The Appeals Process

The Appeals Process Explained

We have now entered the appeals process, which will likely take some time.  We would like to provide a short explanation of how this process will work. If you are interested, you may also see this process in chart form.

On November 5, 2015, Judge Cavanaugh denied the request for an evidentiary hearing on the motion for a new trial and the actual motion for a new trial.

Josh’s attorneys argued in the motion that he was entitled to a new trial based on several claims of ineffective assistance of counsel. One of these claims was that his defense attorney should have requested a Daubert hearing. A Daubert hearing determines whether an expert witness’s claims have the necessary scientific basis to be used in court. The motion argued that several claims made by the U of M Child Abuse Pediatrician (Dr. Bethany Mohr) were scientifically unreliable.  Of particular interest is her claim that Naomi’s retinal hemorrhages, in combination with some of the bleeding in her brain, were nearly 100% diagnostic of abuse.

The Michigan Innocence Clinic will file an appeal of the November 5th hearing with the Michigan Court of Appeals.  They will ask the appellate court to remand (send back) the case to the trial court for an evidentiary hearing on the ineffective assistance of counsel claims. The trial court is the circuit court in Livingston County where the case was originally tried. The Clinic will also ask for a new trial based on the court record as it already exists.

Please note that Josh’s attorneys had the option to go directly to the Michigan Court of Appeals, but in order to make a record for the ineffective assistance of counsel claims, chose to first request an evidentiary hearing in the trial court before Judge Cavanaugh.

At this point, the Michigan Court of Appeals could:

  • grant the request for an evidentiary hearing,
  • grant a new trial, or
  • deny the hearing and the new trial.

If the Court of Appeals remands for an evidentiary hearing, this hearing would be held in Livingston County. If the Court of Appeals denies the hearing or the new trial, there would still be an option to appeal to the Michigan Supreme Court. Appeals to the Michigan Supreme Court are discretionary, meaning the Supreme Court would first have to agree to hear the case. This is different from the Court of Appeals where the Court must hear Josh’s appeal.

Note that during these decisions, the Livingston County prosecutor’s office will likely argue against any further progress in this case.

If granted a new trial in Livingston County, it is important to note that Josh, even if he were found guilty a second time, would very likely not serve any additional jail time (unless he were to commit a crime while on probation).

As noted above, the appeals process is a lengthy one which could possibly take years to complete. Our next step is to obtain court transcripts of the November 5th hearing.  In the past, obtaining transcripts in Livingston County has been a process fraught with many delays.

Josh and Brenda are grateful for your enduring support during this long process as they continue to look toward exoneration with hopeful hearts.