Wayne County prosecutors have made an unusual move in a murder case that could be likened to calling defense attorneys to testify against their own clients.
Seven University of Michigan law students and a California journalist who was a U-M fellow are on the witness list submitted by assistant Wayne County prosecutor Bob Stevens in a case involving a Detroit man whose murder conviction was overturned last year.
Six of the students are or have been affiliated with the U-M Law School’s Innocence Clinic, which represents Dwayne Provience. Found guilty of murder in 2001 and sentenced to as much as 60 years in prison, the 36-year-old man’s conviction was overturned last year. But Provience is still fighting to retain his freedom as the prosecutor’s office presses on for the new trial.
Wayne County Circuit Judge Tim Kenny last year set aside Provience’s conviction in large part because of the work done by the U-M clinic students who found a related case in which Wayne County prosecutors asserted that two other men were responsible for the killing that landed Provience in prison. The Prosecutor’s Office has yet explain how it could defend making contradictory claims regarding who it believes really did the killing.
The Innocence Clinic students also found exculpatory evidence in police files that either wasn’t turned over to Provience’s original attorneys or wasn’t pursued by them.
Instead of dropping the case in the name of justice — as attorneys from the Innocence Clinic continue to urge — assistant prosecutor Stevens has raised the issue’s profile by calling as witnesses people legal experts say have traditionally been given protections against testifying.
In addition to the students affiliated with the Innocence Clinic, the prosecution lists a seventh student who is friends with a clinic student. The journalist named, Peggy Lowe of The Orange County Register in California, attended some sessions while she was a Michigan Journalism Fellow last year.
Innocence Clinic co-director David Moran says he’ll file a motion to strike the students and Lowe as witnesses and declines further comment. A hearing is scheduled for Monday, March 15.
Maria Miller, spokeswoman for the prosecutor’s office, also declines comment on the list.
The new trial is scheduled for April 5. Monday’s hearing was set to determine the progress on finding missing Detroit police files that both sides have said they’d like to see. Moran says he’ll now also be challenging the attempt to produce law students and the journalist Lowe as witnesses.
Some of the law students named as potential witnesses have argued in court on behalf of Provience. Michigan court rules allow law students, under the supervision of attorneys, to represent clients if the trial judge agrees.
Like regular attorneys, law students are covered by the attorney-client privilege that prevents them from divulging communications with a client or work they did related to a case, says Peter Henning, law professor at Wayne State University who specializes in criminal procedure.
He calls listing the students a “pretty aggressive” tactic.
“It does raise the question of is the prosecution simply clinging to the conclusion and not taking a second look at it as they should? It’s not just listing the clinic students as potential witnesses. It’s more the overall issue of are they evaluating the case fairly or are they simply responding out of pique?” he says.
Brian Peppler, the Chippewa County Prosecutor and president of the Michigan Prosecuting Attorneys Coordinating Council, says the students’ confidentiality could depend on what their role was in researching, preparing and defending the case.
“I’m sure some of what they know or have done is protected but maybe not necessarily all of it,” he says. “They kind of put themselves in a position like a police officer or a private investigator. I don’t think the privilege applies at that point.”
Margaret Raben, president of the Criminal Defense Attorneys of Michigan, says attorneys must list all potential witnesses because if they don’t, they can’t call them at trial.
“I would have to believe that the prosecutor’s office has some good faith basis for listing them, even if the law is more or less clear that they’re protected,” she says. “It’s my guess that the prosecutor’s office thinks they’ve got nothing to lose.”
Lowe, who isn’t an attorney, is in a different legal situation. Journalists are often covered by “shield laws” that offer them some protection from being compelled to testify. Michigan’s protects print and broadcast reporters from disclosing confidential sources or information in all but capital cases.
But Lowe attended clinic sessions while part of the prestigious Michigan Journalism fellowships, and one of the program’s provisions is that fellows do not publish during the nine months on campus, says Charles Eisendrath, program director. Fellows have status as university students and audit classes, he says, declining further comment on the issue.
Lowe, who won't comment on the case specifically, says she attended some clinic sessions as part of her interest in the intersection of law and politics.
Kenny will consider Moran’s motion to strike the witnesses at the hearing scheduled for 9 a.m. Monday.