STATE OF MICHIGAN

IN THE COURT OF APPEALS

PEOPLE OF THE STATE

OF MICHIGAN,

Plaintiff-Appellee,

v Case No. ________

KEYARA SHARNICE MAJEED, Circuit Court No. 22-03779-FH

Defendant-Appellant. District Court No. 22-FY-0284

___________________________________________/

Philip Mayor (P81691) Lawrence J. Boivin (P69291)

Daniel S. Korobkin (P72842) Christopher Becker (P53752)
American Civil Liberties Union Kent County Prosecutor’s Office
Fund of Michigan 82 Ionia Ave NW
2966 Woodward Ave. Grand Rapids, MI 49503
Detroit, MI 48201 lawrence.boivin@kentcountymi.gov
(313) 578-6803 (w); (617) 817-2229(c) chris.becker@kentcountymi.gov
Attorneys for Defendant-Appellant appeals@kentcountymi.gov
(616) 632-6661
Matthew T. Berry (P79621) Attorneys for Plaintiff-Appellee
Buswa & Berry, PLLC
146 Monroe Center St. NW, Suite 730

RECEIVED by MCOA 8/4/2022 5:19:34 PM

Grand Rapids, MI 49503
(616) 622-3064 (w); (616) 856-1890 (c)
mberry@buswaberry.com
Co-counsel for Defendant-Appellant
___________________________________________ /

EMERGENCY MOTION FOR MODIFICATION OF RELEASE DECISION

Defendant Keyara Sharnice Majeed appeals by right, pursuant to MCR 6.106(H),

requesting review of the circuit court’s decision to increase her bond, sua sponte, from a personal

bond to a $25,000 cash/surety bond moments after Ms. Majeed indicated that she wished to

proceed to trial rather than accept a plea bargain. She also appeals the circuit court’s related
decision to impose weekly drug testing as a condition of release even once bond is posted. The

circuit court took these actions despite the fact that Ms. Majeed has no prior criminal record, is

charged only with property crimes related to a single incident in which she is accused of stealing

a friend’s smart phone and transferring less than $1,000 to herself from the phone, and she had

been fully compliant with her release conditions for over three months at the time her bond was

increased. The circuit court imposed this draconian sua sponte increase in bond immediately after

Ms. Majeed declined a plea bargain and exercised her constitutional right to proceed to trial.

Unfortunately, the circuit court’s actions here reflect an ongoing pattern by this particular

judge. Court records reflect that Chief Judge Trusock of the 17th Circuit Court routinely and

repeatedly increases bond by enormous amounts immediately after defendants assert their

innocence and opt to proceed to trial. In 2021, this Court twice vacated bond in cases in which the

same judge exhibited the same practice. See People v Forbes, unpublished order of the Court of

Appeals, issued June 23, 2021 (Docket No. 357529), attached as Exhibit A; People v Contreras-

Reyes, unpublished order of the Court of Appeals, issued July 1, 2021 (Docket No. 357628),

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attached as Exhibit B. Despite these two appellate decisions, Chief Judge Trusock has continued

an unconstitutional and coercive practice of drastically increasing bond immediately after criminal

defendants reject plea bargains, with this case being only the latest example.

As set forth in the attached brief, the circuit court’s bail order was an abuse of discretion

and violated Ms. Majeed’s constitutional rights in light of the following:

1. Ms. Majeed is a 19-year-old woman who faces three non-violent charges, all

relating to a single incident in which she is alleged to have stolen a friend’s smart phone and then

transferred approximately $700 to herself from an application on the alleged victim’s phone. See

Exhibit C (police report and summons).

2
 2. On February 28, 2022, Ms. Majeed was charged by information with three charges

relating to the incident: larceny of $1,000 or more but less than $20,000 (MCL 750.356(3)(a));

illegal use of a financial transaction device (MCL 750.157q); and interfering with electronic

communications (750.540(5)(a)). Exhibit C. Instead of being arrested, she was served with a

notice to appear in the 61st District Court on March 15.

3. On March 15, she appeared as instructed. She was arraigned, given a $5,000

personal bond, and was released with the additional condition that she have no contact with the

alleged victim and that she report to court services and remain under supervision as directed until

the final disposition of her case. See Exhibits D (District Court Register of Actions), F (Order of

Special Conditions of Bond). She was further instructed to appear for a preliminary examination

on March 29.

4. Ms. Majeed appeared as instructed for her preliminary examination on March 29,

and the hearing was adjourned due to the absence of a witness. Ms. Majeed again appeared at the

rescheduled examination on April 5, and the hearing was adjourned again because of the absence

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of a witness. Ms. Majeed appeared, yet again, at the rescheduled hearing on April 19. See Exhibit

D.

5. At the preliminary examination, the alleged victim himself testified that Ms.

Majeed did not touch his body or harm him physically in any way during the alleged theft. See

Exhibit E (transcript of preliminary examination), pp 15:23–16:6. Although the district court

found probable cause sufficient to bind Ms. Majeed over, it also recognized that there was

conflicting testimony as to whether she committed the charged offense and indicated that based on

the evidence presented “I would doubt that the People could sustain a conviction beyond a

reasonable doubt.” Exhibit E, p 67:16–17.

3
 6. On April 27, the circuit court continued Ms. Majeed’s $5,000 personal bond.

Exhibit G (Circuit Court Register of Actions).

7. On June 27, the circuit court held a status conference, which Ms. Majeed attended

as required. During the three-and-one-half months since she was arraigned, there had been no

allegations whatsoever that Ms. Majeed violated the terms of her release conditions in any way; in

other words, there were no allegations that she contacted the alleged victim or failed to report to

court services as required, and she has appeared in both district and circuit court on every occasion

as required. Exhibit H, p 7 (transcript of June 27 hearing in which defense counsel represents that

Ms. Majeed had complied with all terms of release without contradiction from the prosecutor); see

also Exhibit I (letter from Kent County Court Services affirming that Ms. Majeed has complied

with all release conditions).

8. At that status conference, counsel for Ms. Majeed informed the circuit court that

Ms. Majeed was not accepting a proffered plea bargain to plea to a 1-year misdemeanor and

preferred to proceed to trial. Exhibit H, p 3. The circuit court then went on to warn Ms. Majeed

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of the five-year maximum sentence she could potentially face if she opted to proceed to trial,

without mentioning the guidelines or the actual sentence she was likely to face; the circuit court

then instructed her to speak with her attorney again about the plea bargain. Id., pp 4–5. The

prosecutor interjected to note that Ms. Majeed’s sentencing guidelines would suggest a much lesser

likely sentence of zero to nine months. 1 Id. p 5. The court then went off the record, and when it

returned, Ms. Majeed again indicated her desire to proceed to trial. Id.

9. Immediately thereafter, the circuit court indicated that it was going to require Ms.

1
Furthermore, although not expressly mentioned by the prosecution, because the sentencing
guidelines call for an intermediate sanction, Ms. Majeed’s presumptive sentence under MCL
769.31(b) would involve no jail time at all.

4
Majeed to be drug tested. Exhibit H, p 5. It did so despite the fact that abstaining from alcohol or

drugs were not conditions of her release. See Exhibit F. The circuit court then proceeded to

reconsider Ms. Majeed’s bond sua sponte and without any prompting from the prosecutor

whatsoever. Exhibit H, pp 7–8; see also id. at p 10 (circuit court’s bond modification order). In

doing so, the court did not mention a single fact that would even arguably render Ms. Majeed a

danger to the public or present a risk of non-appearance, and the court ignored defense counsel’s

arguments that Ms. Majeed was stably employed and had been reliably coming to court throughout

this matter, id., p 7. The only fact the court even mentioned is that Ms. Majeed may have smoked

marijuana, id.—which was not a violation of her release order, Exhibit F. The court then vacated

the personal bond and imposed a new bond of $25,000 cash/surety “based on everything that I’ve

seen.” Exhibit H, p 8. The Court also imposed a condition requiring that, if she were released,

Ms. Majeed must take weekly drug tests. Exhibit H, pp 8, 10. The court did so without providing

any explanation as to why the potential consumption of marijuana would in any way affect Ms.

Majeed’s ability to return to court or indicate that she presented a danger to the public. Id.

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10. The circuit court did not even elicit the prosecutor’s position on the issues of bond

or release conditions before (or after) rendering this decision. Exhibit H, pp 7–8.

11. On July 12, defense counsel filed a timely Motion to Reconsider Bond. Exhibits

G, J. The circuit court denied the motion on July 18. Exhibit K.

12. The action taken by the circuit court chief judge here—dramatically increasing cash

bond sua sponte, to an obviously unaffordable amount, immediately after a criminal defendant

declined a plea bargain—reflects a consistent and repeated pattern by this judge. As noted above,

last year this Court twice vacated bond determinations by the same judge in which he engaged in

the same practice. Exhibits A (Forbes), B (Contreras-Reyes).

5
 13. In those two prior cases, the defendants in question presented evidence that the

same judge had done the same thing in at least four other cases in the months surrounding the

events in Forbes and Contreras-Reyes as well as another case from 2019. See Exhibits L–O

(transcript of status conferences and register of actions for each recent case), P (transcript from

2019 case). The defendants further documented that this pattern is so well known by local defense

counsel such that public defenders employed by the Kent County Office of the Defender are forced

to advise their clients, as a matter of course, that declining a plea bargain in Chief Judge Trusock’s

courtroom will likely lead to their being incarcerated until trial due to his practice of drastically

increasing bond in such situations. Exhibit Q (June 11, 2021 affidavit of Christopher Dennie,

director of the Kent County Office of the Defender).

14. Despite this practice having been explicitly brought to this Court’s attention in

Forbes and Contreras-Reyes, and despite this Court’s decision to vacate the bonds imposed in both

of those cases, Chief Judge Trusock has apparently continued the same practice to this day. Since

Forbes and Contreras-Reyes were decided, undersigned counsel have become aware, purely

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through anecdotal reports, of at least three such cases other than this one, which likely represent

only the tip of the iceberg. See Exhibits R–T (recent transcripts of status conferences at which the

same judge has drastically increased bond immediately after a defendant rejects a plea bargain); U

(July 29, 2022 affidavit of Christopher Dennie documenting that Chief Judge Trusock’s practice

remains unchanged).

15. On July 5, 2022, Ms. Majeed posted bond using a bail bondsman. In order to post

bond, Ms. Majeed was forced to find an indemnitor who paid $2,500 to purchase Ms. Majeed’s

pre-trial freedom. As a condition of the contract required by her bondsperson, Ms. Majeed has

been forced to grant the bondsman “control and jurisdiction over you during the term for which

6
the Bond is in effect” including the giving the bondsman the “right to apprehend, arrest, and

surrender you . . . at any time as provided by law.” Exhibit V (contract with bondsman), p 3 ¶ 2.

She was also required to waive various privacy rights and to consent to having a location device

attached to her automobile at the bondsman’s discretion and to allowing the bondsman to track her

mobile phone, id. ¶¶ 6–7, and of course she and her indemnitor are liable to the bondsman for the

full amount of her bond as well as various additional costs if the bond is forfeited for any reason.

She also remains subject to the drug testing condition imposed by the circuit court during her

release.

16. The circuit court’s imposition of cash bond and a drug-testing release condition was

unlawful for several independent, albeit overlapping, reasons.

17. First, the circuit court’s decision violated Ms. Majeed’s right to due process because

it transparently punished her for exercising her constitutional right to proceed to trial. The punitive

nature of the circuit court’s actions is clearly demonstrated by the stark facts of this case, which

do not even arguably establish that Ms. Majeed is a flight risk or danger to the public and by the

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fact that this is not an isolated case, but instead reflects a longstanding practice by this particular

judge that has not abated despite being previously brought to this Court’s attention in two prior

appeals.

18. Second, the circuit court’s imposition of a $25,000 cash/surety bond did not comply

with MCR 6.106(C)–(D) because the court did not make any record finding whatsoever that cash

bail was necessary to address any risk of nonappearance or danger to the public that could not be

addressed through non-financial conditions. In particular, the court did not even acknowledge Ms.

Majeed’s compliance with release conditions for over three months prior to increasing her bond.

Article 1, § 15 of the Michigan Constitution guarantees that “[a]ll persons shall, before conviction,

7
be bailable by sufficient sureties,” except in circumstance not applicable here. Article 1, § 16

provides that “[e]xcessive bail shall not be imposed.” MCR 6.106(C)–(F) implement these rights

and provides that personal recognizance release or unsecured appearance bonds are the default

release options. Where, as here, release conditions are working, imposing cash bond sua sponte

without any new information violates the court rules’ presumption of release, and thus constitutes

an abuse of discretion as a matter of law, as this Court held in Forbes. Exhibit A (“Defendant

conduct while on bond from February 2020 until February 2021 demonstrates that the modification

made by the trial court was not required to ensure defendant’s appearance at court proceedings or

to protect the public.”).

19. Third, the circuit court’s imposition of a condition requiring Ms. Majeed to drug

test weekly even once she posted bond was erroneous as a matter of law and an abuse of discretion.

MCR 6.106(D) provides that conditions prohibiting the use of alcohol or drugs and requiring

testing for such substances are permitted only if the court makes a finding that such conditions are

necessary to “reasonably ensure the appearance of the defendant as required” or to “reasonably

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ensure the safety of the public.” The circuit court made no such finding here, and thus erred as a

matter of law. Furthermore, any such finding would be an abuse of discretion as there was no

evidence whatsoever that Ms. Majeed’s possible consumption of marijuana would jeopardize her

appearing as required or render her a danger to public safety.

*****

Accordingly, Ms. Majeed requests that this Court vacate the $25,000 cash/surety bond

imposed by the circuit court and reinstate her $5,000 personal bond. She also requests that this

court vacate the release condition imposed by the circuit court prohibiting her use of drugs and

requiring her to drug test on a weekly basis.

8
 Finally, Ms. Majeed requests re-assignment to another judge in light of Chief Judge

Trusock’s demonstration of prejudice by having already once punished Ms. Majeed through pre-

trial detention for asserting her constitutional rights.

Respectfully submitted,

/s/Philip Mayor /s/Matthew T. Berry

Philip Mayor (P81691) Matthew T. Berry (P79621)
Daniel S. Korobkin (P72842) Buswa & Berry, PLLC
American Civil Liberties Union 146 Monroe Center St. NW, Ste 730
Fund of Michigan Grand Rapids, MI 49503
2966 Woodward Ave. (616) 622-3064
Detroit, MI 48201 Co-counsel for Defendant-Appellant
(313) 578-6803(w); 617-817-2229(c)
Attorneys for Defendant Date: August 4, 2022

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9
 STATE OF MICHIGAN
IN THE COURT OF APPEALS

PEOPLE OF THE STATE

OF MICHIGAN,

Plaintiff-Appellee,

v Case No. ________

ROBERT FORBES, Circuit Court No. 20-01744-FH

Defendant-Appellant. District Court No. D-2000319-FY

___________________________________________/

Philip Mayor (P81691) Lawrence J. Boivin (P69291)

Daniel S. Korobkin (P72842)
American Civil Liberties Union
Fund of Michigan
2966 Woodward Ave.
Detroit, MI 48201
(313) 578-6803 (w); (617) 817-2229(c)
Attorneys for Defendant-Appellant
Matthew T. Berry (P79621)
Buswa & Berry, PLLC
146 Monroe Center St. NW, Suite 730
Christopher Becker (P53752)
Kent County Prosecutor’s Office
82 Ionia Ave NW
Grand Rapids, MI 49503
lawrence.boivin@kentcountymi.gov
chris.becker@kentcountymi.gov
appeals@kentcountymi.gov
(616) 632-6661
Attorneys for Plaintiff-Appellee

RECEIVED by MCOA 8/4/2022 5:19:34 PM

Grand Rapids, MI 49503
(616) 622-3064 (w); (616) 856-1890 (c)
mberry@buswaberry.com
Co-counsel for Defendant-Appellant
___________________________________________ /

DEFENDANT’S BRIEF IN SUPPORT OF

EMERGENCY MOTION FOR MODIFICATION OF RELEASE DECISION
 TABLE OF CONTENTS

INDEX OF AUTHORITIES.......................................................................................................... iii

JURISDICTIONAL STATEMENT ............................................................................................... 3
STATEMENT OF FACTS ............................................................................................................. 3
STANDARD OF REVIEW ............................................................................................................ 7
ARGUMENT .................................................................................................................................. 7
I. The Circuit Court Violated Ms. Majeed’s Right to Procedural Due Process
By Sua Sponte Increasing Her Bond, Drug Testing Her, and Imposing
Additional Drug-Related Conditions in Response to Her Exercise of Her
Constitutional Right to Proceed to Trial ................................................................. 7
II. The Cash Bail Imposed Here Violates the Michigan Court Rules By
Failing to Apply Their Double Presumption of Release Without Cash Bail. ....... 15
III. The Circuit Court Erred As a Matter of Law and Abused Its Discretion By
Imposing a Drug Testing Condition Without Any Record Evidence that
the Condition Was Reasonably Necessary to Protect the Public or Ensure
Ms. Majeed’s Appearance in Court. ..................................................................... 20
CONCLUSION AND RELIEF REQUESTED ............................................................................ 22

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ii
 INDEX OF AUTHORITIES

Cases

Alabama v Smith, 490 US 794; 109 S Ct 2201; 104 L Ed 2d 865 .................................................. 7

Atkins v Michigan, 644 F2d 543 (CA 6, 1981) ............................................................................. 20

Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972) .......................................... 19

Bearden v Georgia, 461 US 660; 103 S Ct 2064; 76 L Ed 2d 221 (1983) ................................... 19

Griffin v Illinois, 351 US 12; 76 S Ct 585; 100 L Ed 891 (1956)................................................. 19

In re Martin, unpublished per curiam opinion of the Court of Appeals, issued March
24, 2009 (Docket No. 286425) ......................................................................................... 11

Kidder v Ptacin, 284 Mich App 166; 771 NW2d 806 (2009) ........................................................ 7

Koon v United States, 518 US 81; 116 S Ct 2035; 135 L Ed 2d 392 (1996) .................................. 7

North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 658 (1969) ........................ 7, 15

People v Chandler, 505 Mich 1054 (2020) .................................................................................. 17

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People v Collins, 239 Mich App 125; 607 NW2d 760 (1999) ..................................................... 19

People v Edmond, 81 Mich App 743; 266 NW2d 640 (1978)................................................ 16, 17

People v Ferguson, unpublished order of the Court of Appeals, issued March 23,
2020 (Docket No. 353226) ............................................................................................... 17

People v Grant, 61 App Div 3d 177; 873 NYS2d 355 (2009) ....................................................... 8

People v Hegwood, 465 Mich 432; 636 NW 2d 127 (2001) .......................................................... 2

People v Jackson, 483 Mich 271; 769 NW2d 630 (2009) ............................................................ 19

People v Luckity, 460 Mich 484; 596 NW2d 607 (1999) ............................................................... 7

People v Mazzie, 429 Mich 29; 413 NW2d 1 (1987) ..................................................................... 7

iii
People v Shelton, 506 Mich 1030 (2020)...................................................................................... 17

People v Snow, 386 Mich 586; 194 NW2d 314 (1972) ................................................................ 11

People v Spicer, 402 Mich 406; 263 NW2d 256 (1978)............................................................... 16

People v Stoltz, unpublished order of the Court of Appeals, issued August 21, 2018
(Docket No. 344983) .................................................................................................... 2, 13

People v Weatherford, 132 Mich App 165; 346 NW2d 920 (1984) ................................... 8, 15, 18

Stack v Boyle, 342 US 1; 72 S Ct 1; 96 L Ed 3 (1951) ................................................................. 16

Tate v Short, 401 US 395; 91 S Ct 668; 28 L Ed 2d 130 (1971) .................................................. 19

United States v Andrews, 633 F2d 449 (CA 6, 1980) ..................................................................... 8

United States v Jackson, 390 US 570; 88 S Ct 1209; 20 L Ed 2d 138 (1968) ........................... 7, 8

United States v Salerno, 481 US 739; 107 S Ct 2095; 95 L Ed 2d 697 (1987) ............................ 20

Constitutional Provisions

Const 1963, art 1, § 15 .................................................................................................................. 16

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Const 1963, art 1, § 16 .................................................................................................................. 16

Const 1963, art 6, § 1 .................................................................................................................... 12

Statutes

MCL 750.157 .................................................................................................................................. 3

MCL 750.356 .................................................................................................................................. 3

MCL 750.540 .................................................................................................................................. 3

MCL 765.6 .................................................................................................................................... 16

Rules
MCR 6.106............................................................................................................................. passim

iv
Other Authorities

17th Circuit Court Annual Report (2019) ..................................................................................... 14

Dobbie, Goldin & Yang, The Effects of Pretrial Detention on Conviction, Future
Crime, and Employment: Evidence from Randomly Assigned Judges, 108 Am
Econ Rev 201 (2018) ........................................................................................................ 19

Leslie & Pope, The Unintended Impact of Pretrial Detention on Case Outcomes:
Evidence from New York City Arraignment, 60 J L & Econ 529 (2017).......................... 18

Lowenkamp, VanNostrand & Holsinger, The Hidden Costs of Pretrial Detention

(Laura & John Arnold Foundation, 2013) ........................................................................ 19

Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case
Outcomes, 34 J L Econ & Org 511 (2018) ...................................................................... 18

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v
 Defendant Keyara Sharnice Majeed has no criminal record and is charged with three

property-crime offenses all resulting from a single incident in which she allegedly stole a friend’s

iPhone and transferred less than $700 to herself using an app on the phone. The district court

bound her over, reluctantly, after indicating that it was unlikely, based on the evidence presented

at the preliminary exam, that the prosecution could prove her guilt at trial. At the time of the status

conference at issue here in the circuit court, Ms. Majeed had been on pre-trial release for over three

months pursuant to a personal bond, and was compliant with all terms of her release. Then, at a

June 27 status conference, her defense attorney informed the circuit court that she wished to

exercise her right to go to trial and would not accept a plea bargain. Immediately thereafter, and

without even eliciting the prosecution’s position, the circuit court sua sponte increased Ms.

Majeed’s bond from a small personal bond to $25,000 cash/surety and imposed a condition

requiring her to be tested for drugs weekly even if she posted bond.

The circuit court’s action—vastly increasing a criminal defendant’s bond moments after

the defendant rejects a plea bargain—is part of a longstanding pattern by this particular judge, and

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this Court has previously vacated the same judge’s decisions on two prior occasions.

Ms. Majeed appeals by right, pursuant to MCR 6.106(H), requesting review of the circuit

court’s decision to impose a cash/surety bond and a release condition requiring weekly drug

testing. The circuit court’s decision is unlawful for several independent, albeit overlapping,

reasons.

First, and most egregiously, the circuit court violated Ms. Majeed’s right to due process by

punishing her for asserting her innocence and exercising his constitutional right to request a trial.

Worryingly, records reflect that this is part of an established pattern by this judge in which he

consistently, and sua sponte, increases bond and sends defendants to jail immediately after they

1
decline plea bargains.

Second, the circuit court erred as a matter of law by imposing a $25,000 cash/surety bond

without even acknowledging Michigan law’s presumption against cash bail. Specifically, the

circuit court failed to make findings, which are mandatory for imposing cash bail under MCR

6.106, that Ms. Majeed presented an unmanageable risk of nonappearance or danger to the public.

And the circuit court certainly did not make any findings, also mandatory under MCR 6.106, that

the already existing personal pond and non-financial release conditions, which had been effective

for over three months while Ms. Majeed was on pre-trial release, were insufficient to ensure her

appearance in court and protect the public.

Third, the circuit court erred as a matter of law by requiring Ms. Majeed to take weekly

drug tests once she did post bond. The circuit court again made no findings that such a condition

was necessary to ensure her appearance in court or protect the public, as is required by MCR

6.106(D). Indeed, there was no evidence whatsoever to support such a finding, so the drug testing

condition would constitute an abuse of discretion in any event.

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For each of these reasons, the circuit court’s sua sponte imposition of a $25,000 cash/surety

bond, which cannot be understood as anything other than punishing Ms. Majeed for exercising her

constitutional right to proceed to trial, should be reversed, as should the imposition of release

conditions requiring Ms. Majeed to test weekly for drug use. Additionally, Ms. Majeed requests

re-assignment to another judge in light of the circuit court’s demonstration of prejudice by having

already punished Ms. Majeed for asserting her constitutional rights. See People v Hegwood, 465

Mich 432, 440 n17; 636 NW 2d 127 (2001) (noting that reassignment is appropriate when a judge

has shown “prejudices or improper attitudes regarding [a] particular defendant”).

2
 JURISDICTIONAL STATEMENT

This Court has jurisdiction pursuant to MCR 6.106(H). That provision, in relevant part,

provides that “[a] party seeking review of a release decision may file a motion in the court having

appellate jurisdiction over the court that made the release decision.” Here, the circuit court’s June

27 order is a “release decision,” namely, a decision to increase Ms. Majeed’s bond and impose

conditions on her release in the event she posted bond. Ms. Majeed timely filed for reconsideration

of the circuit court’s bond decision on July 12, and that motion was denied on July 18. This appeal

follows within 21 days of the circuit court’s denial of the motion for reconsideration.

STATEMENT OF FACTS

On February 28, 2002, Ms. Majeed was charged by information with three offenses:

larceny of more than $1,000 and less than $20,000 (MCL 750.356(3)(a)); delivery, circulation, or

sale of financial transaction device obtained or held under proscribed circumstances (MCL

750.157q); and interfering with electronic communications (750.540(5)(a)). Exhibit C. All three

charges are related to a single incident in which she is alleged to have stolen her former friend’s

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phone and transferred money into her own account from an app on the phone after a dispute over

a debt she believed that the friend owed her. See id.

On March 15, she appeared as required for her probable cause conference, just as she has

appeared as required for every hearing in this matter. She was arraigned, given a $5,000 personal

bond, and was released with the additional condition that she have no contact with the alleged

victim and that she report to court services and remain under its supervision as directed until the

final disposition of her case. See Exhibits D, F.

On March 29, Ms. Majeed appeared as required for her preliminary examination, and the

hearing was adjourned due to the absence of a witness. Ms. Majeed again appeared at the

3
rescheduled examination on April 5, and the hearing was adjourned again because of the absence

of a witness. Ms. Majeed appeared, yet again, at the rescheduled preliminary examination on April

19. See Exhibit D.

At the preliminary examination, the alleged victim himself testified that Ms. Majeed did

not touch his body or harm him physically in any way during the alleged theft. See Exhibit E, pp

15:23–16:6. Other witnesses testified that Ms. Majeed did not in fact take the phone at issue at all.

Although the district court found probable cause sufficient to bind Ms. Majeed over in light of the

conflicting testimony, it also stated that, based on the evidence presented, “I would doubt that the

People could sustain a conviction beyond a reasonable doubt.” Id., p 67:16–17.

On April 27, the circuit court continued the original $5,000 personal bond. Exhibit F.

On June 27, the circuit court held a status conference, which Ms. Majeed attended as

required. During the three-and-one-half months after her arraignment and leading up to the status

conference, there were no allegations whatsoever that Ms. Majeed violated any term of her release

conditions, Exhibit H, p 7; in other words, there are no allegations that she contacted the alleged

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victim or failed to report to court services as required, and she appeared in both district and circuit

court on every occasion as required.

At that status conference, counsel for Ms. Majeed informed the circuit court that Ms.

Majeed did not wish to accept a proffered plea bargain and preferred to proceed to trial—which is

hardly surprising given the district court’s finding that the prosecution would be unlikely to be

able to convict Ms. Majeed. Exhibit H, p 3. The circuit court then went on to sternly warn Ms.

Majeed of the five-year maximum sentence she could potentially face if she opted to proceed to

trial, without mentioning her sentencing guidelines or the much less severe sentence she was likely

to face if convicted; the circuit court then instructed her to speak with her attorney again about the

4
plea bargain. Id., pp 4–5. The prosecutor interjected to note that Ms. Majeed’s sentencing

guidelines would suggest a local jail sentence of zero to nine months if convicted on all three

charges. Id., p 5. The court then went off the record, and when it returned, Ms. Majeed again

indicated her desire to proceed to trial. Id.

Immediately thereafter, the circuit court ordered that Ms. Majeed take a drug test

immediately. Exhibit H, p 5. It ordered the drug test despite the fact that abstention from alcohol

or drugs were not conditions of her release. See Exhibit F. When informed by defense counsel

that restrictions on drug use were not a condition of Ms. Majeed’s release, the circuit court

indicated its view that in any case coming out of the district court, a defendant should be ordered

to abstain from recreational marijuana as a condition of release, regardless of the circumstance.

Exhibit H, p 6. The circuit court subsequently expressed disappointment that pre-trial services or

the district court for not imposing such a condition. Exhibit H, p 7.

The circuit court then proceeded to sua sponte reconsider Ms. Majeed’s bond without any

prompting from the prosecutor whatsoever. Exhibit H, pp 7–8, 10. In doing so, the court did not

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mention a single fact in the record that might render Ms. Majeed a danger to the public or suggest

that she presented a risk of non-appearance, and the court ignored defense counsel’s arguments

that Ms. Majeed was stably employed and had been reliably coming to court throughout her

proceedings, id., p 7; see also Exhibit I. The only fact the court mentioned is that Ms. Majeed may

have consumed marijuana, id.,—which, again, was not a violation of her release order, see Exhibit

F. The court then briefly reviewed the transcript of the preliminary examination and proceeded to

vacate the personal bond and impose a cash bond of $25,000 cash/surety “based on everything that

I’ve seen.” Exhibit H, p 8. The court also imposed a new condition requiring that, if she were

released, Ms. Majeed must take weekly drug tests. Id., pp 8, 10. The court did so without

5
providing any explanation as to why the consumption of marijuana would in any way bear on Ms.

Majeed’s ability to return to court or indicate that she presented a danger to any person or the

public. Id.

The circuit court did not even elicit the prosecutor’s position on the issues of bond or

release conditions before (or after) rendering this decision. Exhibit H, pp 7–8.

On July 5, 2022, Ms. Majeed posted bond using a bail bondsman. In order to post bond,

Ms. Majeed was forced to find an indemnitor who paid $2,500 to purchase Ms. Majeed’s pre-trial

freedom. As a condition of the contract required by her bondsperson, Ms. Majeed has been forced

to grant the bondsman “control and jurisdiction over you during the term for which the Bond is in

effect” including giving the bondsman the “right to apprehend, arrest, and surrender you . . . at any

time as provided by law.” Exhibit V, p 3 ¶ 2. She was also required to waive various privacy

rights and to consent to having a location device attached to her automobile at the bondsman’s

discretion and to allowing the bondsman to track her mobile phone, id. ¶¶ 6–7, and of course she

and her indemnitor are liable to the bondsman for the full amount of her bond as well as various

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additional costs if the bond is forfeited for any reason. She also remains subject to the drug testing

condition imposed by the circuit court during her release.

As described in more detail in the Argument, Section I, below, the circuit court’s actions

reflect a consistent and repeated practice by this particular judge of dramatically increasing cash

bond immediately after a criminal defendant declines a plea bargain. Indeed, just over a year ago,

this Court twice vacated bond determinations by the same judge in which he engaged in the same

practice. Exhibits A, B. In those prior cases, the defendants in question presented evidence that

the same judge had done the same thing in at least four other recent cases that were known to

defense counsel at the time in the preceding few months. See Exhibits L–O. Nor does it appear

6
that anything has changed since this Court’s decisions, as discussed more fully below. See

Exhibits R–U. Indeed, this pattern is so well known by defense counsel such that undersigned

defense counsel (and other public defenders employed by the Kent County Office of the Defender)

are forced to advise their clients as a matter of course that if the client declines a plea bargain, they

will likely have their bond increased and be incarcerated while they await trial. Exhibits Q ¶ 5, U

¶¶ 4–6.

STANDARD OF REVIEW

On appeal, this Court applies an abuse of discretion standard when determining whether to

stay, vacate, modify, or reverse the circuit court’s ruling regarding bond or release conditions.

MCR 6.106(H). “A court ‘by definition abuses its discretion when it makes an error of law.’”

Kidder v Ptacin, 284 Mich App 166, 170; 771 NW2d 806 (2009), quoting Koon v United States,

518 US 81, 100; 116 S Ct 2035; 135 L Ed 2d 392 (1996). Thus, under the abuse of discretion

standard, questions of law such as the constitutional issues and issues regarding the violation of

the Michigan Court Rules are, in effect, reviewed de novo. See People v Luckity, 460 Mich 484,

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488; 596 NW2d 607 (1999).

ARGUMENT

I. The Circuit Court Violated Ms. Majeed’s Right to Procedural Due Process By Sua
Sponte Increasing Her Bond, Drug Testing Her, and Imposing Additional Drug-
Related Conditions in Response to Her Exercise of Her Constitutional Right to
Proceed to Trial.

It is well established that “‘penalizing those who choose to exercise’ constitutional rights

‘would be patently unconstitutional’” and violate core due process principles. North Carolina v

Pearce, 395 US 711, 724; 89 S Ct 2072; 23 L Ed 2d 658 (1969), overruled on other grounds by

Alabama v Smith, 490 US 794; 109 S Ct 2201; 104 L Ed 2d 865, quoting United States v Jackson,

390 US 570, 581; 88 S Ct 1209; 20 L Ed 2d 138 (1968); see also People v Mazzie, 429 Mich 29;

7
413 NW2d 1 (1987) (applying Pearce). Such “vindictive conduct by persons with the awesome

power of prosecutors (and judges) is unacceptable and requires control.” United States v Andrews,

633 F2d 449, 453 (CA 6, 1980) (en banc). The test for determining when a defendant’s due process

rights have been violated in response to their exercise of a right is whether “there exists a ‘realistic

likelihood of vindictiveness’” by the trial court based on the information before the appellate court.

Id.

The use of bond to punish defendants who choose to proceed to trial is, unfortunately, not

unknown to courts. For example, in People v Weatherford, 132 Mich App 165, 170; 346 NW2d

920 (1984), this Court found that a circuit court judge who had sua sponte increased bond had

done so in order to incarcerate a defendant and thereby induce him to plead guilty. This court held

such “inherently coercive” behavior unlawful and allowed the defendant to withdraw his guilty

plea. Id.; accord People v Grant, 61 App Div 3d 177; 873 NYS2d 355 (2009). Similarly, the

United States Supreme Court has held that it is unconstitutional for the legislature to authorize

harsher punishment for a criminal defendant who exercises their right to proceed to trial than would

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be available for conviction of the same offense by plea bargain. United States v Jackson, 390 US

570, 582; 88 S Ct 1209; 20 L Ed 2d 138 (1968). Such a scheme “needlessly chill[s] the exercise

of basic constitutional rights.” Id.

Here, Chief Judge Trusock’s well-documented practice of increasing bond and thus

incarcerating defendants who exercise their right to proceed to trial is precisely the type of decision

that presents a “realistic likelihood of vindictiveness” of the sort that courts have consistently

found to be unconstitutional. Andrews, 633 F2d at 453. Indeed, the troubling facts of Ms.

Majeed’s own case suffice to raise precisely such a realistic likelihood on their own. At the time

that she informed the circuit court of her desire to go to trial, Ms. Majeed had been released for

8
over three months, under the supervision of Kent County Court Services and pursuant to a no-

contact order, and she was not alleged to have violated any conditions of her pre-trial release during

that time (including, of course, re-offending). She is charged with non-violent offenses growing

out of an idiosyncratic personal dispute of a type not likely to recur, and she was stably employed.

There was simply no basis whatsoever to impose a cash/surety bond, to require her to take

weekly drug tests, or to otherwise impose additional release conditions, as reflected by the facts

that even the prosecution did not seek any of these actions. The only basis the circuit court even

mentioned for imposing cash bond and new release conditions was that Ms. Majeed may have

tested positive for marijuana, which she was not prohibited from doing under her release orders.

There are not even any allegations that the alleged offense was committed while under the

influence of marijuana. Indeed, the allegations of the underlying offenses at issue here are so

particular to the individuals involved—a dispute between friends over money ultimately

culminating in Ms. Majeed allegedly stealing the alleged victim’s phone and transferring some

funds to herself, see Exhibits C, E—as to vitiate any possible argument that Ms. Majeed might

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pose a risk to any other individual or even to their property. And as any danger to the alleged

victim himself, Ms. Majeed had respected the no-contact order for over three months at the time

of the June 27 hearing. Exhibits H, p 7; I. Indeed, the alleged victim himself testified that Ms.

Majeed did not attempt to physically harm him in any way even during the events leading to the

alleged offenses. Exhibit E, pp 15–16.

With respect to flight risk, there was not a scintilla of evidence that Ms. Majeed might fail

to return to court. She was stably employed, had come to every court hearing as required, and, as

the district court acknowledged, Exhibit E, p 67, she has a very strong factual defense to the

underlying charges, giving her every incentive to come to court.

9
 The only conceivable purpose of the circuit court’s actions were to punish Ms. Majeed for

exercising her constitutional right to a trial. The high amount of the bond was likely calculated to

be sufficient to result in Ms. Majeed’s pretrial detention, particularly given that the underlying

charges involve a dispute over much smaller amounts of money, and that she is represented by a

court-appointed attorney, both facts indicative of Ms. Majeed’s economic precarity. And even

though Ms. Majeed was ultimately able to identify an indemnitor to buy her freedom, this has cost

$2,500 paid to a bondman, and Ms. Majeed remains subject to the jurisdiction of and surveillance

by her bondsman and to all the financial consequences that accrue if there are any bond violations.

See Exhibit V. Similarly, requiring Ms. Majeed to drug test at her status conference, and then

subjecting her to ongoing drug testing immediately after rejecting a plea bargain reeks of

punishment, especially given that there were no allegations whatsoever that drug use was involved

in her alleged offense.

Even if the facts here did not speak for themselves, any doubt as to whether Ms. Majeed’s

cases raise a “realistic likelihood of vindictiveness” by the circuit court is eliminated by the clear

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pattern and practice exhibited by this same judge over several years. Just last year, in People v

Forbes, the same judge sua sponte increased bond from $5,000 cash/surety to $75,000 cash

immediately after a defendant exercised his constitutional right to proceed to trial. The defendant

was accused of fourth degree criminal sexual conduct for allegedly groping and forcibly kissing

two minors at his school. He had been complying with release conditions requiring him to report

to probation and avoid contact with the victims for nearly a year prior to his bond being increased.

See Exhibit W (transcript of status conference increasing bond and ROA in Forbes). On appeal,

this Court vacated circuit court’s bond increase, explaining that the court had “abused its discretion

when it sua sponte modified the terms of defendant’s pretrial release.” Exhibit A. As the Court

10
explained, “[m]oney bail may only be imposed where the ‘defendant’s appearance or the

protection of the public cannot otherwise be assured.’” Id., quoting MCR 6.106(E). And when a

defendant has already been successfully released and is compliant with those release conditions

for a significant period of time their “conduct while on bond . . . demonstrates that [a] modification

made by the trial court [i]s not required to ensure defendant’s appearance at court proceedings or

to protect the public.” Id.

In another appeal last year involving the same judge, this court also vacated and remanded

for a new bond redetermination because the “record before us calls into question whether the trial

court properly considered the factors set forth in MCR 6.106(F)(1) before sua sponte modifying

the terms of defendant’s pretrial release.” Conteras-Reyes, Exhibit B. In that case, the circuit court

had sua sponte increased bond from $10,000/10% to $100,000 cash moments after the defendant

rejected a plea bargain. The defendant in Contreras-Reyes was a 57-year old man accused of

shooting a firearm in a building who had no criminal history and had been released for several

months pursuant to various release conditions with no violations whatsoever. See Exhibit X

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(transcript of status conference increasing bond and ROA in Contreras-Reyes).

In Forbes and Contreras-Reyes, the defendants presented additional evidence of Chief

Judge Trusock’s consistent practice by providing records from four other such cases during the

prior year as well as an additional example from 2019. See Exhibits L–P (transcripts and ROAs

from cases cited by defendants in Forbes and Contreras-Reyes). 2 In one of these cases, arising on

2
Because this case arises via a motion rather than an appeal, this court can consider these
documents afresh without taking judicial notice. However, even if it were necessary to do so, this
Court can and should take judicial notice of the transcripts as they are official court records.
“Documents that are part of lower court records in this or other cases are within this Court’s
purview under principles of judicial notice, based on the one court of justice concept found in
Michigan's constitution.” In re Martin, unpublished per curiam opinion of the Court of Appeals,
issued March 24, 2009 (Docket No. 286425), p 4 (emphasis in original), citing Const 1963, art 6,

11
the same day as the Contreras-Reyes case, a defendant charged with operating while intoxicated

(third offense) appeared before Chief Judge Trusock and indicated that he would not plead guilty.

The circuit court proceeded to sua sponte increase the defendant’s bond from $10,000 cash/surety

to $75,000 cash/surety. Exhibit L. In doing so, the court not only ignored the fact that the

defendant had been released for months on bond without issue, but also failed to acknowledge that

the defendant’s release conditions already included an alcohol tether and a condition of not driving

while intoxicated. See id. (register of action shows the bond conditions imposed at the defendant’s

original arraignment in September 2020). No evidence was presented at the hearing to suggest

that these conditions had not served their intended purpose of protecting the public without the

need for pretrial incarceration. See id. (transcript of hearing)

A week prior, on May 18, 2021, the same judge sua sponte increased bond from

$1,000/10% to $75,000 cash (increasing the amount the defendant would have to post by a factor

of 7500) after a defendant rejected a plea bargain in a case in which the allegations against the

defendant, in the prosecution’s own words, were that he was in a car that was stopped for “an

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unlawful plate or an unregistered plate,” leading to a search of the car in which officers “found

small amounts of methamphetamine.” Exhibit M. The court increased bond despite being

informed, without contradiction from the prosecution, that the defendant was reporting to court

services and complying with his release conditions for a significant period of time. Id.

And again: on March 30, 2021, in a case in which the criminal defendant had somehow

managed to post a significant bond of $50,000 cash/surety, the same judge sua sponte 3 raised the

§ 1; People v Snow, 386 Mich 586, 591; 194 NW2d 314 (1972).
3
In the March 30 case, unlike the other cases cited above, the prosecution actually urged the bond
to be increased after the circuit court raised the issue on its own accord. In the other cases discussed
above, the prosecution did not even urge an increase in bond.

12
issue of bond after the defendant declined a plea bargain, quadrupling it to $200,000 cash/surety

despite the fact that the defendant had been released since October 2020 pursuant to a no-contact

order and had not violated his release conditions during his nearly half-year of release. See Exhibit

N, pp 8–9.

And in September of 2020, in the midst of the pre-vaccine early pandemic, the court

increased bond from $20,000 cash/surety to $150,000 cash/surety, resulting in the immediate

incarceration of a man accused of masturbating in his car in a parking lot, observed by no one other

than a police officer. See Exhibit O.

The pattern is not of recent vintage either. In September 2019, the same judge sua sponte

increased bond from $5,000/10% to $75,000 cash/surety for a defendant accused of retail fraud

who refused to plead guilty. Exhibit P. And in July 2018, the same judge sua sponte increased

bond from a $20,000 personal recognizance bond to $200,000 cash in a larceny case in which the

defendant had been compliant with release conditions for over a year prior to the court increasing

his bond in response to the defendant’s refusal to plead guilty. See People v Stoltz, unpublished

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order of the Court of Appeals, issued August 21, 2018 (Docket No. 344983) (Shapiro, J.,

dissenting) (attached as Exhibit Y, along with the transcript of the bond hearing in question).

This pattern has also persisted after this Court’s decisions in Forbes and Contreras-Reyes.

In November 2021, the court sua sponte increased bond from $20,000 cash/surety, which the

defendant had posted, to $75,000 immediately after the defendant rejected a plea bargain. Exhibit

R (transcript of hearing). The case involved an alleged armed robbery in which the prosecution

acknowledged that the defendant only pretended to have a firearm, and in which the defendant had

no criminal history and allegedly stole a package of cigarillos. See id. Then, again, in February

2022 the court sua sponte increased bond from $10,000 cash/surety to $100,000 cash when a

13
defendant charged with an (admittedly very serious) criminal sexual conduct offense rejected a

plea bargain. The court did so despite the fact that the defendant had voluntarily turned himself

in, had appeared at every court hearing, was stably employed, and had been reporting to court

services as required and was otherwise compliant with his release conditions. See Exhibit S. And

in yet another recent case, the court sua sponte increased bond from $15,000 cash/surety to $80,000

immediately after the defendant rejected a plea bargain. See Exhibit T.

Ms. Majeed’s case, and the surfeit of cases cited above, likely reflect a mere fraction of the

cases in which the circuit court has used bond increases to incarcerate defendants who exercise

their right to trial over the years—and thus to coerce plea bargains. Nonetheless, this case plus the

cases documented in Exhibits R through T constitute four known instances of this conduct since

Forbes and Contreras-Reyes were handed down last summer, and the other cases cited above show

at least six instances of such conduct in the year leading up to Forbes and Contreras-Reyes. These

examples are not a mere statistical anomaly. To the contrary, they represent a significant portion

of the overall number of felony cases that proceed to criminal trials in Kent County. According to

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the 17th Circuit’s 2019 annual report (the most recent posted on the court’s website), between

2016 through 2019, the entire court conducted only 50–67 criminal trials per year (felony and

misdemeanor combined). See 17th Circuit Court Annual Report (2019), p 12, available at

<https://www.accesskent.com/Courts/17thcc/pdfs/2019-Annual-Report.pdf> (accessed August 1,

2022). Thus, the ten total cases documented here between summer of 2020 and summer of 2022

would likely represent slightly less than 10% of the total criminal trial caseload for the entire 17th

Circuit in a roughly two-year period. When a single judge is responsible for drastically increasing

the bond of approximately 10% of all defendants who wish to proceed to trial over a period of two

years, it is no anomaly; it is a clear and unmistakable pattern.

14
 This pattern is well understood in the Grand Rapids criminal law community. Defense

attorneys at the Kent County Office of the Defender are forced to advise any client who appears

before the chief judge, and who is not already incarcerated, that declining a plea bargain will likely

lead to their being incarcerated until trial due to the chief judge’s practice of drastically increasing

bond in such situations. Exhibit Q ¶ 5, U ¶¶ 4–6.

This pattern of conduct plainly runs afoul of the constitutional prohibition on courts

retaliating against criminal defendants who assert their constitutional rights. The realistic

probability that this circuit court’s conduct is vindictive is dramatically underscored by the fact

that the transcripts show that the court consistently and immediately raises bond the moment after

a defendant declines a plea bargain. Perhaps, taken alone, any one of these cases might reflect a

sincere concern by the circuit court that something had been missed during the initial arraignment.

But the staggering weight of all of these cases demonstrates that something else is happening. The

pattern is undeniable. In each case, the circuit court demands to know the terms of any proffered

plea bargain. The circuit court then tells the defendant of the severe consequences they might face

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if convicted and suggests they speak again with their defense attorney. Then, if the defendant still

wishes to exercise their right to proceed to trial, the circuit court immediately proceeds to re-

examine, and drastically increase, bond, typically without any prompting from the prosecutor. The

disturbing pattern here clearly “penalize[es] those who choose to exercise constitutional rights” is

“patently unconstitutional as a violation of due process principles.” Pearce, 395 US at 724

(quotation marks omitted); see also Weatherford, 132 Mich App at 170.

II. The Cash Bail Imposed Here Violates the Michigan Court Rules By Failing to Apply
Their Double Presumption of Release Without Cash Bail.

Michigan’s Constitution guarantees that “[a]ll persons shall, before conviction, be bailable

by sufficient sureties,” except in four specific circumstances not applicable here. Const 1963, art

15
1, § 15. It further guarantees that “[e]xcessive bail shall not be imposed.” Const 1963, art 1, § 16.

Similarly, state law guarantees that “[e]xcept as otherwise provided by law, a person accused of a

criminal offense is entitled to bail. The amount of bail shall not be excessive.” MCL 765.6(1). In

turn, the general rule is that “[b]ail set at a figure higher than an amount reasonably calculated to

[assure the presence of the accused at trial] is ‘excessive’.” Stack v Boyle, 342 US 1, 5; 72 S Ct 1;

96 L Ed 3 (1951). See also People v Edmond, 81 Mich App 743, 747; 266 NW2d 640 (1978)

(“Money bail is excessive if it is in an amount greater than reasonably necessary to adequately

assure that the accused will appear when his presence is required.”).

The Michigan Supreme Court has promulgated court rules establishing a double

presumption that a pre-trial arrestee must be released without any cash bail requirement. First,

“the court must order the pretrial release of the defendant on personal recognizance, or on an

unsecured appearance bond . . . unless the court determines that such release will not reasonably

ensure the appearance of the defendant as required, or that such release will present a danger to

the public.” MCR 6.106(C) (emphasis added).

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Second, even if the court does determine that there is evidence of a possible flight risk or

danger to the public, the presumption of release without cash bail remains. Before even

considering cash bail, a court must next consider releasing the defendant under non-financial

release conditions, including, but not limited to, 14 conditions that are specifically enumerated by

court rule. MCR 6.106(D). It is only “[i]f the court determines for reasons it states on the record

that the defendant’s appearance or the protection of the public cannot otherwise be assured [that]

money bail, with or without conditions . . . may be required.” MCR 6.106(E) (emphasis added);

see Forbes, Exhibit A, quoting MCR 6.106(E). The Michigan Supreme Court has been “emphatic”

that this “rule is to be complied with in spirit, as well as to the letter.” People v Spicer, 402 Mich

16
406, 409; 263 NW2d 256 (1978).

Michigan courts have recently made clear that these admonitions are not to be taken lightly.

For example, in People v Shelton, 506 Mich 1030 (2020), the Supreme Court found that a circuit

court had abused its discretion in denying bond to a defendant charged with first degree criminal

sexual conduct. And in People v Chandler, 505 Mich 1054 (2020), the Court found that a circuit

court abused its discretion by imposing unaffordable bond on a defendant charged with felony

firearm as a fourth habitual offender. This Court, similarly, has held that a circuit court abused its

discretion by imposing unaffordable bond on a defendant charged with felony firearm and intent

to deliver a controlled substance. People v Ferguson, unpublished order of the Court of Appeals,

issued March 23, 2020 (Docket No. 353226), attached as Exhibit Z; see also Forbes, Exhibit A;

Contreras-Reyes, Exhibit B.

Here, the circuit court’s decision violated the Michigan Court Rules in two interrelated

ways. First, it failed to apply, or even acknowledge, the double presumption of pre-trial release—

the “favored policy” in this State. Edmond, 81 Mich App at 747. Second, the circuit court failed

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to make a specific, evidence-based finding that non-financial release conditions, such as those

listed in MCR 6.106(D), would not suffice to address any possible concerns. Indeed, the circuit

court did not even discuss let alone making any findings about, the questions of whether Ms.

Majeed presented any risk to the public or of failing to appear in court. Exhibit H, pp 7–8. That

error is particularly stark on this record in which Ms. Majeed had already been released and was

successfully complying with non-financial conditions of release including supervision by Kent

County Court Services, for over three months prior to the circuit court’s sua sponte bail

redetermination. Exhibits H, p 7; I. The trial court did not cite a single changed circumstance

justifying the imposition of cash bond, Exhibit H pp 7–8, which also constitutes legal error. See

17
Forbes, Exhibit A (holding that a defendant’s compliance with release conditions “demonstrates

that the modification [to bond] made by the trial court was not required to ensure defendant’s

appearance at court proceedings or to protect the public”).

The circuit court’s failure to comply with the Michigan Court Rules constitutes legal error

and, thus, abuse of discretion. Accordingly, this Court should order that Ms. Majeed’s $25,000

bond be vacated and her prior personal bond reinstated under the same non-financial terms that

governed her initial release.

It also bears noting, that although Ms. Majeed ultimately was able to post bond, the size

of the bond imposed by the circuit court strongly suggests that it anticipated that bond could likely

result in Ms. Majeed remaining incarcerated while awaiting trial, even though by the prosecution’s

own calculations her sentencing guidelines called for a sentence between zero and nine months in

length. Ex H, p 5. Research demonstrates that unaffordable bond, resulting in a defendant’s

ongoing pre-trial detention, inflicts enormous harm on the pursuit of justice. Both academic

studies and caselaw demonstrate that being in jail pre-trial tends to induce guilty pleas by causing

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defendants to plead in order to speed their release from jail. 4 The same studies also show that pre-

trial detention leads to higher conviction rates largely due to coerced plea bargains, and to more

severe sentences. See id. As the United States Supreme Court has explained, “if a defendant is

locked up, he is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare

4
See, e.g., Weatherford, 132 Mich App 165. See also Stevenson, Distortion of Justice: How the
Inability to Pay Bail Affects Case Outcomes, 34 J L Econ & Org 511, 512, 532 (2018), available
at <https://academic.oup.com/jleo/article/34/4/511/5100740> (finding that a person who is
detained pretrial has a 13 percent increase in the likelihood of being convicted and an 18 percent
increase in the likelihood of pleading guilty); Leslie & Pope, The Unintended Impact of Pretrial
Detention on Case Outcomes: Evidence from New York City Arraignment, 60 J L & Econ 529
(2017).

18
his defense. Imposing those consequences on anyone who has not yet been convicted is serious.”

Barker v Wingo, 407 US 514, 532–533; 92 S Ct 2182; 33 L Ed 2d 101 (1972).

Detention as the result of unaffordable bail also has other “detrimental impact on the

individual. It often means loss of a job; it disrupts family life; and it enforces idleness.” Id. Pre-

trial detention also has detrimental effects on society: Studies show that defendants who are

detained before trial are 1.3 times more likely to recidivate, likely because of the economic havoc

pre-trial detention wreaks on defendants and their families. 5 It is the height of irrationality to

impose a bond that is likely to inflict such a toll on a defendant—someone who is presumed

innocent until proven guilty—without concrete reasons, supported by concrete evidence, that the

unaffordable amount of bail is somehow necessary for some very specific purpose.

Indeed, it is well established that it is “contrary to the fundamental fairness required by the

Fourteenth Amendment” to “deprive [an individual] of his conditional freedom simply because,

through no fault of his own, he cannot pay.” Bearden v Georgia, 461 US 660, 672–673; 103 S Ct

2064; 76 L Ed 2d 221 (1983); People v Jackson, 483 Mich 271, 280; 769 NW2d 630 (2009),

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quoting Bearden. See also Tate v Short, 401 US 395, 396; 91 S Ct 668; 28 L Ed 2d 130 (1971);

People v Collins, 239 Mich App 125, 135–136; 607 NW2d 760 (1999), citing Tate. “[T]here can

be no equal justice where the kind of trial a man gets depends on the amount of money he has.”

Griffin v Illinois, 351 US 12, 19; 76 S Ct 585; 100 L Ed 891 (1956). And the “‘general rule’ of

substantive due process [is] that the government may not detain a person prior to a judgment of

5
See Lowenkamp, VanNostrand & Holsinger, The Hidden Costs of Pretrial Detention (Laura &
John Arnold Foundation, 2013) <https://craftmediabucket>.s3.amazonaws.com/uploads/PDFs/
LJAF_Report_hidden-costs_FNL.pdf>, pp 19–20 (“Defendants detained pretrial were 1.3 times
more likely to recidivate compared to defendants who were released at some point pending trial.”);
Dobbie, Goldin & Yang, The Effects of Pretrial Detention on Conviction, Future Crime, and
Employment: Evidence from Randomly Assigned Judges, 108 Am Econ Rev 201, 235 (2018),
<https://pubs.aeaweb.org/doi/pdfplus/10.1257/aer.20161503>.

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guilt in a criminal trial.” United States v Salerno, 481 US 739, 749; 107 S Ct 2095; 95 L Ed 2d

697 (1987). Because criminal defendants have a “fundamental interest in liberty pending trial,”

pre-trial detention that lacks sufficient justification “violate[s] [a defendant’s] right to due process

of law.” Atkins v Michigan, 644 F2d 543, 550 (CA 6, 1981). Accordingly, there must be “special

circumstances to restrain individuals’ liberty.” Salerno, 481 US at 749. Here, the high bond

imposed by the trial court seems calculated to have caused Ms. Majeed to remain incarcerated, but

none of the required findings were made. Thus, the circuit court’s decision implicated Ms.

Majeed’s constitutional rights to equal protection of the law and substantive due process in

addition to flouting the Michigan Court Rules.

For all of these reasons, the trial court’s sua sponte imposition of a $25,000 cash/surety

bond without making any relevant legal findings constituted legal error, and thus an abuse of

discretion. Furthermore, in light of the record which plainly shows that Ms. Majeed does not

present any flight risk or danger to the public while on pretrial release, the court would have abused

its discretion even if it had purported to make the necessary findings. Ms. Majeed’s $25,000

RECEIVED by MCOA 8/4/2022 5:19:34 PM

cash/surety bond should be vacated.

III. The Circuit Court Erred As a Matter of Law and Abused Its Discretion By Imposing
a Drug Testing Condition Without Any Record Evidence that the Condition Was
Reasonably Necessary to Protect the Public or Ensure Ms. Majeed’s Appearance in
Court.

As noted above, the Michigan Court Rules impose a presumption of pre-trial release

without significant additional restrictions in most cases: “[T]he court must order the pretrial release

of the defendant on personal recognizance, or on an unsecured appearance bond . . . unless the

court determines that such release will not reasonably ensure the appearance of the defendant as

required, or that such release will present a danger to the public.” MCR 6.106(C) (emphasis

added). The court rules do permit a court to impose conditions limiting the use of alcohol or

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controlled substances and providing for testing for the use of such substances, but only if the “court

determines that the release described in subrule (C) [i.e., release with minimal, standard,

conditions] will not reasonably ensure the appearance of the defendant as required, or will not

reasonably ensure the safety of the public.” MCR 6.106(D).

Here, as exhaustively demonstrated above, the circuit court made no findings whatsoever

that Ms. Majeed presented a risk of non-appearance or a danger to the public. See Exhibit H, pp

7–8. It therefore necessarily follows that the circuit court made no finding that drug testing was

necessary to “reasonably ensure” her appearance or the safety of the public. MCR 6.106(D). To

the contrary, the circuit court’s own comments suggest that it believed that it had ordered that

conditions restricting the use of drugs and requiring testing be automatically imposed in every

criminal case regardless of the individual circumstances. See Exhibit H, p 6 (“Well, we’ve entered

orders before, Counsel, that anything coming out of the district court has got to say they cannot

use marijuana unless they have a medical marijuana card.”); see id., p 7 (indicating the court

planned to scold court services or the district court over the lack of such a condition). The circuit

RECEIVED by MCOA 8/4/2022 5:19:34 PM

court’s position, plainly contrary to MCR 6.106(D), makes evident the circuit court’s legal error.

The circuit court plainly erred as a matter of law in imposing the drug testing condition without

making the legally required findings.

As also demonstrated above, the record would not have supported such findings regardless.

Ms. Majeed has never missed a court appearance and has not even been accused of committing a

crime that might endanger public safety while under the influence of any drug. Indeed, there are

not even any allegations that the property crimes alleged here were in any way influenced by the

use of alcohol or any narcotic substance. At most, Ms. Majeed may have tested positive for

marijuana when the circuit court inexplicably ordered her to take a drug test after she insisted on

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exercising her constitutional right to proceed to trial. Nothing about such a result demonstrates

any danger to the public or risk of non-appearance. If anything, it demonstrates the opposite:

namely, that Ms. Majeed was able to appear in court and avoid further criminal charges despite

potentially consuming marijuana. Accordingly, the trial court’s imposition of a release condition

requiring Ms. Majeed to take weekly drug tests also constitutes an abuse of discretion and should

be reversed and vacated.

CONCLUSION AND RELIEF REQUESTED

For the reasons stated, the circuit court’s sua sponte order imposing $25,000 cash/surety

bond and a condition requiring Ms. Majeed to drug test should be reversed, and Ms. Majeed should

be ordered released with a personal bond pursuant only to the non-financial release conditions that

previously governed her (successful) months-long release.

Additionally, her case should be re-assigned to another judge in light of the circuit court’s

demonstration of prejudice towards her exercise of her constitutional rights.

Respectfully submitted,

RECEIVED by MCOA 8/4/2022 5:19:34 PM

/s/Philip Mayor /s/Matthew T. Berry
Philip Mayor (P81691) Matthew T. Berry (P79621)
Daniel S. Korobkin (P72842) Buswa & Berry, PLLC
American Civil Liberties Union 146 Monroe Center St. NW, Ste 730
Fund of Michigan Grand Rapids, MI 49503
2966 Woodward Ave. (616) 622-3064
Detroit, MI 48201 Co-counsel for Defendant-Appellant
(313) 578-6803(w); 617-817-2229(c)
Attorneys for Defendant Date: August 4, 2022

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