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Justices reject bid for new trial in Dearborn case

Melissa Nann Burke
Detroit News Washington Bureau

Washington — The U.S. Supreme Court said Monday that Michigan judges correctly rejected a man’s claim that he deserved a new trial because his lawyer left the courtroom for 17 minutes during the testimony of a government witness.

Cory Donald, who was 16 at the time of the crime, was convicted of murder and armed robbery stemming from his role in the Nov. 5, 2005, killing of Mohammed Makki in Dearborn. He is serving life in prison without the possibility of parole.

The absence of Donald’s attorney, Robert L. Cunningham, occurred during testimony about a chart of phone calls that implicated Donald’s two co-defendants, according to court records.

Cunningham previously told the trial court the evidence didn’t pertain to his client, and “I don’t have a dog in this race.”

Michigan state courts rejected Donald’s claim of ineffective counsel. A federal district court and the 6th U.S. Circuit Court of Appeals disagreed, saying Cunningham’s absence during a “critical stage” of trial constituted ineffective assistance.

From the jury’s perspective, the phone-call evidence might have “indirectly” implicated Donald, the appeals court said. It also noted the trial judge didn’t ask Donald whether he consented to moving forward without his lawyer present.

The Supreme Court said it’s not clear that Donald was prejudiced by Cunningham’s absence, since the testimony held no significant consequences for his case. Donald had maintained he was present at the scene but didn’t participate in the planning of his co-defendants or in the crime.

“A fair-minded jurist could conclude that a presumption of prejudice is not warranted by counsel’s short absence during testimony about other defendants where that testimony was irrelevant to the defendant’s theory of the case,” the justices wrote in an unsigned opinion.

The justices reversed the Sixth Circuit’s ruling and sent it back to the lower court for further proceedings.

Kimberly Thomas, a clinical professor at the University of Michigan Law School’s Juvenile Justice Clinic who represented Donald in the appeal, was disappointed in the outcome.

“I find it surprising that someone’s attorney can be absent from their homicide trial, and that’s OK,” Thomas said.

mburke@detroitnews.com

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