County attorney goes to Washington

December 7, 2009
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Even though he downplayed his role as that of an understudy to a lead actor, Kent County Assistant Prosecuting Attorney Tim McMorrow actually will realize almost every lawyer’s definitive dream late next month.

McMorrow, who heads the office’s appellate division, is going to the U.S. Supreme Court.

On Jan. 20, McMorrow will appear before the nine justices of the nation’s highest court as a member of a three-person legal team representing Michigan courts. The team will try to convince the justices that the jury in a 16-year-old murder conviction was demographically characteristic of the county’s population.

McMorrow will join state Attorney General Mike Cox and state Solicitor General Eric Restuccia at the petitioner’s table. Restuccia will present the state’s case.

McMorrow said it was exciting for him to be part of the team and he gave all the credit for being on it to Kent County Prosecutor William Forsyth. He said Forsyth told Cox that he needed to have a reserve ready in case Restuccia couldn’t argue the case for some reason and suggested that McMorrow, who has been with the local office for nearly 28 years, be that person.

“It’s kind of being like an understudy in a Broadway play. It’s a thrill to get that close, but the assumption is that Eric will be arguing. There’s no reason he wouldn’t be,” he said.

“But I get to go to Washington and I get to sit in the Supreme Court. I get the pen they give you when you appear before the Supreme Court. So it is kind of fun and interesting,” added McMorrow, who has always served in the county’s appellate division.

It is very rare for any assistant county prosecutor from any county to appear before that court, as almost all cases heard there involve state attorneys. McMorrow said Restuccia was the one who told him that the Supreme Court justices agreed to hear the case.

“We’ve been talking quite a bit about it in terms of what are our chances of retrying the case if we don’t prevail, what issues are being raised. And especially since I did a great deal of the legwork in the state courts — I handled the hearings in the state courts — I knew the facts pretty well in the case. They kept us pretty well apprised of what was going on,” said McMorrow.

A Kent County Circuit Court jury found Diapolis Smith guilty of second-degree murder in 1993 for shooting Christopher Rumbly in the chest at a Grand Rapids bar in 1991. Smith was sentenced to life imprisonment.

But Smith, an African-American, claimed that the jury pool didn’t contain an appropriate number of blacks from which to chose a jury and appealed to the state Court of Appeals. The state appellate court reversed the jury’s guilty conviction, but the Michigan Supreme Court later reinstated it. The state’s top justices found that the pool’s 6 percent representation of blacks was close enough to the county’s African-American population of 7.28 percent during that timeframe, and they said the selection process did not violate Smith’s constitutional rights.

Smith then took the case to federal District Court, where he lost again. The U.S. Sixth Circuit Court of Appeals, however, reversed the district court’s ruling saying the state’s top court failed to properly apply a U.S. Supreme Court precedent from Duren v. Missouri. Now the case, known as Berghuis v. Smith, is on the nation’s top court’s docket as a federal habeas corpus case.

The “Berghuis” in the case is a prison warden, Mary Berghuis. Smith is required to name a warden in his legal filing for habeas corpus relief. For Smith to get relief and maybe a new trial, a majority of the justices have to find that a state court decision was contrary to, or an unreasonable application of, existing Supreme Court precedents.

Although McMorrow’s very first trip to the Supreme Court is a bit more than six anxious weeks away, a ruling may not come for another six months.

“They never make a decision from the bench. After the arguments are given, they will have a conference about the case, which the public is never invited to, of course. The case will be assigned to one justice to write, and then the opinion will come out,” he said.

“It could come out shortly after the arguments. The term of the U.S. Supreme Court ends at the end of June, so all decisions will be out by June — so somewhere between the end of January and June.”

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