Murder case curveball

In what legal experts say is a highly unusual move, a Wayne County prosecutor wants University of Michigan Law School students to testify against a man they've been working to exonerate.

Innocence Clinic co-director David Moran is asking Wayne County Circuit Judge Tim Kenny to strike the students from the witness list, as well as a journalist who sat in on some of the clinic sessions last year as part of a fellowship. Moran argued at a hearing Monday that the students have the same confidentiality privileges that lawyers have, and that assistant prosecutor Robert Stevens should not be able to call them to try to make his case.

"What Mr. Stevens has requested would decimate our legal team," Moran said.

As part of their work with the Innocence Clinic, the students helped their professors last year convince Kenny to set aside Dwayne Provience's 2001 murder conviction. At the time, Wayne County Prosecutor Kym Worthy agreed evidence was withheld from Provience's defense at his trial and that he should be granted a new one.

Kenny released the 36-year-old Detroit man from prison and scheduled a new trial for April 5. Provience had been serving a 30-to-60-year sentence for the March 2000 death of Rene Hunter, who was fatally gunned down at a northwest Detroit intersection. Police have said it was drug-related.

In arguing for the new trial, the students found a related murder case, tried a year after Provience's, in which Wayne County prosecutors asserted that two other men were responsible for the killing that landed Provience in prison. 

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.

In a series of hearings since the new trial order, Kenny has allowed the law students to appear before him on Provience's behalf as permitted by Michigan Court Rules. They've also continued to investigate the case and have successfully argued to Kenny for the exclusion of the prosecution's only trial witness: a neighborhood panhandler and admitted crack user named Larry Wiley, who was the only person to identify Provience as the gunman. 

Wiley has said police forced him to falsely testify against Provience, and that he worries if he testified to that in court, he could face a perjury charge. Kenny has ruled that Wiley can't be called for the retrial, scheduled for April 5, because he has a Fifth Amendment privilege that protects him from incriminating himself.

Still, with a growing amount of evidence pointing to Provience's innocence, Stevens continues to maintain he'll try him. The Prosecutor's Office refuses to explain why they are pressing on with the case.

Stevens filed his witness list March 5, and it includes six students who have been enrolled or interned with the clinic, another law student who was present at witness interviews and a California journalist named Peggy Lowe. A writer for The Orange County Register, she was part of the prestigious Michigan journalism fellowship program last year, and attended clinic sessions and interviews.

At Monday's hearing, Stevens responded to Moran's objections to the students' possible testimony. Stevens said because the students have had statements published in newspapers, have interviewed Wiley and appeared in a YouTube video about the case, he should be able to call them to the witness stand.

"All this is fair game," Stevens said in court. "I need to know the context of [Wiley's] conversations with each of these persons. Each one of those persons is a prosecution witness."

Kenny requested a written argument from Moran due March 25, and scheduled a hearing for March 29. "I think I need you to brief this issue as to how, in effect, law students become attorneys for the duration of the entire trial," he said.

Michigan Court Rules allow law students and recent graduates who are under the supervision of a member of the state bar to staff legal aid clinics — such as the Innocence Project  — that are part of accredited law schools. Michigan law schools have a growing number of such clinics. The University of Detroit Mercy has 10 and Cooley Law School and Wayne State University each have seven, for example. Wayne State opened a new one this year for asylum and immigration cases.

While enrolled in the clinics for credit, students gain practical experience working on cases and representing indigent clients who could not afford counsel. "It's very good exposure for the students," says Robert Ackerman, law dean at Wayne State, "and we like our students to do some good."

Like regular attorneys, the law clinic's 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, a law professor at Wayne who specializes in criminal procedure. He calls Stevens listing of 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, Chippewa County prosecutor and president of the Michigan Prosecuting Attorneys Coordinating Council, says the students' confidentiality could depend on their role 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."

At the National Association of Criminal Defense Lawyers, staff attorney Jack King says he has never seen law students called to testify about clinic work. "Maybe one of them might have something that's unprivileged that would help the state's case, and so he has to put them on the witness list or he can't call them," he says. "Or on the other hand, maybe he's just trying to scare the kids."

But Scott Burns, executive director of the National District Attorneys Association, says the students' research raises interesting questions that could affect how far any confidentiality privilege extends.

"Are they detectives? Are they investigators? Are they now inserting themselves into the criminal justice system, which is fine, but not necessarily as defense attorneys?" Burns asks. Roles other than as defense attorneys could make them prosecution witnesses, he says.

Lowe, who isn't an attorney but was part of the University of Michigan's Knight-Wallace Fellows Program for journalists, is in a different legal situation. Working journalists are often covered by "shield laws" that offer them some protection from being compelled to testify in criminal cases. Michigan's shield law protects print and broadcast reporters from disclosing confidential sources or information in all but capital cases.

But one of the journalism 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.

Lucy Dalglish, executive director at the Reporters Committee for Freedom of the Press, says Lowe probably doesn't have protection from testifying if called because she didn't interview Wiley and other witnesses as confidential sources. "She's going to have a hard time claiming to be a journalist, particularly if a condition of her fellowship was that she not do journalism while she was there," she says.

In Illinois, the attorney general last year subpoenaed notes, grades and other material from Northwestern University journalism students whose work was used in a petition for a new trial for a man convicted of murder more than 30 years ago.

The attorney general claimed that, because the work was done by students, they were not covered by shield laws as professional journalists would be. The Medill Innocence Project last week dropped the petition that included the results of the students' work, and a judge granted the man a new trial.