The chief judge of Wayne County Circuit Court has urged Gov. Jennifer Granholm to commute the life prison sentence of a former Westland woman who was convicted in 1993 of killing her boyfriend as he slept.

"Unfortunate cases such as this bring home the fact that our legal system is not perfect, as well that the appellate process does not cure each imperfection," Judge Mary Beth Kelly wrote Monday in a two-page letter to Granholm...

Hargrave-Thomas, 53, who is free on bond, was convicted of first-degree murder in a bench trial in 1993 for stabbing Joseph Bernal, 42, through the heart in the bedroom of his Westland home in 1991. A prosecutor argued that Hargrave-Thomas was enraged because Bernal had changed his mind about marrying her.

Let's look at the facts:

1.  The case heard by Judge Kelly, In re Clemons, never reached the Michigan Supreme Court.  
   
2.  The comments attributed to Justice Corrigan were contained in a difference case and concerned appointment of counsel.  Justice Corrigan never accused Judge Kelly of abuse of power.
   
3.  In re Clemons was not a typical termination of parental rights based on neglect, but rather it concerned a guardianship adoption matter.
   
4.  In an odd turn of events, the Court of Appeals conducted their review of the case without benefit of briefs from all parties.  Because the State failed to file a brief, the Appellate panel took as gospel the information contained in the brief submitted by the parent whose child was adopted by the guardian.  The brief was replete with inaccuracies.
   
5. Judge Kelly asked questions of the respondent because she appeared in court without counsel - this is normal practice.  

Before we all grab our torches and fall into line behind Maryland Farmer, who's clearly ready to burn Judge Kelly at the virtual stake, may I suggest that we actually READ these opinions? And do a little more research into Judge Kelly's record?

First, let's look at Maryland Farmer's statement that "The Court of Appeals opinion details a chilling abuse of power, an abuse that conservative Supreme Court Justice Maura Corrigan later labeled, "disturbing." See In re Hudson, 483 Mich. 928, 938, 763 N.W.2d 618, 627 (2009) (Corrigan, concurring)."

So you could be forgiven for thinking that Justice Corrigan was writing about Judge Kelly. Actually -- she wasn't. The Hudson case was from another court, in Clinton County. Judge Kelly didn't preside in that case. Justice Corrigan was not writing about her.

But let's give our Maryland friend the benefit of the doubt and assume that what he/she meant is that Justice Corrigan had a problem with not appointing counsel for parents who are respondents in child abuse and neglect cases. Is Justice Corrigan's position the position of the entire Supreme Court?

Um, not really. In fact, it's not a settled question, as we in the law biz like to say.

From the same order -- this time, Justice Robert Young writing:

... Justice Corrigan makes the stunning announcement that she "question[s] whether the failure to appoint counsel to represent respondents throughout such proceedings can ever be harmless error."18  Justice Corrigan's query suggests a structural error analysis beyond any existing precedent. Such a standard goes well beyond the due process right to counsel even in criminal proceedings.  In a criminal proceeding, a defendant has a due process right to appointed counsel only in cases that may result "in the defendant's loss of personal liberty."19  Even then, the denial of counsel only amounts to structural error when it occurs during a critical stage in the proceedings.20

Judges disagreeing on a point of law?? Who knew! Yes, Virginia, judges can and do disagree over many legal issues. That's why we have courts and appellate courts. The right call isn't always as clear as we'd like to think. In fact, that's how two brilliant jurists, Justice Corrigan and Justice Young, can take conflicting positions on a legal issue. It's not that easy, folks.

So now, let's turn to the Clemons case -- which, unlike Hudson, is a case in which Judge Kelly actually presided.

For the sake of brevity, let's look at two accusations Maryland Farmer makes, after we strip all the purple prose away: One, Judge Kelly should have, but did not, appoint a lawyer for the parent whose parental rights were at stake in a child abuse case.  And two, the judge acted wrongly by asking questions. So we should be asking: Is there any Michigan legal precedent that states that a parent in a termination of parental rights case is entitled to a lawyer at taxpayer expense?

Um, no. Please see Justice Young's comment from the Hudson case above. This is uncharted legal territory. No Michigan appellate court has ever held, as a matter of legal precedent, that a parent facing loss of his or her parental rights in a case of child abuse or neglect is entitled to taxpayer-funded counsel. Because that's what we're really talking about here. "Right to counsel" often means "right to counsel paid for by someone else." We have decisions that state that, as a matter of constitutional rights, defendants in criminal cases who can't afford a lawyer are indeed entitled to appointed counsel. Separate issue.

Let's take a few minutes and look for Michigan Supreme Court cases that hold that the same is true for parents who are facing loss of their parental rights in child abuse cases. You folks take your time ... I'll be here when you come back.

{Hums}

What? No luck? How about published Michigan Court of Appeals cases? Nothing there either? (And remember, unpublished Court of Appeals cases are not binding precedent on Michigan courts. In fact, you'd be forgiven for asking why the Court of Appeals decided not to publish its decision in Clemons. Could it be they didn't think their ruling should be legally binding on lower courts?)

So ... Judge Kelly wasn't acting in defiance of the law, was she? Because this is a still-unsettled question, an issue of constitutional law that our Michigan Supreme Court has never decided. But Judge Kelly is supposed to cut new legal territory on her own, without regard for precedent or the rule of law? This she declined to do. I'm fine with that. In fact, I'd be worried if she, as a trial court judge, didn't defer to the higher courts.

Now let's look at the second accusation: the judge did something bad when she asked witnesses questions. Ordinarily, this would be a job for the parent's attorney. But remember, the parent showed up without one. Not blaming the parent -- but if there's no attorney, how to get to the bottom of things? Well, there are witnesses. You ask questions of them. And that's what the judge did.

Was it a perfectly handled case? Ask yourselves if the court system is perfect. Where's the money to pay for court-appointed lawyers? What does a judge do to get at the truth in these child abuse and neglect cases? And while we're at it, do any of us, other than the judge and the parties, know what had happened to the kid or kids in that case? I don't. And so I'm not going to sit in judgment on a judge who's probably seen more horrific cases of child abuse than any of us can imagine.

And regarding the Thomas-Hargrave case, let's just take a look at the rest of that Detroit Free Press article ... the part that, for some reason, didn't get quoted in Corinthian's post. I've bolded some of the text.

"Kelly said Kylleen Hargrave-Thomas was the victim of poor representation from lawyers who failed to investigate her case or call witnesses or present evidence at trial. It is the first time Kelly has urged a governor to grant clemency since becoming a judge in 1999.

A spokeswoman for Wayne County Prosecutor Kym Worthy declined to comment Tuesday. Granholm's spokeswoman said only that the commutation request is under review. The trial judge, Wayne County Circuit Judge Wendy Baxter, didn't return a phone call seeking comment.

Hargrave-Thomas' appellate lawyer, Andrea Lyon, a DePaul University law professor, said she is elated.

"I'm amazed that a judge who has such a powerful and important position is willing to publicly step forward," Lyon said. "There is absolutely nothing for her to gain other than she feels compelled to do something about an injustice."

Hargrave-Thomas, 53, who is free on bond, was convicted of first-degree murder in a bench trial in 1993 for stabbing Joseph Bernal, 42, through the heart in the bedroom of his Westland home in 1991. A prosecutor argued that Hargrave-Thomas was enraged because Bernal had changed his mind about marrying her.

Baxter sentenced her to mandatory life in prison without parole.

In 2002, U.S. District Judge Paul Gadola of Flint overturned her conviction and ordered her release from prison, saying her lawyers "were manifestly and flagrantly ineffective." She now lives with her sister in Bloomfield Hills.

The U.S. 6th Circuit Court of Appeals reversed Gadola last year partly because Hargrave-Thomas had waited too long to raise the lawyer ineffectiveness issue. The U.S. Supreme Court declined last month to hear the case.

Lyon asked Granholm in December to commute Hargrave-Thomas' sentence.

Lyon also filed a second appeal with Gadola last month addressing the issue raised by the 6th Circuit. Gadola asked the 6th Circuit last week for permission to hear the latest appeal "given the egregious circumstances of this case."
Meanwhile, Gadola has set a hearing for June 22 to consider the prosecution's request to revoke Hargrave-Thomas' bond and order her return to prison."

Ineffective assistance of counsel. Now THAT truly is a basis for overturning a person's conviction -- we have both state and federal court precedent to that effect. And it's not just Judge Kelly who thinks the defendant got rotten legal representation -- we have a federal judge, indeed a long-time federal judge, Paul Gadola, who ASKED the 6th Circuit for permission to hear the appeal because of the "egregious circumstances of this case."

RightMacomb says, "Just based on these 2 articles, she seems like an activist judge." That's the danger -- that a good judge is going to be tarred and feathered on the basis of just two observations from folks who may or may not have done their homework and who may or may not have an ax to grind. A trial judge hears hundreds of cases; surely Judge Kelly has done so in the course of her career.  (By the way, recall that it was Judge Mary Beth Kelly who kept the Wayne County Clerk from mailing absentee ballots to dead people in Wayne County. Anybody remember that?)

Life isn't an equal distribution that takes from others or in respect to Kylleen Hargrave-Thomas, the taking of an others life.

Kelly, according to published reports, has said she supports legislative action to expand jury pools including allowing convicted felons to serve.