County attorney goes before top court

June 1, 2010
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Kent County Assistant Prosecuting Attorney Tim McMorrow made his first appearance before the U.S. Supreme Court earlier this year. He was part of a state legal team that won a unanimous decision from a court that is more widely known for its split decisions.

McMorrow appeared before the nation’s highest court with Michigan Solicitor General Eric Restuccia and Assistant Attorney General Joel McGormley. Their case was first on the court’s docket that day.

“The courtroom is not all that terribly big. When I was sitting there, I don’t think I was more than six or seven feet away from Justice (Samuel) Alito as the case was being argued. Of course, I stayed seated the whole time because I wasn’t the arguing attorney. But you’re so close, it’s really amazing,” said McMorrow, who has been with the county’s prosecutor’s office for 28 years.

McMorrow said an attorney who argues a case to Chief Justice John Roberts is so close to the bench that he or she isn’t able to clearly see the other justices seated to the right and left of Roberts.

“You’re just so amazingly close to them. That always surprises people when they see courtrooms and appellate courtrooms,” he said. “It’s true in the Michigan Supreme Court, for example, where you’re really quite close to the justices. But I think you’re even closer in the U.S. Supreme Court.”

McMorrow said he spent about 80 minutes at the table, with the first 20 minutes being allocated to a ceremony that admits new attorneys to the court. “They had several people there. There were three men who were sponsoring their wives for admission to the Supreme Court,” said McMorrow, who was admitted in 1987 but through the mailing process.

The arguments in Berghuis v. Smith, which were made by Restuccia for the state and James Lawrence for convicted murderer Diapolis Smith, took about an hour, and both attorneys faced a lot of questions from all but one of the justices.

“There were tons of questions. Everyone asked a question except for Justice (Clarence) Thomas, who is famous for never asking any questions,” said McMorrow.

The case involved a second-degree murder conviction. In 1993, a Kent County Circuit Court jury found Smith guilty of shooting Christopher Rumbly in the chest at a Grand Rapids bar in 1991. Smith was sentenced to life imprisonment.

Smith, an African-American, appealed the verdict, claiming the jury pool didn’t contain an appropriate number of blacks. The Michigan Court of Appeals agreed and reversed the guilty conviction, but the Michigan Supreme Court later reinstated it. The state’s highest court felt the pool’s 6 percent representation of blacks was close enough to the county’s African-American population of 7.28 percent back then, and said Smith’s constitutional rights were not violated through the jury pool.

The Federal District Court upheld the Michigan Supreme Court’s ruling. The U.S. Sixth Circuit Court of Appeals, however, overturned the district court’s ruling and the case then went to the U.S. Supreme Court in January. Those nine justices delivered their opinion in late March, unanimously ruling that the Michigan Supreme Court did not err in its decision, that the Federal appeals court did, and that the 17-year-old county circuit court decision was valid.

“We would have had to retry Mr. Smith and that would have been very difficult,” said McMorrow, if the decision had gone the other way.

“It’s been many, many years, and it was a barroom brawl case. Whether we would be able to find the witnesses is questionable. We don’t know what we would have been able to do. But that’s what we would have had to do.”

McMorrow said the court’s unanimous decision said more about the law of habeas corpus in all cases than it did about the state’s specific case.

“Basically, the law of habeas corpus says a federal court is not supposed to overturn a state court’s decision unless a state court basically ignored what the U.S. Supreme Court had previously said. The Federal Court of Appeals decision really was extremely puzzling,” he said.

“I think what the U.S. Supreme Court has basically said to the federal court — and not just in this case but in other cases — is you don’t set aside a state court’s decision just because you personally don’t like it. It’s got to be that they really didn’t properly apply federal law as decided by the U.S. Supreme Court. I think that’s what they were saying more than anything else. We were very happy it was unanimous.”

McMorrow and the other attorneys didn’t enter the 75-year-old historic court building through its venerable front entrance. He said attorneys with a case before the court enter through a different door and are taken to a lounge where the Clerk of the Court explains the court’s protocol and asks if they need anything. McMorrow said he has entered the building via the revered 44-step entrance as a visitor. But since his appearance before the court, the front entry with its eight magnificent columns has been closed to the public due to concerns over security.

“It’s too bad. It’s sort of a bad symbolism. That morning there was a line of people to get into the court, and they were going through the front entrance,” he said. “You walk up many, many steps. It’s like an old Greek building, like a mini-Parthenon in a way. When you walk in, it really is magnificent. Marble is everywhere and the sounds echo.”

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