Judicial misconduct; Whether ex parte communications warranted granting defendant a new trial under MCR 6.431(B); Whether the trial judge should have recused herself under MCR 2.003(C)(1)(b)(ii); Liljeberg v Health Servs Acquisition Corp; United States v Gagnon; Whether the trial judge’s failure to recuse herself resulted in a miscarriage of justice; Motion for a new trial; The appearance of impropriety standard in Canon 2 of the Michigan Code of Judicial Conduct; Prohibition against ex parte communications under Canon 3(A)(4); Principle that a defendant must do more than show a violation of the Michigan Code of Judicial Conduct; Harmless error; People v Lukity; Right to a fair trial; Judicial bias; Distinguishing United States v Barnwell (6th Cir); Right to be present; Right to counsel

The lead opinion held that although the trial judge should have recused herself under MCR 2.003(C)(1)(b)(ii), her failure to do so did not result in a miscarriage of justice, and defendant was not deprived of any constitutional rights. He was convicted of CSC I, II, and III. While his appeal was pending, he and his attorney learned that, during his trial, the trial judge exchanged several e-mails with the county prosecutor (who was not the prosecutor on the case at trial) about testimony of a state trooper and a detective. In the e-mails, she “expressed concern about mistakes law enforcement had made in the investigation and asked questions related to why” they occurred. She “never notified defendant or defense counsel of these e-mails or their contents.” He moved for a new trial. The trial court (after a new judge was assigned) granted the motion. The Court of Appeals reversed in a split decision, finding the trial court abused its discretion in doing so. The dissent would have applied the standard articulated in Liljeberg to find the trial court did not abuse its discretion. On appeal, the lead opinion first concluded that because “the trial judge’s ex parte communications with [the county prosecutor] were not made for the purpose of managing or executing a pending or impending proceeding, they violated Canon 3(A)(4)(a).” In addition, she “should have known that grounds for her disqualification might have existed under MCR 2.003(C)(1)(b)(ii). Under Canon 3(C), she should have raised the issue of her disqualification sua sponte, and she should have recused herself.” However, her failure to do so “did not result in a miscarriage of justice” because it had no effect on the fact-finder. The lead opinion rejected defendant’s claim that the trial judge’s ex parte communications with the prosecutor violated his right to due process, his right to be present, and his right to counsel. “Altogether, the trial judge’s ex parte communications here were not of such a character, substance, or extent as to suggest that the trial judge was actually biased or that the probability she was actually biased was too high to be constitutionally tolerable.” And there was “nothing to suggest that the trial prosecutor altered her strategy in response to the trial judge’s ex parte communications the” county prosecutor. The court affirmed the Court of Appeals.

Concurring in part and dissenting in part, Justice Welch, joined by Justice Cavanagh, opined that the court was “not precluded from holding that a miscarriage of justice occurred for purposes of MCL 769.26 and MCR 6.431(B).” She would “not apply traditional harmless error review under these circumstances and would instead augment the harmless error analysis by adopting the test articulated in” Liljeberg and would remand “to examine the harmless error standard through” that framework.

Also concurring in part and dissenting in part, Justice Bolden found that whether the trial judge violated the judicial canons was unnecessary for the court “to address while determining whether there was either a constitutional violation or a miscarriage of justice. Although defendant seeks to adopt Liljeberg as the framework for resolving these issues,” she agreed “with the lead opinion that Liljeberg does not provide the proper approach for criminal trials.” She joined the lead opinion in affirming.

Dissenting, Justice Bernstein indicated he would adopt the Barnwell test to address issues posed by ex parte communications between a judge and a prosecutor. However, because “the parties have not had an opportunity to fully brief an argument under this test,” he would “adopt the Barnwell test and remand,” permitting the parties an opportunity to fully brief this issue.