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Prison "loses" relevant video; court departs from long-standing principle and refuses to instruct jury on "skepticism"

Kenneth Adkins sued Basil Wolever of the Ionia Correctional Facility, whom he claimed used excessive force by removing Adkins' handcuffs through prison bars in an injurious manner.  Originally, there was video of the event and color photographs were taken of the injuries Adkins suffered.  The pictures and video were to be maintained for three years in a secure administrative area of the prison.  When Adkins subpoenaed this evidence for trial, however, Wolever's attorneys claimed that it was "lost or destroyed" by prison authorities. 

Adkins sought a jury instruction allowing the jury to conclude, if it deemed appropriate, that the "lost" evidence would have been favorable to his claim.  The District Court in Grand Rapids concluded that it should apply Michigan law on "spoliation of evidence."  Following recent law established by the Republican Supreme Court majority, the judge held that since Wolever, personally, did not have custody of the evidence, the Court should not instruct the jury to be skeptical of its loss.  Adkins lost his jury trial and appealed. 

The Sixth Circuit concluded that it was not an abuse of discretion to refuse to give the instruction on "lost"  or "spoiled" evidence, given Michigan's interpretation of the rule, despite the fact that Wolever's employer (and the ultimate payor of any verdict) was the entity who controlled the evidence and was responsible to maintain it. 

We have no idea whether Adkins' claims were justified or whether the "lost" evidence would have supported his claim.  We do know, however, that it is poor public policy to give up the long-standing rule that the "real party in interest" must preserve evidence within its control--even if it is not the named party in the lawsuit.  The Republicans who control Michigan's judiciary earlier applied a similar approach to hold that Allstate Insurance owed no duty to preserve evidence because it wasn't the named defendant in a lawsuit.  The long-standing rule simply allowed jurors to infer that the evidence was harmful to the "spoiler," if they felt the evidence warranted.  This minimal prohibition against "losing" evidence should not be compromised.  Discarding it on behalf of corporate, governmental and insurer interests comports with the Repblican Justices' belief that these entities should owe no responsibility for individual defendants' actions. (Earlier cases have held that an employer is not responsible for a woman's rape by a co-worker, that the prison should not be responsible for a guard's rape of an inmate, among other decisions.  In each case, the Republicans, in over-turning long-standing precedent, have focused solely on whether the previously established duty would impose a "burden" on the employer.

Under the current state of "Republican special interest law" in Michigan, your work buddies or your insurer can discard the inculpatory evidence on your behalf, without even a suggestion of impropriety.  In this case, the appellate court reviewed multiple cases from around the country that supported Adkins' request, but concluded that while they might be persuasive, they did not compel the Court to give the instruction Adkins requested.  Therefore, the trial judge's decision was not "clearly erroneous."

Thompson O’Neil, P.C.
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