Order Michigan Supreme Court
Lansing, Michigan
March 18, 2009 Marilyn Kelly,
Chief Justice
137419 & (83) Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman
Diane M. Hathaway,
Plaintiff-Appellant, Justices
v SC: 137419
COA: 271366
Presque Isle CC: 05-092269-FC
GARY EDWARD DAVENPORT,
Defendant-Appellee.
_________________________________________/
On order of the Court, the application for leave to appeal the August 28, 2008
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should now be reviewed by this Court. A
presumption of prejudice exists when a defendant’s former defense counsel joins the
prosecutor’s office that is pursuing the case against the defendant. MRPC 1.9(b), 1.10(b).
Such a presumption may be overcome, however, if the prosecutor shows that the attorney
who has a conflict of interest was properly screened out from “any participation in the
matter.” MRPC 1.10(b)(1). State v McClellan, 179 P3d 825 (Utah App, 2008), on which
the Court of Appeals therefore unnecessarily relied, is fully consistent with these
principles. The motion to stay is DENIED.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 18, 2009 _________________________________________
0311 Clerk