Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan
Opinion
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JUNE 12, 2001
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
Cross-Appellee,
v No. 114795
WILLIE GLASS, JR.,
Defendant-Appellee,
Cross-Appellant.
____________________________________
BEFORE THE ENTIRE COURT
(AFTER REMAND)
WEAVER, J.
Following his waiver of preliminary examination, the
defendant was bound over to Eaton Circuit Court on the charge
of conspiracy to deliver 650 or more grams of cocaine.
Defendant, who is black, seeks to challenge the composition of
the multicounty grand jury that indicted him, claiming that
the selection process systematically excluded blacks from the
multicounty grand jury. The prosecution responds that the
information it filed after defendant waived preliminary
examination purged any taint in the grand jury selection
process.
On remand from this Court, the Court of Appeals rejected
the prosecution’s argument and directed further proceedings on
the selection issue, including the unsealing and inspection of
certain grand jury documents that might be relevant to the
claim of racial discrimination in selection of the composition
of the grand jury.
We hold that this Court exceeded its criminal procedure
rulemaking authority in People v Duncan, 388 Mich 489; 201
NW2d 629 (1972), by creating a substantive right to a
preliminary examination for grand jury indictees. To the
extent that Duncan exceeded this Court’s rulemaking authority,
it is overruled and its implementing court rules are rejected.
As to defendant’s constitutional claims, we hold that he
has not established and cannot establish a prima facie case of
discrimination under either the Sixth or the Fourteenth
Amendment. It was, therefore, an abuse of discretion for the
Court of Appeals to order an in-camera inspection of the grand
jury record.
The judgment of the Court of Appeals is reversed in part,
and this case remanded to the circuit court for further
proceedings consistent with this opinion.
I
Upon a petition filed by Clinton, Eaton, and Ingham
County prosecutors, the Court of Appeals on January 13, 1995,
formed a multicounty grand jury under MCL 767.7b et seq. The
grand jury was given jurisdiction over the three counties.
The Court of Appeals order provided that the grand jury would
consist of seventeen jurors: six from Ingham County, six from
2
Eaton, and five from Clinton County. The court’s order
granted the prosecutors’ motion to suppress the grand jury
proceedings.
On April 27, 1995, the grand jury indicted the defendant
on a charge of conspiracy to deliver 650 grams or more of
cocaine.1 The indictment alleged that the conspiracy took
place in Eaton County. A felony warrant was issued by the
circuit judge on assignment by the Court of Appeals to the
multicounty grand jury. Defendant was apparently arraigned on
the indictment on May 12, 1995, and bond was set for
$150,000.2
On September 8, 1995, the defendant appeared in the 56th
District Court and waived preliminary examination on the
indictment. Defendant was bound over to the Eaton Circuit
Court, and his papers were filed with that court on September
11, 1995. Defendant waived arraignment in the Circuit Court
on September 27, 1995 or September 28, 1995.3
On September 29, 1995, the Eaton County prosecutor filed
an information in circuit court. The information was
identical to the indictment, again alleging conspiracy to
deliver 650 grams or more of cocaine. Attached to the
information was a list of witnesses. There is no record of
1
MCL 333.7401(2)(a)(i), 750.157a.
2
Court of Appeals Order Setting Bond and Remanding Case
to the 56-2 District Court for Further Proceedings.
3
Two copies of what appear to be one waiver arraignment
appear in the record with these dates stamped by the Eaton
County Clerk.
3
a complaint and warrant or a separate preliminary examination
or waiver in the district court before the filing of the
information.
Trial was scheduled and adjourned several times. On
February 21, 1996, the defendant moved to dismiss, alleging,
among other things, that the composition of the grand jury
violated his due process rights, his Sixth Amendment right to
a jury selected from a fair cross section of the community,
and his Fourteenth Amendment right to equal protection. As
the Court of Appeals summarized his allegations:
Specifically, defendant indicated that the
population of Clinton County is 3.85 percent
African-American and 13.8 percent of the total
population of the three counties, the population of
Eaton County is 3.56 percent African-American and
21.47 percent of the total population of the three
counties, and the population of Ingham County is
9.87 percent African-American and 65.16 percent of
the total population of the three counties.3
Defendant thus contended that this Court’s order
that five grand jurors be from Clinton County, six
from Eaton County, and six from Ingham County
amounted to a systematic overrepresentation of the
counties with the smallest African-American
population and a systematic underrepresentation of
the county with the largest African-American
population. Defendant further contended that if
proper percentages had been used, Clinton County
would have had two grand jurors, Eaton County would
have had four grand jurors, and Ingham County would
have had eleven grand jurors.4 In addition to
arguing for dismissal, defendant requested that the
trial court order the prosecution to produce a copy
of the petition for the establishment of the
multicounty grand jury.
__________________________________________________
3
These population figures are based on the
1990 census.
4
Defendant also attached to his motion two
affidavits from witnesses at the grand jury
proceedings who stated that there were no African
4
Americans on the seventeen-person grand jury.
___________________________________________________
[235 Mich App 455, 459-460; 597 NW2d 876 (1999).]
On March 12 and April 2, 1997, the circuit court held
evidentiary hearings on defendant’s motion to dismiss. The
Court of Appeals summarized the testimony at the hearing as
follows:
Those witnesses who did testify shed little
light on how the grand jury was selected and
whether African-Americans were excluded from the
grand jury.5 The Eaton County deputy clerk and
Ingham County deputy clerk indicated that their
juror questionnaire did not contain questions
pertaining to race. Both the Eaton County and
Ingham County deputy clerks indicated that they did
not know how the multicounty grand jury was
selected. A member of the Clinton County jury
board indicated that two panels of potential petit
jurors from Clinton County were assigned to the
multicounty grand jury pool. These panels were
formed by use of the Secretary of State’s list of
licensed drivers in Clinton County, mailing
questionnaires to the licensed drivers, and the
jury board’s review of the returned questionnaires
to determine who could sit on the jury panels.
Persons excluded were those who did not have
appropriate citizenship, had a documented physical
disability, were over the age of seventy, lacked
competency, were currently under conviction of a
felony; or served on a jury within the past twelve
months. The Clinton County juror questionnaire
also did not include questions about race.
__________________________________________________
5
We note that the Legislature requires that
the names of grand jurors shall be drawn in the
same manner and from the same source as petit
jurors. MCL 600.1326.
__________________________________________________
[Id. at 460-461.]
The circuit court denied defendant’s motion to dismiss on
the basis of racial discrimination in selection of the grand
jury, concluding that the defendant had failed to establish
5
that blacks were systematically excluded.
Defendant filed an application for leave to appeal from
that decision, which the Court of Appeals denied.4 The
defendant filed an application for leave to appeal to this
Court, and on September 25, 1997, we issued an order remanding
the case to the Court of Appeals for consideration as on leave
granted.
On remand, the Court of Appeals concluded that defendant
had not established a prima facie case of racial
discrimination under either the Sixth or Fourteenth Amendment
because he had not provided evidence regarding the racial
composition of the grand jury venire, had not shown that
underrepresentation of blacks was due to systematic exclusion
during the selection process, and had not shown that the grand
jury selection procedure was racially biased or susceptible to
abuse. Nevertheless, the Court of Appeals agreed with
defendant that the grand jury records should be unsealed so
that he might obtain evidence to support that claim.5 The
4
Unpublished order, entered July 21, 1997 (Docket No.
203592).
5
The Court said that the defendant should request the
grand jury record from the chief judge of the Court of
Appeals, who was to conduct an in-camera inspection and,
“certify the parts of the record bearing on the issue of
defendant’s claim of racial discrimination in the selection
and composition of the grand jury . . . .” 235 Mich App 473.
The Court directed a further evidentiary hearing in the
circuit court on defendant’s claims. The Court also lifted
part of the suppression order initially entered regarding the
grand jury records so as to permit additional testimony by
county officials or employees (some of whom had previously
refused to testify).
6
Court of Appeals dissent concluded that any errors in the
grand jury selection or proceedings were harmless because the
prosecutor proceeded by information in the circuit court.
II
Michigan law provides that criminal prosecutions may be
initiated in the court having jurisdiction to hear the cause
by either indictment or information. MCL 767.1 et seq.
Throughout the record in this case, there is confusion
regarding whether the defendant is in circuit court on the
indictment or the information.6 The record does reveal that
the prosecution filed an information in the circuit court
after the grand jury indictment had already been returned and
the defendant bound over. The effect of the prosecutor’s
decision to file an information after the defendant’s bindover
on the grand jury indictment has raised questions involving
the interplay of the statutes, case law, and court rules
governing informations and indictments. In our order granting
leave, we requested that the parties brief three issues in
addition to granting leave on the issues raised by the
6
At oral argument before this Court, the prosecution
indicated that no complaint and warrant had been filed and yet
seemed to argue that the information was validly filed in
circuit court, thus mooting any taint in the grand jury
proceeding. During a July 17, 1997, hearing on the
prosecution’s motion to endorse certain witnesses, the
prosecutor stated that she was “not moving to amend the
indictment.” At that same hearing however, defense counsel
included in a brief outline of this case’s procedural history
an “arraignment on the information.”
7
parties.7 A brief overview of Michigan’s two criminal
charging procedures provides context for the discussion and
conclusions that follow.
A
Criminal prosecutions may be initiated in the court
having jurisdiction over the charge upon the filing of an
information. MCL 767.1 et seq.; People v Simon, 324 Mich 450,
456; 36 NW2d 734 (1949). An information is predicated upon a
signed complaint and warrant. A complaint must state the
substance of the accusation and reasonable cause to believe
that the person accused committed the offense. MCL 764.1d.
The accused has a right to a preliminary examination
before the prosecutor files an information in the court having
jurisdiction to hear the cause. MCL 767.42. The accused and
the state are entitled to a “prompt” examination. MCL 766.1;.
The primary function of a preliminary examination is to
determine if a crime has been committed and, if so, if there
is probable cause to believe that the defendant committed it.
People v Bellanca, 386 Mich 712; 194 NW2d 863 (1972). As to
the timing of the preliminary examination, MCR 6.112(B)
7
We asked: (1) whether the prosecutor’s filing of an
information under MCR 6.112 after the defendant waived the
preliminary examination removed the taint of the alleged
racial discrimination in the selection of the grand jury that
indicted defendant, (2) whether MCR 6.112 conflicts with MCL
767.29, as construed in People v Curtis, 389 Mich 698; 209
NW2d 243 (1973), and (3) whether this Court properly exercised
its authority over criminal procedure in People v Duncan,
supra, to grant defendants indicted by grand juries the right
to a preliminary examination.
8
provides in pertinent part that
[u]nless the defendant is a fugitive from justice,
the prosecutor may not file an information until
the defendant has had or waives preliminary
examination.
Once an information has been filed, the prosecutor may not
enter a nolle prosequi “or in any other way discontinue or
abandon the same, without stating on the record the reasons
therefore and without leave of the court having jurisdiction
to try the offense charged, entered into its minutes.”
Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115, 120;
215 NW2d 145 (1974).8
Criminal prosecutions may also be initiated by grand jury
indictment. MCL 767.1 et seq.; MCR 6.112(B). Grand juries
may be convened over two or more counties upon petition filed
with the Court of Appeals by the Attorney General or by
prosecuting attorneys from each county named in the petition
and upon an order of the Court of Appeals. MCL 767.b. The
Court of Appeals may convene the requested grand jury if the
petition establishes probable cause to believe that a crime,
or portion thereof, has been committed in two or more of the
named counties and if the petition establishes that a grand
jury could “more effectively address” that alleged criminal
8
Genesee noted that MCL 767.29, which discusses
obligations of a prosecuting attorney upon any indictment,
also applies to prosecutions by information pursuant to MCL
750.10, which provides “the word ‘indictment’ includes
information.” Further, Genesee noted that MCL 767.2 provides
that all provisions of law applicable to prosecutions by
indictment shall in general apply to prosecutions by
information.
9
activity. MCL 767.7d.
There is no state constitutional right to indictment by
grand jury; rather, indictment by grand jury is an alternative
charging procedure created by the Legislature. In re Palm,
255 Mich 632; 238 NW 732 (1931). Grand juror names are “drawn
in the same manner and from the same source as petit jurors.”
MCL 600.1326. Indictment by grand jury establishes probable
cause that a crime has been committed. Vasquez v Hillery, 474
US 254; 106 S Ct 617; 88 L Ed 2d 598 (1986). If an indictment
is found, the foreperson presents the indictment to the court.
MCL 767.25(1). The presiding judge then returns the
indictment to the court having jurisdiction over the offense,
where it is filed. MCL 767.25(3), (4). A prosecutor is
prohibited from entering a nolle prosequi upon an indictment
or discontinuing or abandoning an indictment without stating
reasons on the record and without leave of the court having
jurisdiction over the charge. MCL 767.29. The court to which
the indictment is presented may issue a warrant for the arrest
of the person indicted. MCL 767.30.
Duncan, supra at 502, granted indictees the right to a
preliminary examination. In accordance with Duncan, MCR 6.110
provides a preliminary examination for a defendant indicted by
a grand jury. Consistent with MCL 767.2; MCR 6.112(A)
provides, except as otherwise provided by the court rules or
elsewhere, “the law and rules that apply to informations and
prosecutions on informations apply to indictments and
prosecutions on indictments.” MCR 6.112(B) also provides that
10
when an indictment is returned and filed before a defendant’s
preliminary examination, “the indictment may substitute for
the complaint and commence judicial proceedings.”9 The
provision of subsection (B) reflects the requirement of
Duncan, supra, that grand jury indictees be afforded a
preliminary examination.
B
The confused procedural posture of this case raises
fundamental questions regarding Michigan’s current dual
charging procedures. As noted above, the indictment had been
returned to circuit court and the defendant had waived
preliminary examination in district court before the
prosecutor filed the information in Eaton Circuit Court.
There was no complaint and warrant filed to support the
information. Nor did the prosecutor seek to abandon or
9
This procedure, established by court rule and case law,
is unique to Michigan. While our research reveals that
twenty-eight states generally allow prosecutions by
information or indictment and four other states require
indictment by grand jury only in cases involving the most
serious felonies, only Michigan and Oklahoma, Okla Stat, tit
22, § 524; see also Stone v Hope, 488 P2d 616 (Okla Crim App,
1971), grant a defendant a right to a preliminary examination
following indictment. Lafave, Israel & King, Criminal
Procedure (2d ed), § 15.1(e), (g), pp 239-240, 250-252.
Although Oklahoma allows for a second determination of
probable cause, the indictment remains the charging document.
In Oklahoma, the grand jury returns the indictment to the
trial court. A copy of the indictment is filed with the
magistrate for preliminary examination purposes. Any
resulting bindover is on the indictment. The prosecutor may
not replace the indictment with an information. Cunningham v
Tulsa Co Dist Court, 399 P2d 57 (Okla Crim App, 1965).
Michigan thus stands alone in treating the indictment as a
mere pleading that initiates criminal proceedings.
11
discontinue the indictment.10 Consistent with MCR 6.112(B),
the prosecutor treated the grand jury indictment as nothing
more than a complaint initiating criminal proceedings, despite
MCR 6.112 (A) and MCL 767.2, which treat indictments as
equivalent to informations. As a result of this confusion, we
asked the parties to brief
whether this Court properly exercised its authority
over criminal procedure in People v Duncan, 388
Mich 489 (1972), to grant defendants indicted by
grand juries the right to a preliminary
examination. [461 Mich 1005.]
As noted above, Duncan provided grand jury indictees with
the right to a preliminary examination after indictment. The
Court then adopted implementing court rules, MCR 6.110 and MCR
6.112. Pursuant to Const 1963, art 6, § 5, this Court has
exclusive authority to determine the rules of practice and
procedure. McDougall v Schanz, 461 Mich 15, 26; 597 NW2d 148
(1999). However, this Court’s constitutional rulemaking
authority extends only to matters of practice and procedure:
[T]his Court is not authorized to enact court
rules that establish, abrogate, or modify the
substantive law. [Id. at 27.][11]
10
MCL 767.29 states that the prosecutor shall not
discontinue or abandon the indictment “without stating on the
record the reasons for the discontinuance or abandonment and
without the leave of the court having jurisdiction to try the
offense charged, entered in its minutes.” We asked the
parties to brief “whether MCR 6.112 conflicts with MCL 767.29,
as construed in People v Curtis, 389 Mich 698 [209 NW2d 243]
(1973).” Because the indictment was not abandoned in this
case, it is not necessary or appropriate to explore the
interplay of Curtis and MCR 6.112.
11
Contrary to the dissent’s assertion, McDougall in no
way limits this Court’s constitutional authority to prescribe
procedural rules that vindicate constitutional rights; rather,
12
We now address whether Duncan and the implementing court rules
were a proper exercise of the Court’s rulemaking authority.
Despite acknowledging that indicted defendants
historically did not receive a preliminary examination, and
that no statute so provided, Duncan declared such a right on
the basis of policy. Regarding the significance of
preliminary examination Duncan opined that “[t]here may well
be serious questions of equal protection and due process
involved in the present Michigan procedure . . . since it
denies to an accused indicted by a multiple-man grand jury
what has become recognized as a fundamental right in most
criminal cases—the right to a preliminary examination.” Id.
at 502. Duncan expressly declined to rely on due process
principles in creating the right to a preliminary examination
for indictees. Rather than addressing those constitutional
questions, this Court seized upon its “inherent power” to deal
with the situation as a matter of criminal procedure and
granted all defendants accused of a felony the right to a
preliminary examination, even in those cases following
indictment by a grand jury. Id.12 Rather than following the
statutory scheme pertaining to prosecutions by indictment,
Duncan instead rewrote it. We are persuaded that Duncan and
the implementing court rules exceed this Court’s rulemaking
McDougall only precludes the promulgation of procedural rules
contrary to legislative enactments that involve
nonconstitutional substantive policies.
12
Therefore, the dissent’s suggestion that Duncan relied
on due process principles is incorrect.
13
authority. As this Court previously recognized:
The measure of control exercised in connection
with the prevention and detection of crime and
prosecution and punishment of criminals is set
forth in the statutes of the State pertaining
thereto, particularly the penal code and the code
of criminal procedure. The powers of the courts
with reference to such matters are derived from
statutes. [People v Piasecki, 333 Mich 122, 143; 52
NW 626 (1952).][13]
The establishment of the right to a preliminary examination
is more than a matter of procedure and beyond the powers
vested in the Court by Const 1963, art 6, § 5; it is a matter
of public policy for the legislative branch. Shannon v Ottawa
Circuit Judge, 245 Mich 220, 222; 222 NW 168 (1928); People v
Piasecki, supra; Glancy v Roseville, 457 Mich 580, 590; 577
NW2d 897 (1998). Duncan and MCR 6.112(B) are also
inconsistent with MCL 767.2, which provides for equivalency in
the law between indictments and informations.
We reverse Duncan, insofar as it afforded indictees the
right to a preliminary examination. Additionally, we hold
that the information filed in this case is null and void
because it was filed pursuant to the invalid scheme set forth
in MCR 6.112(B) that purported to allow an indictment to
substitute for a complaint. There was no complaint stating
the substance of the accusation or reasonable cause to believe
the accused committed the offense as required by MCL 764.1d,
nor was there a preliminary examination on a complaint as
13
Obviously, this Court’s authority regarding the rules
of practice and procedure derives from Const 1963, art 6, § 5,
and is not subservient to the Code of Criminal Procedure.
McDougall, supra pp 26-27.
14
required by MCL 767.42. Finally, the prosecution never sought
to discontinue the indictment under MCL 767.29. Because the
information is null and void, we do not address the effect a
properly filed information might have on a previously returned
indictment.14 This case stands filed in the circuit court on
the grand jury indictment. We next address the defendant’s
constitutional challenges to the grand jury proceedings.
III
The grand jury was composed of seventeen people, six from
Ingham County, six from Clinton County, and five from Eaton
County. Defendant alleges that this composition violated his
right to equal protection under the Fourteenth Amendment and
his Sixth Amendment right to a fair cross section on the grand
jury venire.
A
Defendant alleges that the seventeen member tricounty
grand jury makeup of 6-6-5 from Clinton, Ingham, and Eaton
Counties respectively violated his right to equal protection
under the Fourteenth Amendment. There is no right to have a
particular grand jury reflect the precise racial composition
14
Further, we asked the parties to brief:
[W]hether the prosecutor’s filing of an
information under MCR 6.112 after defendant waived
the preliminary examination removed the taint of
the alleged racial discrimination in the selection
of the grand jury that indicted defendant . . . .
[461 Mich 1005.]
Because we hold the information is null and void, this
harmless error issue is no longer relevant.
15
of a community. Akins v Texas, 325 US 398; 65 S Ct 1276; 89
L Ed 1692 (1945). Furthermore, discriminatory effect is
insufficient to establish a violation of the Fourteenth
Amendment; defendant must show discriminatory intent. People
v Ford, 417 Mich 66, 103; 331 NW2d 878 (1982); Arlington Hgts
v Metro Housing Dev Corp, 429 US 252, 265; 97 S Ct 555; 50 L
Ed 2d 450 (1977); Washington v Davis, 426 US 229, 242-243; 96
S Ct 2040; 48 L Ed 2d 597 (1976). “Such an effect may permit
an inference of an unlawful purpose, but, standing alone, it
is not conclusive on the question whether governmental
activity is racially discriminatory.” Ford, supra at 103.
In order to establish a prima facie case of racial
discrimination in the selection of a grand jury under the
Fourteenth Amendment, in addition to showing discriminatory
purpose, defendant must show that the grand jury selection
procedure resulted in a “substantial underrepresentation of
his race.” Castaneda v Partida, 430 US 482, 494; 97 S Ct
1272; 51 L Ed 2d 498 (1977). Castaneda articulated three
steps to establish substantial underrepresentation. The
defendant must show 1) that he belongs to a recognizable,
distinct class singled out for different treatment under the
laws as written or as applied; 2) that there was significant
underrepresentation of that distinct class over a significant
period of time; and 3) that the selection procedure was
susceptible of abuse or that it was not racially neutral. Id.
at 494. Once a defendant establishes a prima facie case, the
burden shifts to the state to rebut the inference of
16
intentional discrimination. Id. at 495.
We agree with the judgment of the Court of Appeals that
defendant has not presented a prima facie case of
discrimination under the Fourteenth Amendment.15 We go further
and hold that defendant will be unable to establish a prima
facie case upon further review of the grand jury proceedings
because he will be unable to establish a discriminatory
purpose. Defendant does not challenge the manner in which the
jury impaneling was implemented. Defendant’s claim is
premised solely upon the allegedly disparate effect of the 6
6-5 composition of grand jurors from the three counties chosen
by the Court of Appeals. Defendant does not present any
evidence suggesting a discriminatory purpose, and nothing in
the grand jury records could conceivably aid defendant in his
effort to prove that the Court of Appeals acted with
discriminatory purpose in establishing the 6-6-5 split.
The possibility of an adverse effect on the
representation of blacks resulting from the 6-6-5 composition
is relevant to discriminatory purpose, but is insufficient
alone to establish that it was a purposeful device to exclude
blacks from the grand jury. Washington, supra at 239. We
therefore conclude that defendant will be unable to establish
a prima facie case of a discriminatory purpose in violation of
15
We agree with the Court of Appeals that a defendant can
challenge the grand jury selection process on Fourteenth
Amendment equal protection grounds, notwithstanding MCL
767.13, 767.14, which the prosecutor argued precluded such
challenges.
17
the Fourteenth Amendment.
B
Defendant also alleges that the 6-6-5 composition of the
grand jury denied him his Sixth Amendment right to an
impartial jury drawn from a fair cross section of the
community. To establish a prima facie violation of the fair
cross section requirement, “a defendant must show that a
distinctive group was underrepresented in his venire or jury
pool, and that the underrepresentation was the result of
systematic exclusion of the group from the jury selection
process.” People v Smith, 463 Mich 199, 203; 615 NW2d 1
(2000), citing Duren v Missouri, 439 US 357; 99 S Ct 664; 58
L Ed 2d 579 (1979).16
A preliminary issue is whether the fair cross section
requirement applies to state grand jury venires. The Court of
Appeals assumed it did, but this is the first state decision
to hold that a defendant may challenge the grand jury
selection process on the basis of the fair cross section
requirement. 235 Mich App 465-466. It is well-established
that the Sixth Amendment fair cross section requirement
applies to state petit jury venires. Taylor v Louisiana, 419
16
In People v Smith, we held that no method for measuring
whether representation was fair and reasonable should be used
exclusively, but rather we adopted a case by case approach.
We stated, “[p]rovided that the parties proffer sufficient
evidence, courts should consider the results of all the tests
in determining whether representation [on the venire] was fair
and reasonable.” Id at 204.
18
US 522; 95 S Ct 692; 42 L Ed 2d 690 (1975).17 However, the
Fifth Amendment does not require grand juries in state
prosecutions, Hurtado v California, 110 US 516; 4 S Ct 111; 28
L Ed 232 (1884), and the United States Supreme Court has not
imposed the fair cross section requirement on states that
allow indictment by grand jury. See Castaneda, supra at 509
510 (Powell, J., dissenting). The Sixth Circuit has held that
due process for the purposes of state grand jury selection
does not include the fair cross section requirement. Ford v
Seabold, 841 F2d 677, 687-688 (CA 6, 1988).
We need not decide whether Michigan should apply the fair
cross section requirement to grand jury venires in this case
because defendant has failed to allege a cognizable fair cross
section claim. Defendant contends that Ingham County
residents were underrepresented on the basis of the 1990
census figures. He argues that Ingham County should have had
eleven positions on the grand jury rather than six. Defendant
argues that the underrepresentation of Ingham County residents
had the effect of systematically underrepresenting blacks.
However, the fair cross section requirement does not guarantee
that any particular jury chosen will literally mirror the
community; rather, “jury wheels, pools of names, panels, or
venires from which juries are drawn must not systematically
exclude distinctive groups . . . and thereby fail to be
17
The right to a fair cross section in federal grand jury
venires is derivative of the Fifth Amendment and 28 USC 1861.
Id. at 528-529.
19
reasonably representative thereof . . . .” Smith, supra at
214 (opinion of Cavanagh, J.). Because defendant’s challenge
is relevant to the make up of his particular grand jury, he
cannot succeed on his claim.
C
Next we address whether the Court of Appeals erred when
it ordered an in-camera inspection of the record bearing on
the claim of racial discrimination in the selection and
composition of the grand jury and lifted part of the
suppression order initially entered regarding the grand jury
records so as to permit additional testimony by county
officials or employees. The Court of Appeals reasoned: “in
order to establish evidence, if any, of his claim of racial
discrimination under the Sixth or Fourteenth Amendments, there
must be some access to the record or other evidence regarding
the selection and composition of the grand jury.” 235 Mich
App 472. The Court of Appeals concluded that there was no
compelling reason to suppress information relating to “the
racial composition of the multicounty grand jury venire and
the grand jury, and the selection procedures used that
produced the grand jury that indicted him.” Id. at 473. The
Court of Appeals vacated its previous suppression order “to
the extent that defendant’s claim . . . can be explored and
testified about by county officials or employees (such as
those who would not previously testify).” Id. at 474.
Upon our review of defendants’ constitutional claims, we
are resolved that the Court of Appeals abused its discretion
20
by ordering the in-camera review and lifting the order of
suppression. As in People v Wimberly, 384 Mich 62; 179 NW2d
623 (1970), we are faced with a conflict between the
traditional reasons for secrecy of grand jury proceedings and
the desirability of discovery. Because defendant cannot, upon
further discovery, establish a prima facie case under either
the Fourteenth or Sixth Amendment, we hold that the reasons
for secrecy of grand jury proceedings outweigh the
desirability of further discovery.
IV
The judgment of the Court of Appeals is reversed, and
this case is remanded to the circuit court for proceedings
consistent with this opinion.
CORRIGAN , C.J., and YOUNG, and MARKMAN , JJ., concurred with
WEAVER , J.
21
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
Cross-Appellee,
v No. 114795
WILLIE GLASS, JR.,
Defendant-Appellee,
Cross-Appellant.
____________________________________
TAYLOR, J. (concurring in part and dissenting in part).
I agree with the majority’s conclusion that the Court of
Appeals erred in ordering further proceedings regarding the
grand jury records. I also agree with the majority that this
Court exceeded its criminal procedure rulemaking authority in
People v Duncan, 388 Mich 489; 201 NW2d 629 (1972), by
creating a substantive right to a preliminary examination for
grand jury indictees and that Duncan’s implementing court
rules should be rejected. The fact that Duncan and MCR
6.112(B) are inconsistent with MCL 767.29 supports overruling
Duncan and rejecting the implementing court rules.
However, unlike the majority, I would overrule Duncan and
its implementing court rules prospectively. In my judgment,
the prosecution was entitled to rely upon MCR 6.112(B), and
file the information. Defendant’s subsequent waiver of a
preliminary examination on the information purged any taint in
the grand jury proceedings. Because the alleged taint was
purged,1 I find it unnecessary to reach the constitutional
issues decided in part III of the majority opinion. Because
I would reject MCR 6.112(B) and overrule Duncan prospectively,
I cannot agree with the majority that this case stands in
circuit court on the grand jury indictment rather than the
information. Having waived a preliminary examination
defendant effectively conceded circuit court jurisdiction to
hold him for trial by information.
1
I believe this holding is consistent with Vasquez v
Hillery, 474 US 254; 106 S Ct 617; 88 L Ed 2d 598 (1986),
because the United States Supreme Court affirmed a lower court
ruling that allowed defendant Hillery to stand trial,
notwithstanding a discriminatorily empaneled grand jury, upon
the filing of a “new charging document.” See Hillery v
Pulley, 563 F Supp 1228, 1252 (ED Cal, 1983). Thus, even if
defendant Glass’ grand jury was empaneled in a discriminatory
fashion, Glass is in the same position as Hillery was, i.e.,
facing a charge under a new charging document.
2
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
Cross-Appellee,
v No. 114795
WILLIE GLASS JR.,
Defendants-Appellee,
Cross-Appellant.
________________________________
CAVANAGH, J. (dissenting).
This case is yet another example of what has become a
favored process of overruling established precedent. By
overruling the part of People v Duncan, 388 Mich 489; 201 NW2d
629 (1972), that affords indictees the right to a preliminary
examination, the majority has stripped criminal defendants of
a necessary procedure in Michigan’s criminal process. In
addition to its disregard for Michigan precedent, the majority
predicts that the defendant “will be unable” to prove his
equal protection claim if given access to the grand jury
records, when the majority has not read the content of those
records. Because I would not overrule Duncan and would affirm
the Court of Appeals decision to unseal the grand jury records
so that defendant might obtain evidence to support his
constitutional claims, I respectfully dissent.
I
The majority states that in Duncan, this Court exceeded
its rulemaking authority under Const 1963, art 6, § 5. The
majority reasons that the right to a preliminary examination
is substantive and policy based. Therefore, the majority
believes that this case involves more than a matter of
procedure, and should be decided on the basis of the will of
the Legislature. Thus, the majority claims that Duncan can be
lightly cast aside as an usurpation of legislative power.
However, the text of Const 1963, art 6, § 5 clearly states the
principle recognized by Duncan, that this Court has the
exclusive power to establish rules of procedure.
Quoting the section from Duncan that discussed the
possible equal protection violations in Michigan’s criminal
procedure without affording an indictee the right to a
preliminary examination, the majority summarizes the “policy”
concerns this Court expressed when it established the right.
Slip op at 15. I disagree that due process considerations are
“policy” concerns that we may not address when invoking our
constitutional authority to establish procedure and that must
be left to the Legislature. Due process considerations play
a role in both procedural and substantive aspects of the law,
thus making it difficult to avoid balancing substantive
concerns when we implement procedures. The majority, however,
expands its abdication of judicial authority in McDougall v
Schanz, 461 Mich 15; 597 NW2d 148 (1999), by defining the due
2
process policy considerations we discussed in Duncan as
substantive law and strictly within the province of the
Legislature. This expansion of McDougall effectively
eradicates our ability to weigh due process concerns when
using our constitutional authority to establish procedure and
shrinks the constitutional boundary that separates our
rulemaking powers from those of the Legislature. Thus, I
raise the concerns I articulated in my dissent from McDougall:
what procedures, then, may this Court establish under Const
1963, art 6, § 5? Under the majority’s view in this case, “the
Legislature would appear free to control any aspect of the
judicial function it wishes, save perhaps the scheduling of
dockets.” McDougall at 59, n 26. Moreover, the majority’s
view raises the issue whether we must revisit all previous
established court rules to determine whether there were
“improper” policy considerations made behind them.1
The valid concerns that we addressed in Duncan describe
the substantive consequences that follow from the absence of
a preliminary examination after a grand jury indictment.
Thus, it seems the establishment of the right to a preliminary
examination after a grand jury indictment effectuates
substantive justice by dismissing equal protection concerns
1
As I stated in my dissenting opinion in McDougall at
59:
So we must wonder exactly how many of our
court rules deal with items that might evoke
considerations other than judicial dispatch, and
thus be subject to alteration on the basis of those
considerations, evidencing decisions of
“substantive” law by the Legislature.
3
and assuring due process for criminal defendants. The
majority fails to separate the preliminary examination’s basic
procedural nature in Michigan’s criminal process from the
procedure’s substantive effects and concludes that the
establishment of a preliminary examination is more than a
matter of procedure. Slip op at 16. Contrary to the
majority’s conclusion, however, just because this Court used
its constitutional power to establish a procedure in
Michigan’s criminal process that has the effect of assuring
substantive justice does not magically change the nature of
the procedure to that of a substantive right.
In People v Bellanca, 386 Mich 708; 194 NW2d 863 (1972),
this Court addressed whether a criminal defendant faced with
perjury charges before a one-man grand jury was entitled to
the transcripts of witness testimony before that one-man grand
jury. Although the Legislature had allowed access to such
transcripts in a traditional grand jury situation, no such
right was established in a one-man grand jury situation. This
Court held that regardless of the Legislature’s failure to add
the right to grand jury transcripts in the statute governing
one-man grand juries, both types of grand juries are of equal
importance, and the reasoning behind allowing the right in the
traditional grand jury setting applied in the one-man grand
jury setting. This Court then proceeded to discuss what the
majority in this case would likely label as mere “policy”
concerns behind establishment of this right: because a
criminal defendant is entitled to effective assistance of
counsel at this stage, to be truly effective, “counsel must be
4
properly prepared for cross-examination of the prosecution’s
witnesses and thus he must have access to the testimony of
such witnesses before the grand jury touching on matters in
issue at the examination.” Bellanca at 714. Accordingly,
this Court held that “a defendant charged with perjury before
a ‘one-man grand jury’ must have access to the transcripts of
the testimony of all witnesses for or against him given before
the ‘one-man grand juror’ in order to be accorded due
process.” Id. at 712. To implement this holding, this Court
treated the establishment of the right to grand jury records
as a procedure and created MCR 6.107.2
Thus, in Bellanca, substantive concerns of due process
pushed this Court to use its constitutional authority to
establish a procedure in Michigan’s criminal process, the
right to transcripts from the grand juror proceeding, which
had the substantive effect of assuring due process. I do not
doubt that, given the proper factual scenario, the majority
would jump at an opportunity to strip yet another right
afforded criminal defendants and overrule Bellanca, claiming
we exceeded our rulemaking authority by creating a substantive
right that is policy based. However, until that day, Bellanca
2
MCR 6.107(A) states:
Whenever an indictment is returned by a grand
jury or a grand juror, the person accused in the
indictment is entitled to the part of the record,
including a transcript of the part of the testimony
of all witnesses appearing before the grand jury or
grand juror, that touches on the guilt or innocence
of the accused of the charge contained in the
indictment.
5
remains primary authority for the proposition that this Court
may validly establish procedures, while considering the
substantive effects of such procedures, under Const 1963, art
6, § 5. I, therefore, would hold that this Court was
completely within its constitutional rulemaking authority in
Duncan when it established that indictees are entitled to a
preliminary examination.
II
I also dissent from the majority’s holding that it was an
abuse of discretion for the Court of Appeals to order an in
camera inspection of the grand jury record. The purpose of
the in-camera inspection was to allow defendant access to any
possible evidence proving race discrimination. The majority
denies defendant access to the grand jury record because it
claims not only did defendant fail to prove a prima facie case
of discrimination, but defendant will be unable to prove
discrimination even with access to the record. In making this
conclusion, the majority correctly states the requirements for
proving a Fourteenth Amendment violation, which I agree
defendant has not met. However, the majority takes its
conclusion one step further and projects that defendant will
be unable to prove a prima facie case because “upon further
review of the grand jury proceedings . . . he will be unable
to establish a discriminatory purpose.” Slip op at 19. To
support its prediction of defendant’s future inability to
prove discriminatory purpose, the majority states that
defendant’s claim is currently premised on the disparate
impact of the 6-6-5 grand jury composition, which is
6
insufficient alone to prove discriminatory purpose. Slip op
at 19-20.
The majority’s reliance on this reason to support its
prediction is misplaced because it is based solely on what was
lacking in defendant’s first attempt to prove the prima facie
case. The evidence defendant has presented thus far and why
it fails to prove a prima facie case of discrimination is
irrelevant to what the grand jury records may provide in the
future to prove the same claim.
Without the benefit of reading any additional information
the grand jury record might provide, the majority hangs its
hat on evidence that again has already been presented. Unlike
the majority, I refuse to speculate on what evidence the grand
jury records may contain. Perhaps the majority is correct and
the record would reveal absolutely nothing to aid defendant in
his constitutional claims. However, the majority could also be
wrong, as the record would show how the grand jury venire was
selected and thus could aid defendant in proving
discriminatory intent behind the manner in which the grand
jury was selected or composed. Whatever the result may be if
defendant could investigate the record, however, cannot be
predicted when we have not reviewed the record ourselves.
Contrary to the majority’s position, I recognize that our
mission to rule justly, although time-consuming on certain
occasions, should not be easily cast aside simply because the
journey to such a result may come up fruitless. We should not
shut down the avenues available to a defendant seeking a just
result, especially on the basis of an unfounded prediction
7
that defendant will not prevail. I, therefore, would affirm
the Court of Appeals conclusion that, although defendant did
not prove a prima facie case, he is entitled to a remand to
unseal the grand jury record to obtain any evidence it may
contain to support his constitutional claims.
KELLY , J., concurred with CAVANAGH , J.
8
People v. Glass
Court: Michigan Supreme Court
Date filed: 2001-06-12
Citations: 627 N.W.2d 261, 464 Mich. 266
Copy Citations