22, 2020, in the case of People v. Jemison, Docket No. 157812, the Michigan Supreme Court REVERSED his convictions for criminal sexual conduct 1st degree (click the link to read the entire Supreme Court Opinion).
But the Michigan Supreme Court didn't reverse Jemison's CSC convictions because so much time had gone by, nor did they reverse it based on the scientific complexities of the DNA evidence; they reversed his convictions because the Wayne County Circuit Court allowed an expert witness from the Utah lab to testify via two-way video technology, even though Jemison's Attorney objected to this.
Sixth Amendment Facts & Impacts in First-Degree CSC Cases
Every defendant has a Constitutional right under the Sixth Amendment to see, hear, and confront (meaning question, or "cross-examine") the witnesses that the prosecution calls to testify against them, including expert witnesses testifying about scientific evidence like DNA. This is known as the right of "confrontation," and although there are exceptions, this typically requires the witness to be present and questioned face-to-face in the courtroom.
Legal principles can be very complicated, and the confrontation right involved in Jemison's CSC case is no exception. Basically, the Supreme Court ruled that the inconvenience to the prosecution and the witness, as well as "cost savings" were not good enough reasons to deny the accused their right to confront a witness, like the Utah Lab analyst, face-to-face. While it is true that in criminal sexual conduct trials, a child accuser may be permitted to testify by video for certain reasons, those reasons didn't apply in this case, where the lab analyst was an expert witness and Jemison's attorney didn’t have the opportunity to cross-examine him in any prior court hearings.
Interestingly, the guiding legal principle here regarding "confrontation" under the Sixth Amendment is the same framework that applies to a common question we receive: "Will my Criminal Sexual Conduct charges be dismissed if the alleged victim doesn't show up in Court?"
Of course, Jemison's trial happened before the COVID-19 pandemic, and since then, the use of video technology for court hearings has been vastly expanded beyond what anyone could ever have imagined by sheer necessity. It is very hard to say whether this same logic would apply in identical CSC cases if the trial had occurred after COVID-19. However, it is important to remember that although the trial didn't happen in the post-COVID world, the Michigan Supreme Court's decision in-fact was handed down on June 22, 2020, amid the pandemic, and the court gave no indication that they would have decided any differently just because of COVID-19.
IF YOU OR SOMEONE YOU KNOW IS ACCUSED OF CRIMINAL SEXUAL CONDUCT IN MICHIGAN, MAKE SURE YOU HAVE A TOP MICHIGAN CSC ATTORNEY WHO KNOWS ALL OF THESE IMPORTANT ISSUES AFFECTING YOUR CASE. BELIEVE IT OR NOT, MOST "GENERAL PRACTICE" CRIMINAL DEFENSE ATTORNEYS ARE CLUELESS TO THE MANY UNIQUE FACTORS THAT CAN MAKE OR BREAK A CSC CASE, AND IT COULD COST YOU EVERYTHING.
METRO DETROIT LAWYER BRIAN J. PRAIN HAS BEEN NAMED ONE OF THE 21 BEST CRIMINAL DEFENSE LAWYERS IN DETROIT BY EXPERTISE.COM, NAMED IN D BUSINESS TOP LAWYERS, CALLED ONE OF THE TOP 10 CRIMINAL DEFENSE ATTORNEYS IN MICHIGAN BY THE NATIONAL ACADEMY OF CRIMINAL DEFENSE ATTORNEYS, A TOP 100 TRIAL LAWYER BY THE NATIONAL TRIAL LAWYERS, FEATURED IN SUPER LAWYERS, AND MUCH MORE.
Contact Prain Law, PLLC to start discussing your case today.