The Volokh Conspiracy
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From Mercer v. Stewart, decided by Judge Matthew F. Leitman (E.D. Mich.) last week:
In 2011, Petitioner Barbara Jean Mercer, who was then in the throes of a crippling addiction to crack cocaine, made two grave mistakes that sent her and those around her down a dangerous path. Her first mistake was stealing a small amount of crack from two violent drug dealers, Anthony Hannah and Shemel Thomas. Thomas quickly discovered the theft, and he then threatened to "shoot [Mercer's] shit up" and "hurt" her. Mercer was frightened by Thomas' threats. She told her live-in boyfriend, Richard Janish, about them, and he was "terrified."
Mercer then made her second mistake. She developed a risky plan with Janish to end the threats from Thomas and Hannah. In Mercer's words, she agreed with Janish that they would (1) "call [Hannah and Thomas] over [to Mercer's house]" with a promise of payment for the stolen crack and then, (2) when Hannah and Thomas arrived, Janish would "scare them a little bit" in an effort to persuade them to stay away from Mercer. This ill-conceived scheme ended with Thomas and Hannah shot to death at Mercer's house.
During the police investigation into the shootings, Janish and Mercer explained to investigators how their plan to scare off Thomas and Hannah went awry. Janish told officers that shortly after Thomas and Hannah arrived at Mercer's residence, he (Janish) had a confrontation with Hannah in front of the house and ended up having to shoot Hannah in an effort to defend himself. Janish and Mercer both told investigators that Janish then entered the house and found Thomas attempting to sexually assault Mercer. They explained that Janish shot Thomas in order to defend Mercer against the assault.
The local prosecuting attorney did not believe Mercer's and Janish's account of the killings. He concluded that Mercer and Janish had conspired to kill Hannah and Thomas long before they arrived at Mercer's house to collect the drug debt. The prosecutor charged Mercer and Janish with, among other crimes, one count of conspiracy to commit first-degree murder, and two counts of pre-meditated first-degree murder. At trial, the jury was also permitted to consider charges of second-degree murder and manslaughter because those offenses were lesser-included offenses of the first-degree murder charges. During the trial, the parties primarily clashed over whether Mercer and Janish planned the killings and whether they were guilty of conspiracy and first-degree murder. Mercer and Janish prevailed in that battle. The jury acquitted them of the conspiracy and first-degree murder charges.
Mercer and Janish also had a complete defense to the second-degree murder and manslaughter charges with respect to Thomas' death, but the state trial court prevented the jury from considering that defense. Under Michigan law, neither Mercer nor Janish could have been convicted of any homicide offense with respect to the killing of Thomas if the jury found, as they both told police, that Janish killed Thomas to prevent him from raping Mercer (the "Defense of Mercer Defense"). However, the state trial court refused to instruct the jury on the Defense of Mercer Defense.
That refusal prejudiced Mercer in two significant ways. First, it freed the prosecution from the heavy burden of having to prove beyond a reasonable doubt that Janish did not kill Thomas to stop him from sexually assaulting Mercer. Second, it deprived Mercer of her only viable complete defense to the second-degree murder and manslaughter charges related to Thomas' death. Without the instruction in question, the jury convicted Mercer of the second-degree murder of Thomas.
The Michigan Court of Appeals affirmed that conviction. That court rejected the claim by Mercer that the state trial court violated her due process rights to present a defense when it refused to instruct the jury on the Defense of Mercer Defense. The appellate court held that the state trial court properly withheld that instruction because there was "no evidence" that Janish killed Thomas to protect Mercer from being raped. That ruling was based upon an unreasonable determination of the facts. The statements that Mercer and Janish gave to investigators plainly constituted evidence that Janish shot Thomas to stop him from sexually assaulting Mercer. Indeed, Respondent has acknowledged as much.
In these habeas proceedings, Mercer again claims, among other things, that the failure to instruct the jury on the Defense of Mercer Defense with respect to the killing of Thomas violated her due process right to present a defense. Because the Michigan Court of Appeals' rejection of that claim was based upon an unreasonable determination of the facts, the Court reviews the claim de novo. For the reasons explained below, and on de novo review, the Court concludes that Mercer is entitled to habeas relief on her due process claim. As further explained below, the Court directs the parties to file supplemental briefs addressing the form and scope of relief on that claim. Finally, the Court concludes that Mercer is not entitled to habeas relief on her other claims for relief….
But it [is] not yet clear to the Court what the form and scope of that relief should be. The failure to give the Defense of Mercer Instruction entitles Mercer to relief form her second-degree murder conviction and sentence arising out of the killing of Thomas (the killing to which the Instruction would have applied). The much harder question is whether the state trial court's error also entitles Mercer to relief from her sentence (but not her conviction) for the second-degree murder of Hannah. There is some indication in the record that the state trial court based its sentence for that offense, at least in part, upon the fact that Mercer had been convicted of two murders. There thus appears that a case could be made that Mercer's sentence for the murder of Hannah was tainted by her invalid conviction for the murder of Thomas. And there may be a further case to be made that under these circumstances, the Court can and should grant relief from Mercer's sentence for the murder of Hannah along with the relief from the conviction and sentence for the murder of Thomas.
The Court concludes that the most sensible way to proceed is to have the parties prepare a final round of supplemental briefs that addresses the scope-of-remedy issue.