Monday, January 24, 2011

Evidence, and justice, call for a new ruling

The following editorial was published by the Detroit Free Press on January 24, 2011.

In this state, the Michigan Supreme Court must ensure that judges are accountable to the law -- and to justice.

So far, however, the state's highest court has ignored the demands of justice -- and very probably the law -- in the case of Lorinda Swain. New evidence has convinced even the sentencing judge of her innocence, but last month, the Michigan Supreme Court, by a 4-3 vote, refused to hear the case.

The action came after the Michigan Court of Appeals reversed a decision last year by Calhoun County Circuit Judge Conrad Sindt to grant Swain, 50, of Burlington, a new trial because of ineffective counsel. Sindt released Swain on bond in August 2009.

She was convicted in 2002 and sentenced to 25 to 50 years for having oral sex with her 13-year-old adopted son, Ronald Swain, who later said he lied about the incidents.

Lawyers for the University of Michigan Innocence Clinic presented new evidence to Sindt, calling two witnesses to refute trial testimony: Union City school bus driver Tanya Winterburn and William Risk, a student who lived two houses away when the alleged sexual assaults occurred.

According to trial testimony, Swain sent Ronald's brother, Cody Swain, outside first and sexually assaulted Ronald in the house before the bus came. But Winterburn told Sindt she never saw Cody waiting for the bus alone.

William Risk said he always saw the boys waiting together. Neither Risk nor Winterburn, however, were called by Swain's defense attorney.

Even so, the Court of Appeals denied a new trial, arguing, in effect, that the evidence was not really new because Swain's trial attorney knew about it, even though he did not use it or even interview the witnesses -- exactly how you would expect an ineffective attorney to perform. Such a narrow view of the court rules regarding new evidence denies due process.

"Even when you have evidence that will convince the judge that sent the defendant away for decades of innocence, the Court of Appeals is saying, 'Too bad, go away,' " said David A. Moran, a law professor who heads the University of Michigan Innocence Clinic.

After seven years in prison, Swain has been free on bond and working since Sindt's ruling a year and a half ago. She likely will return to prison soon, unless the Supreme Court reconsiders its decision. Justice and the law demand that it does.

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