The Appeals Issues
The following summary of the main appeals issues in Larry Nevers' case was taken from the actual appeals brief filed with the Michigan Supreme Court. The Issues for Walter Budzyn were virtually identical since both officers were tried together in the same court along with Officer Robert Lessnau. (Nevers and Budzyn had separate juries while Lessnau chose to have his case decided by Judge Crockett. Lessnau was subsequently acquitted of assault.) Another brief summary of these issues and the responses they received from both the Michigan Court of Appeals and the Michigan Supreme Court is detailed in Overwhelming Evidence?
1. The Trial Court's failure to instruct on the prosecution's burden of proving self defense, despite a timely request for that instruction, deprived the defendant of due process and a fair trial!
2. Nevers' second-degree murder conviction should be reversed where the trial court's instructions regarding the use of force by an on-duty police officer engaged in the lawful act of forcefully subduing a criminal suspect were clearly erroneous; where the trial court's erroneous instruction that jurors could infer malice from a police officer's intent to inflict great bodily harm on these facts amounted to manifest injustice; and where the trial court's erroneous instruction on malice rendered the statute unconstitutionally vague as applied to the defendant-police officer in this situation.
3. Where the evidence established multiple possible causes of death, the trial court's refusal to instruct the jury pursuant CJI 2D 16.15, that death must be the natural and necessary result of the defendant's act, deprived the defendant of due process of law and a fair trial.
4. Defendant Nevers was deprived of his right to confrontation of witnesses and of his right to a trial separate from that of his co-defendant when despite an order granting severance, jurors learned of his co-defendant's claim that he "never hit" the deceased, a denial which was factually antagonistic to the testimonial defense of defendant Nevers.
5. The trial court's colloquy with expert witness Michael Baden effectively bolstered this witness' credibility, denigrated the other defense experts and the defense, and deprived defendant-appellant of due process and of a fair trial.
6. A combination of extraneous prejudicial influences, including massive negative pretrial publicity, a pattern of deep and bitter prejudice in the community, repeated and egregious incidents of juror taint, and the showing of video footage of the Rodney King beating and the movie "Malcolm X" to both juries at the close of the trial deprived defendants of their due process right to a fair trial by an impartial jury.
7. Where the defendant demonstrated prior to trial and then again during voir dire both pervasive pretrial publicity adverse to the defendant and a pattern of deep and bitter prejudice in the community, and where subsequent incidents during trial compounded the prejudice occasioned by a trial in this city, the refusal to grant defendant's motion for change of venue was an error which deprived defendant of his due process right to a fair trial by an impartial jury.
8. The prosecutor's deliberate injection of inadmissible evidence of a prior "roust" of civilians by the defendant, a police officer, amounted to prosecutorial misconduct which deprived defendant of a fair trial.
9. The evidence at trial as to defendant Nevers was insufficient to sustain a verdict of second degree murder where the prosecution failed to show that the blows inflicted by defendant were the proximate cause of the death, where defendant lacked an intent to kill, and where defendant was orally less at fault because the incident occurred as defendant was on duty as a police officer actively engaged in the lawful act of subduing a felony suspect resisting arrest, and consequently the trial court's failure to afford relief on this ground was clearly erroneous resulting in manifest injustice to the defendant.
10. The withholding of exculpatory and impeaching evidence as to the cause of death, and the presentation by the prosecution of inaccurate, incomplete and false testimony concerning the cause of death deprived defendants of their due process right to a fair trial.
11. The suppression of evidence of impeachment as to monetary rewards to witnesses and as to other inducements relating to pending charges against prosecution witnesses, and the failure of correct false testimony of a prosecution witness regarding monetary rewards deprived defendants of their right to the full and effective confrontation of witnesses and of their due process right to a fair trial.
12. The trial court's admission of hearsay testimony of an EMS driver at the scene that he told his supervisor nearly two hours after the incident that he had witnessed a "police brutality murder" was clearly erroneous and deprived defendant-appellant of a fair trial.
The next link in consecutive order is The Text of the Michigan Supreme Court Ruling or skip to The Eleventh Hour.