Justice quest 

Michigan judges: Even if you may be innocent, back to jail

A woman in prison for molesting her son, and who discovered new evidence supporting her innocence, should not have been granted a new trial, according to your state Supreme Court.

That's not exactly a point of view we saw in the justices' campaign commercials, was it? Once you're guilty, compelling evidence of your innocence is irrelevant?

But now, with two new justices on Michigan's loftiest bench, the woman's attorneys hope the court will reconsider last year's chilling ruling. If not, Swain's attorneys say she'll pursue relief in federal courts, "and that's an abdication of Michigan's responsibility to clean up its own messes," says David Moran, co-director of the Innocence Clinic at the University of Michigan Law School, which is representing her.

Nearly 19 months ago, Calhoun County Circuit Court Judge Conrad Sindt granted Lorinda Swain a new trial and released her from prison. She had served seven years of a 25- to 50-year sentence handed down in 2002 after she was convicted of molesting her adopted son Ronnie, then 13. The prosecutor's only evidence against her was the boy's since-recanted testimony that she repeatedly performed oral sex on him.

In July 2009, Swain's Innocence Clinic attorneys presented witnesses never called at the original trial; they testified that the abuse could not have taken place as originally alleged. Sindt's ruling in Swain's favor was based on the ineffectiveness of her original trial attorney, who failed to call the witnesses.

"He [Sindt] is clearly convinced this is a miscarriage of justice and he does not want to send this woman back to prison," Moran says.

Prosecutor Susan Mladenoff appealed Sindt's decision. The state Court of Appeals first sided with Swain, but reversed itself within days, saying court rules preclude trial judges from considering relief from judgment if the evidence was available at the time of trial. Never mind that Sindt reasoned her attorney was ineffective because he didn't present that evidence, not at all what the appellate court ruled.

Swain appealed to the state's highest court, which refused in a 4-3 December order to hear the case. Her attorneys filed for reconsideration earlier this month.

"We're just hoping we can convince just one more justice that it's wrong in Michigan or any state to say to anybody who has evidence of innocence that hasn't been presented before, 'Too bad.'" Moran says.

The argument remains the same, but the new make-up of the state Supreme Court could work in Swain's favor. Justice Alton Davis, who sided with the prosecutor, has been replaced by former Wayne County Chief Judge Mary Beth Kelly, and Gov. Rick Snyder last week appointed Brian Zahra to fill the seat vacated by Maureen Corrigan, who resigned to lead the state Department of Human Services. Corrigan had sided with Swain.

If the Supreme Court refuses again to hear the case, Swain will take her fight to federal court.

"It would be a black mark for Michigan if the Supreme Court takes the position that innocence doesn't matter and that she should go back to prison," Moran says.

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