Four justices wrote when the Michigan Supreme Court released today’s 93-page decision in People v Loew (164133).
Chief Justice Clement penned the 29-page lead majority (joined by Justices Zahra and Viviano).
Justice Welch filed a 31-page opinion that concurred and dissented in part (joined by Justice Cavanagh).
Justice Bolden wrote for herself in a 15-page opinion that concurred and dissented in part.
And Justice Bernstein authored an 18-page dissent.
Could Claude.ai sort it out? Let’s see.
Like earlier exercises, I deleted the multiple-page Syllabus before prompting Claude.ai.
I attached the decision and instructed Claude.ai:
Create a five-column table that outlines all argument differences between the opinions authored by Chief Justice Clement (lead majority), Justice Welch (concur-dissent), Justice Bolden (concur-dissent), and Justice Bernstein (dissent) in the attached document. Create another five-column table that outlines all areas of agreement between the opinions authored by Chief Justice Clement (lead majority), Justice Welch (concur-dissent), Justice Bolden (concur-dissent), and Justice Bernstein (dissent).
Claude.ai’s first response was:
Here are two tables outlining the key argument differences and areas of agreement between the four opinions:
Table 1: Argument Differences
Issue Clement (Lead) Welch (Concur/Dissent) Bolden (Concur/Dissent) Bernstein (Dissent) Approach to analyzing the issue Considers both nonconstitutional and constitutional aspects Focuses on constitutional due process aspects Focuses solely on constitutional due process aspects Focuses solely on constitutional due process aspects Whether to adopt Liljeberg test Rejects Liljeberg test Would adopt modified Liljeberg test Agrees with rejecting Liljeberg test Rejects Liljeberg test Burden of proof Places burden on defendant to show prejudice Would place burden on prosecution to justify ex parte communications Does not explicitly address burden Would place burden on prosecution to justify ex parte communications Whether to remand Affirms Court of Appeals, no remand Would remand to apply modified Liljeberg test Agrees with affirming Court of Appeals, no remand Would remand to apply Barnwell test Test to apply Applies traditional harmless error analysis Would apply modified Liljeberg test Does not propose specific test Would adopt and apply Barnwell test Table 2: Areas of Agreement
Issue Clement (Lead) Welch (Concur/Dissent) Bolden (Concur/Dissent) Bernstein (Dissent) Ex parte communications were improper Agrees Agrees Agrees Agrees Ex parte communications were substantive, not administrative Agrees Agrees Agrees Agrees Liljeberg test is not appropriate Agrees Agrees Agrees Agrees No constitutional violation occurred Agrees Agrees Agrees Disagrees Judge should have recused herself Agrees Agrees Does not address Does not address
Like a savvy litigator during a trial or depo cross-exam, I basically asked Claude.ai: Anything else?
Were there any other areas of agreement or disagreement?
And, here, it’s important to recognize the value in prompting such follow-up. Claude.ai offered more:
You’re right to ask – there were a few additional areas of agreement and disagreement that I didn’t capture in the initial tables. Here are some additional points:
Additional Areas of Agreement:
- All opinions agree that ex parte communications between judges and prosecutors are generally disfavored in law.
- Chief Justice Clement, Justice Welch, and Justice Bernstein all agree that the Court of Appeals erred in categorizing the communications as administrative rather than substantive.
- Chief Justice Clement, Justice Welch, and Justice Bolden all agree that the defendant was not deprived of his constitutional rights in this case.
Additional Areas of Disagreement:
- Whether to address violations of the Michigan Code of Judicial Conduct:
- Chief Justice Clement and Justice Welch discuss violations of the judicial code
- Justice Bolden and Justice Bernstein argue it’s unnecessary to address this
- How to characterize the ex parte communications in relation to critical stages of the trial:
- Chief Justice Clement argues they were not part of a critical stage
- Justice Bernstein contends they occurred during a critical stage
- The relevance of People v France:
- Justice Bolden finds it instructive
- Justice Bernstein argues it’s not directly applicable but provides some guidance
- Whether to adopt the Barnwell test:
- Justice Bernstein advocates for adopting the Barnwell test
- The other justices do not explicitly endorse this test
- How to analyze the case procedurally:
- Chief Justice Clement treats it as a preserved nonconstitutional error
- The other justices focus more on the constitutional aspects
These additional points provide a more comprehensive view of the nuanced differences between the opinions.
What else did Claude.ai have to offer, I wondered (again):
Were there any other areas of agreement or disagreement?
Claude.ai did not disappoint.
Upon further review, there are a few more nuanced areas of agreement and disagreement that I can highlight:
Additional Areas of Agreement:
- All opinions acknowledge that the ex parte communications were discovered after the trial had concluded, which affected how the issue could be addressed procedurally.
- Chief Justice Clement, Justice Welch, and Justice Bernstein all agree that the communications were substantive in nature, rather than merely administrative or housekeeping.
- All opinions recognize the importance of maintaining public confidence in the judiciary and the appearance of impartiality.
Additional Areas of Disagreement:
- The relevance of MCR 6.431(B) and MCL 769.26:
- Chief Justice Clement analyzes the case under these provisions
- The other justices do not focus on these specific rules
- The applicability of the “miscarriage of justice” standard:
- Chief Justice Clement applies this standard
- Justice Bernstein explicitly argues against using this standard in this context
- Justices Welch and Bolden do not directly address this standard
- The role of the Judicial Tenure Commission:
- Justice Bolden emphasizes that determining judicial misconduct should be left to the Judicial Tenure Commission
- The other opinions do not focus on this aspect
- The analysis of potential prejudice:
- Chief Justice Clement looks for concrete evidence of prejudice
- Justice Bernstein argues for a presumption of prejudice in cases of substantive ex parte communications
- Justices Welch and Bolden do not explicitly address this issue
- The significance of the trial judge initiating the communications:
- Justice Bernstein notes this as an important factor
- The other opinions do not emphasize this point as strongly
These additional points further illustrate the complexity of the justices’ reasoning and the various approaches they took to analyzing the issue at hand.
Fair enough. Let’s ask again.
Were there any other areas of agreement or disagreement?
Yes, there were.
After carefully reviewing the opinions again, I’ve identified a few more subtle areas of agreement and disagreement that weren’t previously mentioned:
Additional Areas of Agreement:
- All opinions acknowledge the difficulty in proving the impact of ex parte communications on a trial’s outcome.
- Chief Justice Clement, Justice Welch, and Justice Bernstein all recognize that the trial judge’s actions fell short of the high ethical standards expected of Michigan jurists.
- All opinions agree that the case presents important questions about judicial conduct and fairness in criminal trials.
Additional Areas of Disagreement:
- The relevance of efficiency in considering remedies:
- Justice Bernstein explicitly argues against considering efficiency when constitutional rights are at stake
- The other opinions do not directly address this point
- The interpretation of United States v Barnwell:
- Chief Justice Clement distinguishes Barnwell on its facts
- Justice Bernstein argues for adopting Barnwell’s legal principle despite factual differences
- Justices Welch and Bolden do not extensively discuss Barnwell
- The significance of the trial judge’s long history with the prosecutor:
- Justice Welch mentions this as a factor that heightens concerns about the ex parte communications
- The other opinions do not emphasize this point
- The potential impact on future cases:
- Justice Welch expresses concern about the precedent this case might set for future situations involving judicial misconduct
- The other opinions do not focus on this forward-looking aspect
- The role of the Michigan Code of Judicial Conduct in the analysis:
- Chief Justice Clement and Justice Welch incorporate it into their reasoning
- Justice Bolden explicitly argues against using it in this context
- Justice Bernstein does not focus on it
These additional points further highlight the nuanced differences in the justices’ approaches to analyzing this complex issue.
Okay, let’s move along. Here’s a different but relevant follow-up prompt:
What are the key lessons for trial court judges from this decision?
Claude.ai offered 10:
Based on the opinions in this case, there are several key lessons for trial court judges:
- Avoid ex parte communications: All opinions emphasize that substantive ex parte communications between judges and prosecutors are highly problematic. Judges should refrain from engaging in such communications, especially during ongoing trials.
- Disclose and recuse when necessary: If a situation arises where ex parte communications occur, judges should promptly disclose these communications to all parties and consider recusal. As Chief Justice Clement notes, judges should raise the issue of disqualification sua sponte when grounds for disqualification may exist.
- Maintain impartiality and its appearance: Judges must be vigilant in maintaining both actual impartiality and the appearance of impartiality. Actions that might reasonably cause an objective observer to question a judge’s impartiality should be avoided.
- Understand the nature of communications: Judges should be clear on the distinction between administrative, housekeeping, and substantive communications. Substantive communications about a case are particularly problematic.
- Be aware of ethical standards: Judges should be well-versed in the Michigan Code of Judicial Conduct and strive to uphold its standards, even if violations may not always result in reversible error.
- Consider constitutional implications: Judges should be mindful that their actions, including ex parte communications, can potentially violate defendants’ constitutional rights to due process and a fair trial.
- Recognize critical stages: Understand that communications related to an ongoing trial, even if not occurring in the courtroom, may be considered part of a critical stage of proceedings.
- Be cautious with discretionary decisions: When making discretionary decisions, judges should be particularly careful to avoid any appearance of bias or impropriety.
- Maintain professionalism with all parties: Judges should maintain a professional distance from all parties, including prosecutors with whom they may have a long professional history.
- Consider long-term impacts: Be aware that actions taken during a trial can have far-reaching consequences, not only for the case at hand but also for public confidence in the judiciary as a whole.
These lessons underscore the importance of judicial ethics, impartiality, and transparency in maintaining the integrity of the judicial process.
Let’s take Claude.ai in a different direction:
Will the defendant in this case receive a new trial?
Claude had an answer, and got it right:
No, the defendant in this case will not receive a new trial based on the outcome of this decision.
The lead opinion authored by Chief Justice Clement, which represents the majority view, affirms the judgment of the Court of Appeals. The Court of Appeals had reversed the trial court’s order granting the defendant a new trial.
Specifically, the lead opinion concludes:
- While the trial judge’s ex parte communications violated the Michigan Code of Judicial Conduct and the judge should have recused herself, this did not result in a miscarriage of justice that would warrant a new trial under MCR 6.431(B) and MCL 769.26.
- The ex parte communications did not violate the defendant’s constitutional rights to due process, to be present at critical stages, or to counsel.
- There was no evidence that the communications affected the jury’s verdict or that the trial judge was actually biased against the defendant.
Although Justice Welch would have remanded the case to apply a modified Liljeberg test, and Justice Bernstein would have remanded to apply the Barnwell test, these were dissenting views. The majority position, supported by Chief Justice Clement and Justice Bolden, is to affirm the Court of Appeals decision denying a new trial.
Therefore, based on this Michigan Supreme Court decision, the defendant’s conviction stands and he will not receive a new trial.
I had one more question for Claude.ai:
Does this decision indicate whether the trial court judge will be disciplined for any Michigan Code of Judicial Conduct violation?
Again, Claude.ai sorted through the 90+ pages and got it right:
No, this decision does not indicate whether the trial court judge will be disciplined for any Michigan Code of Judicial Conduct violation. The opinions deliberately avoid making any determination about potential disciplinary action against the judge.
Several key points from the opinions support this:
- Chief Justice Clement explicitly states: “As we have made clear, we believe that the trial judge’s conduct in this case violated the Michigan Code of Judicial Conduct. The trial judge’s actions fell short of the high ethical standards that Michigan jurists are expected to uphold, and regrettably, her behavior has the potential to erode public confidence in the integrity of our justice system. Still, the issue before us is not whether the trial judge should be sanctioned for her misconduct.”
- Justice Bolden argues that the Court should not even address whether the judge violated the Code of Judicial Conduct in these proceedings. She states: “whether the trial judge has violated the judicial canons is not part of this appeal, and this Court should not and need not make that determination in this case.”
- Justice Bolden further emphasizes that the Judicial Tenure Commission is the proper body to investigate and determine judicial misconduct, noting that the process is governed by specific court rules (MCR 9.200 et seq).
- None of the opinions make any recommendation or indication about potential disciplinary action against the judge.
- The focus of the decision is on whether the defendant should receive a new trial, not on potential consequences for the judge’s conduct.
In summary, while the majority opinion acknowledges that the judge’s conduct violated the Code of Judicial Conduct, the decision explicitly states that the question of sanctions or discipline for the judge is not part of this ruling. Any potential disciplinary action would be a separate matter, likely handled by the Judicial Tenure Commission, and is not addressed or indicated by this decision.