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The Michigan Appeals Court on Friday suspended the trial of Detroit Police Officer Joseph Weekley, accused in the death of a 7-year-old girl, so it can review a move by the judge to throw out the most serious charge against him.

Wayne County Circuit Judge Cynthia Gray-Hathaway's decision to toss an involuntary manslaughter charge — a surprising development in the three-week trial — prompted prosecutors to file an emergency appeal to the state court.

Weekley was charged with the felony after he led the May 2010 police raid that resulted in the shooting death of Aiyana Stanley-Jones. He also was charged with the careless discharge of a weapon, a misdemeanor. The raid was being filmed by a crew for a television show.

This was Weekley's second trial; the first, last year, ended in a hung jury.

After the prosecution rested Friday, defense attorney Steve Fishman asked Hathaway to dismiss the involuntary manslaughter charge because prosecutors had failed to show that Weekley intentionally created a danger that caused the little girl's death.

Hathaway agreed because, she said, the law required her to instruct the jury that he had acted with gross negligence, willfully putting Aiyana in harm's way.

"Gross negligence means more than carelessness; it means willfully disregarding the safety of others," Hathaway said. "The key word here is 'gross negligence.' I don't see evidence that the defendant willfully disregarded the results to others.

"If I have to err on one side or another, I'm going to err on the side of the defense."

Hathaway went on to call the jury instructions, which she must follow based on the charge, "bad instructions."

Her remarks came after Fishman asked for a directed verdict on the involuntary manslaughter charge, which essentially is a request to throw out the charge.

After the judge granted the motion, assistant Wayne County prosecutor Robert Moran objected on grounds that it should be up to the jury to decide whether Weekley acted willfully.

Hathaway stayed her decision to allow prosecutors to file their emergency appeal to the Michigan Court of Appeals.

However, the appeal may be moot, because the U.S. Supreme Court last year ruled that once a judge grants a directed verdict, the decision cannot be appealed.

In Evans v. Michigan, Lamar Evans was accused of torching a vacant Detroit home.

A question was raised about the language of the jury instructions, and whether the burned structure was a "dwelling house."

A judge granted defense attorney David A. Moran's request for a directed verdict in Evans' favor.

Prosecutors appealed the case, which eventually found its way to the High Court.

In February 2013, the Supreme Court ruled 8-1 that once a directed verdict is issued, it cannot be appealed because that would constitute double jeopardy, even though the justices found the lower court's original ruling was wrong.

"Generally speaking, when a directed verdict is granted, the case is over and there can't be any other proceedings," said David A. Moran, a University of Michigan law professor who is not related to assistant Wayne County prosecutor Robert Moran but handled the landmark case.

The professor added there may be a provision in the High Court's ruling allowing a lower judge's directed verdict decision to be delayed.

"I would have to know exactly how the judge worded it, but in general, the case would be over once the directed verdict is granted," he said.

If the judge's decision is upheld on appeal, Weekley likely won't go to prison on his misdemeanor charge of careless discharge of a weapon causing death. Had he been convicted of manslaughter, he faced up to 15 years in prison.

If the judge's decision is overturned, the defense would have grounds to appeal on double jeopardy, Moran said. Double jeopardy means trying someone twice for the same crime, and it's prohibited.

The judge's decision prompted immediate reaction from supporters of Aiyana Stanley-Jones' family.

"Judge Hathaway's possible dismissal of involuntary manslaughter charges against Joe Weekley reeks of judicial misconduct.

"Not only is Judge Hathaway circumventing the role of the jury, she has totally lost sight of why Weekley is on trial: for recklessly killing a baby," said Roland Lawrence, chairman of the Justice for Aiyana Jones Committee.

Weekley led the Detroit Police Special Response Team into Aiyana's home May 16, 2010, looking for a murderer. He claims Aiyana's grandmother, Mertilla Jones, slapped at his gun, causing it to fire and kill the sleeping girl.

Prosecutors argue Weekley didn't use proper care for safety because he kept his finger on the trigger, which police are trained not to do.

ghunter@detroitnews.com

(313) 222-2134

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