Touting of GOP justices by chamber gets 'no foul' from Truth Squad

MICHIGAN TRUTH SQUAD ANALYSIS: "Real Cases" and "Tough Judges"

Who: Michigan Chamber of Commerce

What: Radio ads

Truth Squad call: No foul

The Michigan Chamber of Commerce has endorsed Republican state Supreme Court justices Stephen Markman and Brian Zahra and Republican candidate Colleen O'Brien.

Questionable statement: "A man convicted of raping a 7-year-old tries to g  free on a technicality. Judge Stephen Markman says no and the conviction stands."

The statement refers to the March 2006 conviction by an Ottawa County Circuit Court jury of Michael Allen Miller, convicted of first-degree sexual conduct for forcing a 7-year-old girl to perform oral sex. Not long after sentencing, his lawyer discovered that one juror failed to disclose his criminal past. According to court records, the juror was convicted in 1991 and in 1999 of assault with intent to commit sexual penetration.

The state Supreme Court voted 5-2 in October 2008 to uphold the conviction, ruling there was no evidence the juror's presence tainted Miller's conviction. "There is simply no evidence that this juror improperly affected any other jurors," Markman wrote for the court. Miller was given a 14- to 30-year sentence.

Questionable statement: "A man murders his girlfriend but Judge Colleen O'Brien sentences him to life, saying he's not fit to live in society."

The statement refers to the 2012 sentencing of Darius McCrary, convicted of killing his ex-girlfriend on Thanksgiving Day in 2010. Police were dispatched to the home of Fredericka Dixon, where they found her on the floor with several bullet wounds from a handgun. Investigators said that McCrary kicked in the door and started firing shots at Dixon. Oakland Circuit Court Judge O'Brien sentenced the Ferndale man to life in prison, calling it a "senseless killing. It was purely out of jealously and a need for control."

Questionable statement: "A sex offender tries to dodge reporting his whereabouts to police. Judge Brian Zahra says no and families are protected."

The statement refers to the July 2011 4-3 ruling by the state Supreme Court that convicted sex offenders cannot use homelessness as an excuse for not reporting their whereabouts to police under Michigan’s Sex Offender Registry Act. Randall Dowdy, who served 18 years in prison for kidnapping and rape, was charged in 2006 with failing to report his whereabouts and change of address after being forced to leave a Lansing shelter. Zahra joined three other justices in the majority opinion, which found that "an offender’s homelessness in no way prevents that offender from physically entering a law enforcement agency and truthfully reporting to the authorities information regarding the offender’s residence or domicile."

The case is accurately cited. The assertion "families are protected" as a result of this decision is speculative.

Questionable statement: "These are real cases where judges Colleen O'Brien, Steve Markman and Brian Zahra stood up to criminals that prey on the elderly, women and children. Judges Colleen O'Brien, Steve Markman and Brian Zahra deliver tough sentences and stand up for Michigan's families."

The cases cited are indeed real, though none specifically reflects criminals who prey on the elderly. The sentences in two of these cases could be considered tough. The assertion these judges "stand up for Michigan's families" is too broad a generalization to evaluate on the basis of these cases alone, but it's fair opinion characteristic of political advertising.

Questionable statement: "Judges O'Brien, Markman and Zahra have a combined 50 years of experience putting away rapists, murders and sexual predators. Colleen O'Brien, Steve Markman and Brian Zahra -- judges who stand up to real criminals."

O'Brien has served as a Circuit Court judge since 1998. Markman has 25 years of experience as a judge and with the U.S. Attorney's Office, including the past 13 years with the state Supreme Court. Zahra has four years as a Circuit Court judge, 13 years as a Court of Appeals judge and has served since January 2011 as a state Supreme Court justice. That indeed adds up to more than 50 years of experience, but in innumerable cases other than those of "rapists, murderers and sexual predators."

Questionable statement: "O'Brien, Markman and Zahra regularly hand down the toughest sentences to violent criminals who prey on the elderly, women and children."

Supreme Court justices do not "hand down" sentences. For the most part, they interpret appellate court rulings on trials court cases, in some cases upholding sentences and in other cases overturning them.

The assertion the three candidates are "toughest" on violent criminals is not substantiated beyond the cited cases. Michigan State University law professor Brian Kalt said there is "no way" to independently and objectively verify such a claim. Viewers should recognize this claim as the kind of charged opinion common in political campaign materials.

Questionable statement: "... believe that judges should enforce existing laws, not write new ones from the bench."

Law professor Kalt said that is a matter of perspective. "I look at the law and think that it clearly means X," he stated. "Therefore, I think you are 'writing new law' when you say that it means Y, because I don't see that in the law anywhere. But it works vice versa too, with you seeing Y in the law and accusing me of making up X." Kalt said that it is "generally true" conservative justices purport to reject the use of external interpretive techniques in deciding cases. "They say that they look just at the text of the law, while the liberals are more apt to look at the intentions of legislators," he stated.

Overall impression: The radio ads accurately describe three cases involving the three state Supreme Court candidates. The broader assertion these judges are "toughest" on violent criminals is opinion, not fact. This may be lost on many viewers, but the ads are a bit misleading in their suggestion that appellate and Supreme Court judges sentence criminals.

Foul or no foul: No Foul. These ads at times using some breathless language to tout the candidates, but that’s very common. Unlike numerous ads Truth Squad has found from campaigns regarding various candidates and ballot issues across the political spectrum, these do not devolve into political assassination techniques rooted in falsehood.

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