Prosecutor’s Misstatement Did Not Deny Parents A Fair Adjudication Trial

The respondents in this termination of parental rights case were not denied a fair trial or effective assistance of counsel, the Michigan Court of Appeals has ruled.

It was the fourth time the Court of Appeals heard the case of In re Piland, Minors (Docket No. 360062).

The Ingham County Circuit Court in Piland had terminated the respondents’ parental rights to their children pursuant to MCL 712A.19b(3)(b)(ii) and MCL 712A.19b(3)(j) after their newborn died of hemolytic disease (i.e., incompatibility with the mother’s blood). The respondents had refused treatment for the newborn, believing the medical condition should be “left in the hands of God.”

In this appeal, the respondents claimed the prosecuting attorney acting on behalf of the Michigan Department of Health and Human Services (the DHHS) engaged in misconduct by referring to them as “defendants” at their adjudication trial. When this happened, the respondents’ attorney objected. The prosecutor immediately acknowledged that the word “defendants” was incorrect and that the proper term was “respondents.” The trial court did not sustain the objection of the respondents’ lawyer, nor did it provide the jury with a curative instruction.

The Court of Appeals held that the prosecutor’s slip-up did not rise to the level of attorney misconduct and the respondents “were not denied a fair or impartial trial on the basis of the prosecutor’s single use of the term ‘defendants.’”

The Court of Appeals also rejected the respondents’ claim that they were denied effective assistance of counsel because their lawyer appeared via videoconferencing, explaining that the Michigan Court Rules “explicitly allow” attorneys representing respondents to appear remotely.

Judges Michael J. Kelly, Thomas C. Cameron and Noah P. Hood were on the panel that issued the unpublished opinion.

Wrong Word

During closing arguments at the respondents’ adjudication trial, the prosecutor for the DHHS addressed the respondents’ refusal to allow their midwife to return to their house two days after the now-deceased child was born. The following exchange took place.

Prosecutor: “And - and what are the defendants jointly doing when they prohibit [the midwife] from coming? Well, [the midwife] is the person who [sic] they hired. The professional. The trained professional.”

Respondents’ attorney: “Your Honor, I object to the use of the word defendants. This is - is not a criminal trial.”

Prosecutor: “Did I say defendants? I - I so much apologize. And I - I want to take - I recluse [sic] - withdraw that from the record - respondents. Thank you. And I apologize. Respondents is the appropriate word. Thank you, [defense counsel]. What did the respondents do - and if I do that again, please scold me. All Right.”

Respondents’ attorney: “Okay.”

On appeal, the respondents claimed the prosecutor committed misconduct by referring to them as “defendants” and the trial court should have responded to what occurred.

The Court of Appeals disagreed. “[T]he prosecutor immediately acknowledged that ‘defendants’ was the wrong term, withdrew his use of the term, and acknowledged that ‘respondents’ was the appropriate term. The trial court had no need to respond to the error given that the prosecutor immediately conceded it and given that respondents’ lawyer did not seek any additional instructions based on the prosecutor’s conceded error.”

In addition, “this single misstatement took place amidst a lengthy closing argument during which the prosecutor repeatedly referred to respondents using the term ‘respondents,’” the Court of Appeals observed. “We, therefore, conclude that respondents were not denied a fair or impartial trial on the basis of the prosecutor’s single use of the term ‘defendants.’”

Further, “while we are not unaware of the needless impish tone of the prosecutor’s response to the objection, we do not believe that it rises to the level of misconduct,” the Court of Appeals said. “The prosecutor’s sarcastic comments were in response to the objection raised by respondents’ lawyer and they accurately conceded error. Thus, although the prosecutor’s response to the objection should have been stated in general terms, particularly in a case of such a serious nature, reversal is not warranted in this case.”

No Ineffective Assistance

The respondents also argued they were deprived of effective assistance of counsel during the dispositional hearing because their attorney appeared remotely via videoconferencing while the respondents were present in the courtroom.

Addressing this argument, the Court of Appeals pointed out that, at the beginning of the hearing, the prosecutor and guardian ad litem (GAL) introduced themselves, the respondents’ attorney indicated that he was “appearing by Zoom,” the respondents were present in the courtroom and there were no objections to the respondents’ attorney appearing by Zoom.

The Court of Appeals further explained that the court rules “expressly allow” for remote appearances during termination hearings. The appeals court cited MCR 3.904(B), which says in part:

“(B) Child Protective and Juvenile Guardianship Proceedings.

(1)   Except as provided in subrule (B)(2), courts may allow the use of videoconferencing technology by any participant, as defined in MCR 2.407(A)(1), in any proceeding. …”

Attorneys are “expressly included” in the definition of “participants,” the Court of Appeals said, citing MCR 2.407(A)(1). “Because the court rules explicitly allow for a lawyer representing a respondent-parent to appear by videoconferencing technology, it did [not] fall below an objective standard of reasonableness for respondents’ attorney to appear by Zoom. Moreover, to the extent that respondents argue that the trial court should not have allowed the dispositional hearing to proceed because respondents’ attorney was appearing by Zoom, in light of the court rule allowing for their lawyer to appear using videoconferencing technology, respondents cannot show any error, plain or otherwise.”

The Court of Appeals also found “unpersuasive” the respondents’ assertion that they were prejudiced because their attorney’s remote appearance prevented them from whispering questions and raising concerns to him. In reaching this conclusion, the appeals court cited In re Smith-Taylor Minors, ___ Mich App ___ (2021), noting the respondent in that case agreed to participate in child-protective proceedings by videoconference but later claimed the trial court erred by not informing her of the right to appear in person. The In re Smith-Taylor panel held: “Respondent failed to set forth any argument as to how the outcome of the proceedings would have been different had they taken place in-person. Accordingly, respondent has failed to establish that her due process rights were violated.”

Similar to the respondent in In re Smith-Taylor, the respondents in the present case “have not indicated how the outcome of the proceedings would have differed if their lawyer had been present in person at the termination hearing,” the Court of Appeals concluded. “Indeed, although they mention the inability to whisper to their lawyer, they fail to indicate what, exactly, might have been whispered. They also do not indicate what physical evidence their lawyer might have presented if he had appeared in person. As a result, they have not set forth any argument showing that the outcome of the proceedings would have been different if their lawyer had appeared in person.”