Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  May 17, 2019                                                                   Bridget M. McCormack,
                                                                                               Chief Justice

  156806                                                                              David F. Viviano,
                                                                                      Chief Justice Pro Tem

  PEOPLE OF THE STATE OF MICHIGAN,                                                  Stephen J. Markman
            Plaintiff-Appellee,                                                          Brian K. Zahra
                                                                                   Richard H. Bernstein
  v                                                      SC: 156806                Elizabeth T. Clement
                                                         COA: 325782               Megan K. Cavanagh,
                                                                                                    Justices
  GARY PATRICK LEWIS,                                    Wayne CC: 14-006454-FH
             Defendant-Appellant.
  _________________________________________/

        On order of the Court, the application for leave to appeal the November 2, 2017
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

         MCCORMACK, C.J. (concurring).

         I concur in the order denying leave to appeal and write separately to highlight two
  errors I believe the Court of Appeals made in its published opinion and to reiterate my
  hope that the United States Supreme Court will clarify the proper application of
  harmless-error analysis in this context. Given the current law, I cannot say that the Court
  of Appeals erred in its conclusion that the error here was harmless. I reluctantly agree
  with the order denying leave to appeal.

         I think the Court of Appeals’ analysis of the first factor that Coleman v Alabama,
  399 US 1 (1970), identifies as important to the role for counsel at a preliminary
  examination is flawed. The first Coleman factor is “the lawyer’s skilled examination and
  cross-examination of witnesses may expose fatal weaknesses in the State’s case that may
  lead the magistrate to refuse to bind the accused over.” Id. at 9. The panel reasoned that
  “[g]iven that defendant was convicted at trial on the basis of sufficient evidence, the
  possibility that counsel could have detected preclusive flaws in the prosecution’s
  probable-cause showing is moot.” People v Lewis (On Remand), 322 Mich App 22, 31
  (2017). But in our prior opinion, we explained that Coleman does not permit a court to
  presume that if a defendant is ultimately convicted after a fair trial, he suffered no harm
  from the deprivation of counsel at the preliminary examination. People v Lewis, 501
  Mich 1, 11 (2017). While the Court of Appeals cited that passage in its analysis, it
  nonetheless stated that the fact of the conviction “is relevant to our consideration of the
  first Coleman factor.” Lewis (On Remand), 322 Mich App at 31. Whatever the
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correctness of that statement (and I express no opinion on it), the panel then said that the
defendant’s conviction made this factor moot. That is, the Court of Appeals seemingly
made the fact of the conviction at trial dispositive to its analysis of the first factor, which
this Court said is not permissible. 1

        The panel’s analysis of the second Coleman factor is also flawed. That factor is
“the skilled interrogation of witnesses by an experienced lawyer can fashion a vital
impeachment tool for use in cross-examination of the State’s witnesses at the trial, or
preserve testimony favorable to the accused of a witness who does not appear at the
trial.” Coleman, 399 US at 9. The Court of Appeals relied heavily on the fact that trial
counsel was given a transcript of the preliminary examination in concluding that this
factor weighed in favor of finding the error harmless. But this misses the point: a
transcript of a preliminary examination conducted without the benefit of defense counsel
doesn’t address the problem that the prosecution’s witnesses were not cross-examined at
that hearing. And like the panel’s analysis of the first factor, this reasoning would result
in finding error harmless in every case conducted in absence of defense counsel:
preparing a transcript isn’t the problem; it’s that the transcript is unhelpful. Thus,
counsel’s possession of the preliminary examination transcript is entitled to little weight
in the analysis.

        Despite these flaws, I believe the Court of Appeals correctly concluded that any
error in depriving the defendant of counsel at the preliminary examination was harmless.
The panel correctly analyzed the remaining Coleman factors and specific circumstances
of this case. But I reach this conclusion largely because Coleman takes “the two perhaps
most intuitive options for assessing harm off the table,” Lewis, 501 Mich at 12, leaving
reviewing courts without much guidance about how to apply harmless-error review in
this context. Guidance from the United States Supreme Court would be welcome. I hope
that Court will either provide such guidance or clarify “whether the Coleman harmless-
error review remains a sustainable rule when a defendant is denied counsel at a
preliminary examination.” Lewis, 501 Mich at 16 (MCCORMACK, J., concurring).

       BERNSTEIN and CLEMENT, JJ., join the statement of MCCORMACK, C.J.


1
  The Court of Appeals cited Coleman in support of its analysis of this factor, but its
citation was to Justice White’s concurring opinion, which of course is nonbinding. Lewis
(On Remand), 322 Mich App at 31, citing Coleman, 399 US at 18 (White, J., concurring).



                          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 17, 2019
        a0514
                                                                              Clerk
