Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  December 1, 2010                                                                        Marilyn Kelly,
                                                                                              Chief Justice

  138577 & (116)(117)                                                              Michael F. Cavanagh
                                                                                     Maura D. Corrigan
                                                                                    Robert P. Young, Jr.
                                                                                    Stephen J. Markman
  PEOPLE OF THE STATE OF MICHIGAN,                                                  Diane M. Hathaway
            Plaintiff-Appellee,                                                    Alton Thomas Davis,
                                                                                                   Justices
  v                                                      SC: 138577
                                                         COA: 279017
                                                         Wayne CC: 05-003228-01
  ALEXANDER ACEVAL,
          Defendant-Appellant.

  _________________________________________/

         On November 4, 2010, the Court heard oral argument on the application for leave
  to appeal the February 5, 2009 judgment of the Court of Appeals. On order of the Court,
  the application is again considered, and it is DENIED, because we are not persuaded that
  the questions presented should be reviewed by this Court. The motions for expedited
  consideration and for immediate consideration are DENIED as moot.

        MARKMAN, J. (dissenting).

         I respectfully dissent. This case is singular and, hopefully, will remain as much.
  It is an extraordinary “case without precedent and very likely without duplicate
  hereafter,” People v Smith, 405 Mich 418, 436 (1979), in which the prosecutor, the judge,
  and the police, were each involved in enabling perjured testimony. As the Court of
  Appeals observed, their conduct was “disgraceful,” “plainly reprehensible,” and
  “opprobrious.” At the end of this deeply flawed trial, the jury was unable to reach a
  verdict and the judge declared a mistrial. Over defendant’s objection, a second trial
  began and defendant eventually pled guilty.

         I am of the view that the jury — which could not reach a verdict of guilty even
  absent an awareness of the tainted evidence — would almost certainly have found it to be
  of significance as to the credibility of the principal witness against defendant that the
  witness had been promised, upon defendant’s conviction, 10% of the expected forfeiture
  proceeds, an amount estimated to be as much as $100,000. Had the jury been made
  aware of this evidence, as it should have been, there is a reasonable chance that defendant
                                                                                                               2

would have been acquitted, which acquittal under the United States and Michigan
Constitutions would have barred a second trial.

       I am further of the view that had it become known during trial that: (a) the
principal witness testified falsely concerning this interest; (b) that such testimony was
known to be false by both the prosecutor and the judge; and (c) that the prosecutor and
the judge colluded in allowing such false testimony, a mistrial almost certainly would
have been required on account of such misconduct. And such a mistrial — one
occasioned by circumstances directly “attributable to prosecutorial [and] judicial
overreaching” — would almost certainly have deprived the prosecutor, under either the
due process or the double jeopardy clauses of the United States and Michigan
Constitutions, of a second opportunity to try the defendant. United States v Dinitz, 424
US 600, 607 (1976). That such circumstances did not come to light until after the trial,
and that the state therefore was able to try defendant a second time “cannot make an
unconstitutional second trial retrospectively valid.” People v Lett, 466 Mich 206, 229
(2002) (CAVANAGH, J., dissenting.)

       Because defendant’s trial neither entailed a search for the truth, nor adhered to
constitutional first principles of fair procedure, I would reverse the Court of Appeals,
vacate defendant’s conviction, and hope never again to see such a case within our
criminal justice system.

      HATHAWAY, J. (dissenting).

       I would grant leave to appeal in this matter because the issues before us are
significant and worthy of full Court review before this Court renders its decision.

      CORRIGAN, J., states as follows:
      I am not participating because I may be a witness in a related case.




                         I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         December 1, 2010                    _________________________________________
       p1123                                                                 Clerk
