Tanner v. Yukins, 6th Cir., filed 8/15/17: Habeas WIN on a sufficiency of the evidence claim.

August 29th, 2017
Elizabeth Franklin-Best

I feel like I’ve seen a unicorn.  Wins like this are so extraordinarily rare that they’re definitely worth studying.   Initially, Tanner raised two claims in her habeas petition:  1) the Michigan Supreme Court unreasonably applied Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087 (1985) when it denied her lawyers funding for a serology or DNA expert and that the district court erred in upholding the Court’s application of Ake, and 2) that the Michigan Supreme Court unreasonably applied Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979) when it held there was sufficient evidence to convict her, and that the district court erred by upholding the Court’s application of Jackson.  The Sixth Circuit granted relief on this second claim, so it did not address the first claim.

This is an incredible case, and Ms. Tanner is one tenacious defendant.  A bartender was murdered at Barney’s Bar and Grill in Battle Creek, Michigan.  The victim was stabbed to death on March 22, 1995.  When police initially arrived, they did not secure the scene. When they returned with proper equipment, other people were milling about a very important area of the bar where critical evidence was located.  Detective Walters focused his investigative attentions on three suspects, including Tanner (The opinion doesn’t mention, but it appears they were employees of the bar).  Tanner was interrogated.  According to Walters, Tanner said the knife (murder weapon) was hers, even though the audio recording of the interrogation reveals she disclaimed ownership.  Walters said he interviewed Tanner a second time and she admitted to accompanying one of these other people to the bar around the time the victim was murdered.   Still, she said she stayed in the car as her friend went inside to cash a check.  Tanner also denied she had anything to do with the murder although Walters asked her “what circumstances might have led her to commit that sort of murder” she responded she might have done so “if that bitch had treated her bad.”  There was no audio recording of that interview, and the other Detective in the car when it allegedly happened did not testify.  Without overtly stating it, it appears the Sixth Circuit has some suspicions about the veracity of Walters’ testimony.

Tanner testified at trial, and her answers contradicted Walters regarding the knife.  Then, a friend of the victim testified that the victim had recently found a knife that resembled the one used in the crime.  Cady, one of Tanner’s associates also investigated for this crime, corroborated Tanner’s testimony which was that they were smoking crack that night and did not commit the murder.  Two other witnesses testified they spotted a truck and unidentified individuals outside of the bar around the time the victim was murdered.

Law enforcement sought warrants for Tanner and her associates in 1995 but the prosecutor refused to sign off.  Five years later, with a new prosecutor in office, law enforcement obtained a warrant against Tanner, but not the others.

At trial, at related to the Ake claim, the State’s experts testified in such a manner as to suggest that Tanner, an African-American woman, was more likely to have committed the murder given the DNA found on the bar area, than any other gender/ race.  The Sixth Circuit found that testimony was simply inaccurate because it relied on an erroneous assumption about the percentage of the population that American-Americans comprise.

Tanner appealed her convictions, and the Court of Appeals reversed her convictions!  Then, however, the Michigan Supreme Court reversed the Court of Appeals and reinstated her convictions.  Tanner then filed a federal habeas petition, but was unable to file a timely notice of appeal of its dismissal because the prison guards refused her access to the law library.  Tanner then filed a civil rights lawsuit against the guards which she won!  She then filed a 60(b)(6) motion seeking to appeal the denial of her habeas petition.  The district court denied her.  Then, the Sixth Circuit reversed the district court and gave her 30 days to file her notice of appeal.  This time, she filed it on time.  You go girl.  Tanner, by the way, was doing all of this pro se.  Man, she is a rock star.

So, taking all this in, the Sixth Circuit found that the evidence left it “no choice” but to conclude that the Michigan Supreme Court got it wrong:

The State of Michigan has repeatedly responded to the gaps in the prosecution’s case and the existence of potentially exculpatory evidence by pointing out that a jury convicted Tanner.  We are mindful that, as a federal habeas court, we are not to substitute our judgment for the jury’s judgment… We are also mindful that “a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt…” Jackson, 443 U.S. at 317, 99 S. Ct. 2781. “[W]hen such a conviction occurs… it cannot constitutionally stand.”  Id. at 318, 99 S. Ct. 2781.

For now, things are looking really great for Ms. Tanner.  It’s pretty clear, reading the opinion, that she did not commit this crime.  I suspect, however, that the Michigan State Attorney General’s Office will try to cert this to the United States Supreme Court where this decision will likely encounter a very hostile audience.  Word is that Justice Alito flags habeas cases, looking for a reason to reverse.  Hopefully they will let this one slide, since it looks like justice was done in this case and a reversal would be unconscionable.  Exceptional lawyering by Matthew R. Cushing of Jones Day.

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