Order                                                                                         Michigan Supreme Court
                                                                                                    Lansing, Michigan

  May 13, 2020                                                                                       Bridget M. McCormack,
                                                                                                                    Chief Justice

  161277 & (26)                                                                                            David F. Viviano,
                                                                                                           Chief Justice Pro Tem

  PEOPLE OF THE STATE OF MICHIGAN,                                                                       Stephen J. Markman
            Plaintiff-Appellee,                                                                               Brian K. Zahra
  v                                                         SC: 161277                                  Richard H. Bernstein
                                                            COA: 352361                                 Elizabeth T. Clement
                                                            Antrim CC: 19-004936-FH                     Megan K. Cavanagh,
                                                                                                                         Justices
  DAVID MICHAEL BARBER,
             Defendant-Appellant.
  _____________________________________/

           On order of the Court, the motion for immediate consideration is GRANTED. The
  application for leave to appeal the April 28, 2020 order of the Court of Appeals is
  considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
  VACATE the April 17, 2020 order of the Antrim Circuit Court denying the defendant’s
  emergency motion for bond pending appeal. It is undisputed that MCL 770.9a(2) applies
  to the defendant’s motion. In addition, under Administrative Order No. 2020-1 (issued
  March 15, 2020), “[d]uring the state of emergency, trial courts should be mindful that
  taking reasonable steps to protect the public is more important than strict adherence to
  normal operating procedures . . . .” The trial court abused its discretion in its consideration
  of the existing statutory factors along with the public health factors arising out of the
  present state of emergency. The trial court did not address the first factor under MCL
  770.9a(2)(a), and it is not obvious from the record that the defendant poses a danger to
  others. While the trial court considered MCL 770.9a(2)(b), its conclusory determination
  that the defendant’s appeal does not raise a substantial question of law or fact failed to
  consider the timing of the defendant’s emergency motion and that the plain language of the
  statute does not require a showing of success on appeal. Finally, the trial court clearly
  erred in its factual determinations regarding the public health emergency. Contrary to the
  trial court’s statements, there are many indications that incarcerated individuals are at a
  greater risk of COVID-19 infection. See, e.g., Executive Order 2020-62 (issued April 26,
  2020) (directing the implementation of COVID-19 protocols to “provide essential
  protections to vulnerable Michiganders who work at or are incarcerated in prisons, county
  jails, local lockups, and juvenile detention centers across the state”). Moreover, the trial
  court clearly erred by failing to adequately consider the defendant’s documented health
  conditions. Accordingly, we REMAND this case to the Antrim Circuit Court for
  reconsideration of the defendant’s motion in light of this order and the defendant’s current
  medical condition. We do not retain jurisdiction.



                            I, Larry S. Royster, 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.
                            May 13, 2020
         b0512p
                                                                                Clerk
