What does an innocent person have to do to get their conviction overturned?

That’s what a case coming before the Michigan Supreme Court this week will decide.

The defendant here is Lorinda Swain, who was convicted in 2002 for sexually abusing her adopted son.

But her son later told the court he’d lied about the abuse. After more than seven years in prison, Swain was let out on bond when a judge ruled she deserved a new trial.

But the Court of Appeals overruled that decision two separate times. Now the Supreme Court will hear arguments in the case.

Yet  there’s a lot more at stake here than just whether one woman will get a new trial.

The Michigan Supreme court is also asking lawyers to debate whether Michigan law, and the US Constitution, offers a legal path to freedom for someone who’s probably innocent.

So Swain’s case could have huge implications for anyone who’s wrongfully convicted in Michigan, and some big names are weighing in on the case.

Attorney General Bill Schuette has filed a brief supporting the prosecutors, arguing Swain doesn’t deserve a new trial.

But a group of current and former Michigan prosecutors have also filed a brief – stunningly, in support of Swain. They argue that if the Supreme Court doesn’t rule on her behalf, it could be devastating for future innocence cases.

Did the prosecutors suppress evidence that could have helped Swain?

Attorneys with the Innocence Clinic at the University of Michigan are now representing Swain on her appeals.

Their defense boils down to two main points:

1) Swain is not guilty;

2) The prosecutors at her trial kept critical evidence from Swain’s defense team that could have helped persuade the jury she was not guilty.

Credit courts.mi.gov

But whether that evidence is actually new, or could have been discovered by Swain’s original defense team, will be a major point of debate.

Although Swain was convicted of sexually abusing one of her adopted sons, her trial defense team decided not to call her ex-boyfriend, Dennis Book, to the stand. Book lived in the home during some portion of time when the abuse allegedly occurred, but by the time the trial rolled around, Swain and her ex were estranged and pretty hostile.

Yet since then, Swain’s new attorneys have discovered that a detective spoke with Dennis Book on the phone before the trial, and the ex-boyfriend told the detective he knew Swain hadn’t abused the child.

Swain’s attorneys are now arguing that, because the prosecutor didn’t tell the defense about this phone call with Book, the defense had no way of knowing he was actually a strong witness for the defense, despite the hostility.

When a prosecutor doesn’t hand over evidence that a defendant may actually be innocent, it’s called a Brady violation, and it can be the basis for throwing out a conviction.

But Michigan’s Attorney General Bill Schuette is arguing that no Brady violation occurred.

In a “friend of the court” brief filed with the Supreme Court, Schuette argues that because Swain’s original defense team always knew the ex-boyfriend had lived in the home and could have testified about what he did or didn’t see at the time, then the prosecutor wasn’t hiding anything.

"...Nothing the State did prevented her from calling him at trial; if she wanted to put on testimony from him at trial, she could have done so,” his brief argues.

And even if they had put Book on the stand, he still doesn’t necessarily prove Swain is not guilty.

“In the best case scenario, he might be able to testify that he never observed her committing the charged sexual misconduct,” Schuette says. “But…Book did not live with Swain when the abuse began, and when he did live with her, he still was not present at the other location when abuse occurred.”

What does it take to get a new trial after you’re convicted?

Whether Swain has proven she’s truly not guily is critical here, Schuette argues. Because once both a jury and an appeals court have found someone guilty, they face a much higher legal threshold for getting a brand new trial, Schuette says. 

They either have to prove there was an error during the trial (and Schuette doesn’t think the detective’s phone call counts) and if the defendant can’t prove that, then they need slam-dunk evidence that they are not guilty.

Credit Courtesy of Bill Schuette

“To obtain relief based on an assertion of actual innocence, a convicted defendant must show that she is innocent, not just that reasonable doubt exists,” Schuette says in his brief. Swain, he says, has not done that.

But in this case, Attorney General Bill Schuette and his co-authors on that legal brief (Solicitor General Aaron Lindstrom and Chief Legal Counsel Matthew Schneider) find themselves up against their own kind: other prosecutors.

Nine current and former Michigan prosecutors filed a 20-page brief with the state Supreme Court that starts off with this jaw-dropper: “If it is not contrary to the law for an actually innocent person to be locked up for a crime she never committed, what value is the law?”

Prosecutors and judges have an ethical mandate, they argue, to seek justice. And any arguments based on technical interpretations of the law are just wrong, if they’re used to hold an innocent person in prison, their brief argues.

What’s more, the law is pretty clear on that front, the nine prosecutors argue: Michigan law is clearly written to let judges grant new trials “when it appears to the court that justice has not been done.”

And even if the Supreme Court feels Swain could have called her ex-boyfriend to the stand from the beginning, Michigan law still gives her another chance if “there is a significant possibility that the defendant is innocent of the crime.”

If Michigan wants to avoid the costs of imprisoning wrongfully convicted people – federal intervention, the high financial costs of incarceration and lawsuits, plus a moral and legal duty – then the Supreme Court will rule in favor of Swain, their brief argues.

The court will hear arguments starting this Wednesday.