In People v. Swain, No. 150994, the Michigan Supreme Court agreed to hear Defendant Swain’s latest appeal of her post-conviction motion for relief. Among the issues that the Court ordered the parties to brief are: (1) whether the test set forth in People v. Cress, 468 Mich. 678, 692 (2003), for determining whether a defendant is entitled to a new trial based on newly discovered evidence applies in determining whether a second or subsequent motion for relief from judgment is based on “a claim of new evidence that was not discovered before the first such motion” under MCR 6.502(G)(2); (2) whether the defendant is entitled to a new trial as a remedy for a Brady violation; (3) what standard(s) Michigan courts consider a defendant’s assertion that the evidence demonstrates a significant possibility of actual innocence in the context of a motion brought pursuant to MCR 6.502(G), and whether the defendant in this case qualifies under that standard; (4) whether the Michigan Court Rules provide a basis for relief where a defendant demonstrates a significant possibility of actual innocence; (5) whether, if MCR 6.502(G) does bar relief, there is an independent basis on which a defendant who demonstrates a significant possibility of actual innocence may nonetheless seek relief under the United States or Michigan Constitutions; and (6) whether the defendant is entitled to a new trial pursuant to MCL 770.1.
Ms. Swain was convicted in 2001 of sexually abusing her son, a claim that the victim later recanted. Represented by the University of Michigan Innocence Clinic, Ms. Swain was released from custody in 2012 when a trial court judge granted one of defendant’s successive motions for relief from judgment based on findings of newly discovered evidence involving a Brady violation, the interests of justice under MCL 770.1, and defendant’s actual innocence. The Court of Appeals reversed holding that defendant’s successive motion was barred by MCR 6.502(G)(2), which prohibits a successive motion unless the motion is based on either a retroactive change in law or a claim of new evidence that was not discovered before the first such motion. The Court of Appeals found that under the test in People v. Cress, 468 Mich. 678 (2003), a witness’s personal knowledge of events was not newly discovered evidence because evidence that the witness possessed firsthand knowledge to rebut the sexual abuse claims was plainly known to the defendant prior to her first motion. Furthermore, the Court of Appeals held that the defendant failed to establish a Brady violation, and there is no authority that the standards for evaluating whether evidence is newly discovered under MCR 6.502(G)(2) are applicable to a constitutional claim. Lastly, the Court of Appeals held that the defendant failed to show the existence or applicability of a freestanding actual innocence claim.
