Calling it an act of “last resort,” Wayne County Circuit Judge Tim Kenny told defense attorneys Wednesday that if Detroit police don’t produce missing files, he’ll step in.
“If there is a problem with you being ignored by the Detroit Police Department,” he said during a motion hearing, “then I would intervene.”
Kenny did not make clear what he would do were he to “intervene” except to ask that police show up at a hearing later this year if the files are not found. Police representatives were not in court to give their side.
But attorneys and law students from the University of Michigan Innocence Clinic have asked that if they do not receive information from the files, that a jury be instructed to assume the missing evidence proves their client did not commit the crime.
“The court has discretion to grant a remedy for the prosecution’s failure to comply. The court has the discretion to order the exclusion of testimony or evidence relating to that discovery request or order,” they wrote in a motion asking for sanctions.
The attorneys and students from the law school clinic want to review Detroit investigators’ files from the two murder cases because they believe they could contain information that could help clear their client, Dwayne Provience.
Assistant Wayne County Prosecutor Bob Stevens says he hasn’t seen the files either, despite asking that they be located in the department’s storage facility in the Upper Peninsula.
“That’s the police department’s problem, not mine,” he said.
Provience was convicted in 2001 of shooting Rene Hunter on Detroit’s northwest side and served nearly nine years before Kenny last year granted him a new trial, ruling that information that should have been turned over to his then-defense attorney was not.
Stevens maintains Provience will be retried and says he is preparing his case against him.
But Provience’s attorneys and law students working with them have found records that were not turned over to Provience’s defense before his 2001 trial that they say help clear him.
Among them is a statement from another Detroit man that two other men shot and killed Hunter, and motor vehicle records that show one of those men owned a vehicle that matched the description that witnesses to the shooting gave police including three digits of its license plate.
“Every time we shake a file, something exculpatory falls out,” said Bridget McCormack, co-director of the Innocence Clinic.
Because Provience’s defense attorney at the time did not have the information — as required by court rules — he could not question another witness about discrepancies between his testimony and the other people who saw the shooting.
That witness, Larry Wiley, an admitted crack-user, was the prosecution’s main witness against Provience, but Wiley has since said police forced him to testify.
Kenny also ruled Wednesday that transcripts of Wiley’s testimony could not be introduced at Provience’s new trial in lieu of his actual testimony in court.
That will give Provience’s attorneys the opportunity to question him about his conflicting testimony.
Kenny set a hearing for March 5 where attorneys will advise him if police have found and shared the files.
Provience, meanwhile, is free on bond and on a tether. He must be at his mother’s house when he is not at one of his two jobs.