Order                                                                      Michigan Supreme Court
                                                                                 Lansing, Michigan

  December 27, 2018                                                                Stephen J. Markman,
                                                                                              Chief Justice

  157388 & (141)                                                                         Brian K. Zahra
                                                                                 Bridget M. McCormack
                                                                                       David F. Viviano
                                                                                   Richard H. Bernstein
                                                                                        Kurtis T. Wilder
  PEOPLE OF THE STATE OF MICHIGAN,                                                Elizabeth T. Clement,
            Plaintiff-Appellant/                                                                   Justices
            Cross-Appellee,
  v                                                      SC: 157388
                                                         COA: 327799
                                                         Macomb CC: 2014-000167-FC
  JOHN BUTSINAS,
            Defendant-Appellee/
            Cross-Appellant.

  _________________________________________/

         On order of the Court, the application for leave to appeal the January 23, 2018
  judgment of the Court of Appeals, and the application for leave to appeal as
  cross-appellant are considered, and they are DENIED, because we are not persuaded that
  the questions presented should be reviewed by this Court.

        MARKMAN, C.J. (dissenting).

         I respectfully dissent from this Court’s order denying leave to appeal. The Court
  of Appeals in a split decision held that defendant was entitled to a new trial because the
  prosecutor violated his duty to disclose exculpatory and impeachment evidence to the
  defense under Brady v Maryland, 373 US 83 (1963), by failing to disclose two reports
  that had been prepared by Child Protective Services (CPS) in 2010 and 2013 concerning
  alleged sexual abuse by defendant. People v Butsinas, unpublished per curiam opinion of
  the Court of Appeals, issued January 23, 2018 (Docket Nos. 327796 and 327799). Judge
  O’BRIEN dissented with respect to the granting of a new trial, concluding that it was “not
  necessary because the reports are not material when viewed in totality.” Butsinas, unpub
  op at 2 (O’BRIEN, J., concurring in part and dissenting in part).

          “[T]he components of a ‘true Brady violation,’ are that: (1) the prosecution has
  suppressed evidence; (2) that is favorable to the accused; and (3) that is material.”
  People v Chenault, 495 Mich 142, 150 (2014). “To establish materiality, a defendant
  must show that ‘there is a reasonable probability that, had the evidence been disclosed to
  the defense, the result of the proceeding would have been different.’ ” Id., quoting
  United States v Bagley, 473 US 667, 682 (1985). I do not address at this time whether
  knowledge of the CPS reports should be imputed to the prosecutor for the purposes of the
  first Brady component, see Kyles v Whitley, 514 US 419, 437 (1995) (explaining that “the
  individual prosecutor has a duty to learn of any favorable evidence known to the others
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acting on the government’s behalf in the case”), 1 nor do I address whether the CPS
reports were “favorable to the accused,” because for the reasons thoroughly explained by
Judge O’BRIEN, the third component, the requirement of materiality, was not satisfied
here.

        Concerning the 2010 CPS report, which indicates that the victim failed to inform
CPS during that investigation that she had been abused by defendant, I fail to discern how
defendant would have been acquitted had defense counsel been in possession of this
report largely because the information therein is cumulative to the information presented
at trial given that all witnesses, including the victim herself, agreed that she never
disclosed such abuse to anyone at the time. Furthermore, the victim’s sister testified at
trial that she had filed a complaint with CPS around 2010 regarding defendant and that
nothing resulted from her complaint. Indeed, during closing arguments, defense counsel
observed that if a complaint had been filed with CPS by the victim’s sister, defendant was
presumably vindicated. Given these circumstances, the jury likely inferred that CPS


1
 Caselaw from other jurisdictions suggests that it is far from settled that CPS is an agent
of the prosecutor for the purposes of Brady. See, e.g., Harm v State, 183 SW3d 403, 407
(Tex Crim App, 2006) (“CPS is charged with protecting the welfare and safety of
children in the community. This duty may entail the investigation of child-abuse claims,
but that alone does not automatically transform CPS case workers into law-enforcement
officers or state agents.”); People v Terry, 19 App Div 3d 1039, 1039 (2005) (“[T]he
[CPS] report itself, if indeed one exists, is not Brady material because the prosecutor
never possessed it.”).
       Furthermore, with regard to the “suppression” aspect of the first Brady
component, I note that defense counsel indicated during the Ginther hearing that he had
been aware of the existence of the CPS reports and that those, in fact, may have been
obtained by defendant prior to trial because he was “[a] person named in the report or
record as a perpetrator or alleged perpetrator of the child abuse . . . .” MCL
722.627(2)(f); see also People v Ginther, 390 Mich 436 (1973). See also Michigan
Department of Health and Human Services, Services Requirements Manual, SRM 131
(September 1, 2015), pp 14, 16 (providing that “children’s protective services case
information or records” may be released to “[a] person named in a children’s protective
services investigation report as a perpetrator or alleged perpetrator of child abuse or
neglect”), available at <https://dhhs.michigan.gov/OLMWeb/ex/SR/Mobile/SRM/
SRM%20Mobile.pdf (accessed December 20, 2018)> [https://perma.cc/N4YT-PY8J].
While it is true that “a diligence requirement is not supported by Brady or its progeny,”
Chenault, 495 Mich at 146, it is also true that “evidence that the defense knew of
favorable evidence will reduce the likelihood that the defendant can establish that the
evidence was suppressed for purposes of a Brady claim,” id. at 155 (emphasis added).
The Court of Appeals engaged in no significant analysis concerning whether one or both
of the CPS reports were genuinely “suppressed” by the prosecutor.
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interviewed the victim around 2010 and she did not disclose that defendant was abusing
her.

         In concluding that possession of the 2010 CPS report would have aided the
defense, the Court of Appeals reasoned that defense counsel “likely would have”
presented a witness “to educate the jury regarding the techniques routinely employed to
elicit truthful information in similar circumstances” and that such a witness “could have”
been used by defense counsel to illustrate for the jury “the general accuracy and
reliability of forensic interviews and interviewing techniques.” Butsinas, unpub op at 11.
However, as defendant himself acknowledges in his answer to the prosecutor’s
application for leave to appeal, “[t]he defense [in fact] presented Katherine Okra as an
expert in forensic interview protocol,” and Dr. Okra testified at length about that
protocol. And as explained previously, the jury likely inferred that the victim had been
interviewed by CPS in 2010, but that she did not disclose the abuse to CPS at that time.
That is, the jury likely inferred that the victim did not disclose the abuse despite the
forensic interview protocol. Consequently, the hypothetical offered by the Court of
Appeals actually occurred at trial-- a witness apprised the jury concerning forensic
interview protocol-- and it is thus unwarranted to grant a new trial in large part so that
defendant can present the same evidence once more.

        Concerning the 2013 CPS report, that report would likely have been even less
helpful to the defense than the 2010 CPS report. First, the 2013 CPS report contradicted
a police officer’s testimony concerning the reason why the victim was not interviewed at
Care House in 2013, but I fail to discern the significance of this contradiction in assessing
whether defendant was guilty of the charged offenses. Second, the report indicated that
the victim told the police that she had been sexually abused during the day, whereas she
testified at trial that she was sexually abused at night. In my judgment, this is a relatively
minor detail that would not have been given significant weight by the jury, given that the
sexual assaults occurred both repeatedly and several years earlier. Third, the report
indicated that the victim’s sister disliked defendant, but this fact was also minimally
relevant because the entire case was predicated on the victim’s allegations. Put simply, as
Judge O’BRIEN observed, the 2013 CPS report only includes “inconsequential pieces of
impeachment evidence, which do not, in any conceivable way, undermine confidence in
the jury verdict.” Butsinas, unpub op at 3 (O’BRIEN, J., concurring in part and dissenting
in part).

      To summarize, the CPS reports here were not “material” under Brady and the
Court of Appeals erred by concluding otherwise. Accordingly, I would reverse the Court
of Appeals’ ruling that defendant was entitled to a new trial on the basis of the
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alleged Brady violation and remand to that court to address defendant’s remaining
arguments that have not yet been addressed.

      ZAHRA and WILDER, JJ., join the statement of MARKMAN, C.J.




                       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.
                       December 27, 2018
      t1226
                                                                           Clerk
