Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  September 25, 2019                                                               Bridget M. McCormack,
                                                                                                 Chief Justice

  159080                                                                                David F. Viviano,
                                                                                        Chief Justice Pro Tem

                                                                                      Stephen J. Markman
                                                                                           Brian K. Zahra
                                                                                     Richard H. Bernstein
  PEOPLE OF THE STATE OF MICHIGAN,                                                   Elizabeth T. Clement
            Plaintiff-Appellee,                                                      Megan K. Cavanagh,
                                                                                                      Justices

  v                                                        SC: 159080
                                                           COA: 335911
                                                           Macomb CC: 15-003612-FC
  HILARY MARTINE ULP,
           Defendant-Appellant.

  _________________________________________/

          On order of the Court, the application for leave to appeal the December 11, 2018
  judgment of the Court of Appeals is considered. Pursuant to MCR 7.305(H)(1), in lieu of
  granting leave to appeal, we REVERSE Part III of the Court of Appeals opinion and
  VACATE the August 10, 2017 and July 27, 2018 orders of the Macomb Circuit Court
  denying the defendant’s postjudgment motions seeking an expert and discovery to aid in
  her appeal. The lower courts erred in concluding that defendant has failed to cite any
  authority in support of her claim that she is entitled to expert assistance at public expense
  in the context of a postjudgment Ginther hearing. See People v Kennedy, 502 Mich 206
  (2018). Although the Court in Kennedy examined a claim in which funding for an expert
  was denied at the pretrial stage, neither Kennedy nor the constitutional rule on which it is
  based supports the circuit court’s analysis. The circuit court concluded that Kennedy did
  not apply to the defendant’s postjudgment motions because it applied only if “ ‘defendant
  made a sufficient showing that there exists a reasonable probability both that an expert
  would be of assistance to the defense and that denial of expert assistance would result in a
  fundamentally unfair trial.’ ” People v Ulp, opinion and order of the Macomb Circuit
  Court, issued July 27, 2018 (Case No. 2015-3612-FC), p 4, quoting Kennedy, 502 Mich
  at 228 (emphasis in Ulp). But as explained in Kennedy and Ake v Oklahoma, 470 US 68
  (1985), the due process principles are not so limited. See Kennedy, 502 Mich at 218
  (stating that “[o]ne thing about Ake is clear: it sets forth the due process analysis that a
  court must use when an indigent criminal defendant claims he or she has not been
  provided ‘the basic tools of an adequate defense’ and therefore did not have ‘an adequate
                                                                                                               2

opportunity to present [his or her] claims fairly within the adversarial system’ ”), quoting
Ake, 470 US at 77; see also Kennedy, 502 Mich at 214, quoting Ake, 470 US at 77
(stating that “ ‘fundamental fairness entitles indigent defendants to an adequate
opportunity to present their claims fairly within the adversarial system. To implement
this principle, we have focused on identifying the basic tools of an adequate defense or
appeal, and we have required that such tools be provided to those defendants who cannot
afford to pay for them’ ”) (emphasis added); Ake, 470 US at 83 (requiring the
appointment of an expert to “assist in evaluation, preparation, and presentation of the
defense”); McWilliams v Dunn, 582 US ___, ___; 137 S Ct 1790, 1799 (2017)
(reaffirming that Ake “clearly established” this right). We REMAND this case to the
Macomb Circuit Court for reconsideration of the defendant’s postjudgment motions on
the merits.

       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.
                         September 25, 2019
       p0918
                                                                             Clerk
