Education: University of Michigan Law School (1991); Cornell University (1988); Cambridge University (1986); University of Michigan (1984)

Admitted to Bar: 1991

Experience: Assistant professor, Wayne State University (2000-present); adjunct professor, Wayne State University (1994-2000); assistant defender, State Appellate Defender Office, (1992-2000); judicial clerk, Judge Ralph B. Guy Jr., 6th Circuit U.S. Court of Appeals (1991-92)

Legal Affiliations: Michigan Innocence Project Board of Directors; executive committee, Institute for Continuing Legal Education; Representative Assembly, Michigan State Bar Association.

Win or lose, Wayne State University Law Professor David Moran had a banner year in 2003. He even now has that most coveted of all legal possessions — a white quill pen.

Federal and state courts handed Moran major decisions in five of his most compelling cases this year. The Sixth Circuit sided with Moran in Tesmer, et al v. Granholm, agreeing that indigent criminal defendants who plead guilty do deserve appellate counsel. The circuit also agreed his client Oliver French deserved a new trial after a judge conducted a crucial portion of the murder trial in the absence of defense counsel.

Once more the federal courts, in Jamie Spencer v. City of Bay City, found Moran's position persuasive. In that case, Moran successfully struck down a city ordinance that permitted police to administer breathalyzer tests to minors walking down the street without benefit of a warrant.

Two other cases unfortunately went south. Moran still gets pretty emotional when he talks about how the Michigan Supreme Court ruled in People v. Cress.

"I'm devastated to this day by the Michigan Supreme Court's decision, which constituted a gross distortion of the facts," he said. "I have filed a motion for rehearing in the Michigan Supreme Court in which I demonstrated that almost every significant fact stated in that opinion is wrong."

Even though years later another man confessed to killing Patricia Rosansky and the prosecutor destroyed evidence, the state high court agreed with the trial court that Cress doesn't deserve relief from judgment.

Moran isn't taking that decision lying down — unfortunately he does have to accept the word of the highest court in the land. Moreover, even though he lost in Price v. Vincent, which addressed a double jeopardy question, Moran said the experience of proffering his position was the pinnacle of his professional life.

"It was a great experience, it was definitely a career highlight — even though I lost," he said.

Q. You had several major cases come down this year. Which one was the most important to the legal community? Which was most important to you?

A. To the legal community in general certainly it was Tesmer. It is a very important case because what Michigan tried to do by passing this statute was to deny the vast majority of indigent criminal defendants who are appealing their convictions or sentences any assistance of appellate counsel.

This is something that no state has attempted to do since 1963, when the U.S. Supreme Court declared that indigent criminal defendants have the right to assistance of appellate counsel for a first appeal of a felony conviction.

This case affects many thousands of indigent criminal defendants every year. It is an important principal that the right to access to the legal system not be taken away from indigent criminal defendants Nobody can claim that a typical criminal defendant will be able to file an appeal by himself or herself — it's just not possible. Tesmer is clearly the most important case in the system.

Q. Has the case gone anywhere else yet?

A. Yes. The state filed a cert petition with the U.S. Supreme Court and we responded to that cert petition. We're expecting the Supreme Court to decide whether to hear this case within a month.

Q. Do you think they will?

A. I hope not. There's always some chance they will — this was a case that split the 6th Circuit and it is a case of great importance. The case entirely relies on the interpretation of U.S. Supreme Court precedents that are slightly different because no state has attempted to do this — you have to understand what the U.S. Supreme Court has done in different contexts.

On the other hand, what cuts against the likelihood of the U.S. Supreme Court taking this is that no other state has done this. The U.S. Supreme Court primarily takes cases where there is a split of authority, and the only split of authority out there is that the Michigan Supreme Court had held, before the statute was passed, that Michigan did not have to provide counsel. The only split of authority out there is between the Michigan Supreme Court and the Sixth Circuit. It is a split of authority but I hope it is not that sufficient a split of authority that the court will weigh in.

Q. Why do you think they took Vincent?

A. I think they took Vincent because they wanted to settle an issue that had split authority in the lower courts. The issue was whether a judge who grants a directed verdict during the course of a trial can change his or her mind later.

They ended up not deciding it. I had urged the court not to take the case because I didn't think this was a very clean case to decide that issue. Unfortunately, however, they did take the case and, when they did, I think they realized it wasn't the perfect case to decide the issue. They ended up deciding against my client on threshold grounds.

Q. Tell me what the French case was about.

A. The Sixth Circuit ordered a new trial in this 1996 murder conviction and the U. S. Supreme Court recently denied the prosecutor's petition for certiorari. This was a high-profile murder case — it was undisputed Mr. French shot and killed two union officials at the UAW plant, the Ford Motor Company Rouge plant in Dearborn.

He had an insanity defense and the problem was, in his case, the jury was helplessly deadlocked on his insanity defense. That was until the judge brought the jury in, in the absence of counsel, and delivered an improper supplemental instruction.

All of the federal courts ruled that the trial court denied Mr. French his Sixth Amendment right to counsel by conducting a critical stage of the trial in the absence of defense counsel.

That ruling was upheld in June by the 6th Circuit. The U.S. Supreme Court denied certiorari last month so it's over.

Q. How do you have the time to both teach and take on these huge criminal and civil cases?

A. First of all, I think it's important to my teaching — I'm a much better teacher and scholar because I am litigating. One of the fears I had about becoming an academic was losing touch with what's going in the legal community.

I've determined that I will always have a few cases going at all times. When I left the State Appellate Defender Office to take my current position in 2000, I had 56 cases going at the time. I took eight with me that I just couldn't let go, mostly because I felt so strongly about the issues involved or because the cases were so advanced that I just didn't feel like it would be fair to pass them off to another attorney after years of litigating them. I continued to litigate those eight, and once French is gone, I'm really down to two of those eight.

I make the time because I think it's important, for me personally, because I care about these cases and I care about these issues, but I also think it makes me a much better professor. I talk about my cases sometimes in my class and I can relate the abstract concepts I'm teaching to real litigation.

Q. Tell me about the denial of a new trial for Mr. Cress.

A. I'm devastated to this day by the Michigan Supreme Court's decision, which constituted a gross distortion of the facts. I filed a motion for rehearing in the Michigan Supreme Court in which I demonstrated that almost every significant fact stated in that opinion is wrong.

For example, the Michigan Supreme Court claimed that Mr. Ronning never testified under oath that he had killed Patricia Rosansky and that's just flat wrong. He did repeatedly under oath testify that he killed Patricia Rosansky and passed a polygraph to that effect. They completely ignored the fact that Mr. Cress had passed a polygraph test after all this came to light, in which he denied killing Patricia Rosansky. The Michigan Supreme Court completely ignored the whole issue of destruction of evidence; there's not a word about it in this opinion although that was central to the case.

It was after Mr. Ronning came forward years after the fact that the prosecutors knew that this other man that was in prison on another rape murder was implicated and subsequently confessed to committing this murder, then they destroyed the physical evidence before it could be tested for DNA. There's not a word about that in the majority opinion except in a footnote where it says they don't have to deal with it. It is a shockingly awful opinion. It is a disgrace to Michigan jurisprudence, so we are now going to take the case to federal court

Q. We haven't yet talked about Spencer. Tell me about that case.

A. The Michigan legislature passed in 1996 or 1997 a statute unique in the nation, which allows the police to require any person under 21 whom they suspect has been drinking, to submit to a breathalyzer or face a $100 fine for refusing the test.

If the breath test comes back with anything other than zero the minor would be ticketed or charged with minor in possession of alcohol.

When I first read that statute I instantly concluded it was unconstitutional because persons have a right not to be subjected to searches, particularly intrusive searches except upon a warrant, with very few exceptions to that rule.

For years I was working with Michael Steinberg, the legal director of the Michigan ACLU, looking for a plaintiff to challenge this law. Subsequently, a number of jurisdictions including Bay City passed local ordinances that were identical to the state law.

We came across Jamie Spencer who was a perfect plaintiff. She had been ordered to take a breathalyzer test, she was 19 at the time and was roller blading in the city park in Bay City with her fiancée. She was ordered to take a breathalyzer without a warrant simply because other kids in the park had been drinking. The officers decided all of them probably were drinking and they ordered them all to take the test. She hadn't been drinking and was very angry about this personal indignity and this invasion of her privacy.

We brought the case and were very confident about the law here — it's so clear that Michigan can't do this. No other state has even attempted to do this. We're very pleased with the judge's decision. He found that the Bay City ordinance does violate the constitution. The next step in this is to apply this ruling to state law. We are looking forward to having this ruling apply across the state to stop this practice, which has been abused.

We've heard reports and read police reports in college communities such as East Lansing, where police show up at fraternity and sorority parties and breathalyze everyone at the party. This law is clearly abusive and this is exactly the sort of police practice the Fourth Amendment was designed to prevent. We're very pleased with this decision and we're confident it will hold up if there is an appeal.

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