On Friday, September 11, 2009, the Michigan Supreme Court granted, in part, the defendant's motion for rehearing in People v. Borgne. In Borgne, the Court held that the prosecution violated Borgne's constitutional rights by using his post-arrest, post-Miranda silence against him. Nonetheless, the Court concluded that this violation did not rise to the level of plain error and affirmed Borgne's conviction. Our earlier discussion of the opinion in Borgne is here. In its order granting rehearing in part, the Court addressed Borgne's contention that his attorney's failure to object to the prosecution's references to his constitutional protected silence was ineffective assistance of counsel. The Court concluded that the evidence against Borgne at trial was overwhelming and that Borgne's counsel's failure to object did not prejudice Borgne. Chief Justice Kelly and Justices Cavanagh and Hathaway would have, in lieu of granting rehearing, remanded the issue of ineffective assistance of counsel to the Court of Appeals.
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