My Uphill Journey to the Nation’s Highest Court
 Much like an athlete who dreams of winning championships, every lawyer dreams of having a chance to argue a case in the United States Supreme Court.
Looking back at 2003, my star has certainly been in the right place. The documentary feature movie, Bowling for Columbine, in which I appear prominently, was honored with an Academy Award. I participated in the pre-Oscar festivities in Hollywood and argued a case before the United States Supreme Court all in the same month. The later no doubt, is the legal profession’s version of the Oscars.
Prosecutors usually prevail in most murder prosecutions. However, in the unusual gang-related murder case of Jones vs. Vincent (U.S. Supreme Court Docket # 02-0524) the prosecution was in for an uphill fight. The case arose from a murder outside a homecoming dance at Hamady High School in Mt. Morris Township. A jury convicted the defendant, Duyonn Vincent of first-degree premeditated murder.
Duyonn Vincent’s conviction set the stage for a twelve-year legal battle that ultimately ended up before United States Supreme Court. It became the first Genesee County criminal case to receive the attention of the nation’s highest court.
Vincent challenged his conviction in the Michigan Court of Appeals and won. The court set aside his conviction and ordered him re-sentenced for second-degree murder. They found that trial judge, Donald R. Freeman, erred by first acquitting Vincent of first-degree murder then later reconsidering his ruling and allowing the jury to convict Vincent of it. In setting aside the first-degree murder conviction, the court ruled that Judge Freeman violated Vincent’s constitutional rights by twice placing him in jeopardy.
The prosecution contended that Judge Freeman did not direct a verdict of acquittal. His statements were ambiguous, equivocal, and amounted to the court thinking aloud. Moreover, Judge Freeman adamantly denied he had acquitted the defendant.
The prosecution then appealed. In a 5-4 decision, the Michigan Supreme Court reversed the Court of Appeals in favor of the prosecution and reinstated Vincent’s murder conviction.
The defendant then sought review by the U.S. Supreme Court, court denied review of the alleged double jeopardy violation.
The game of legal Ping-Pong continued in the U.S. District Court. Vincent petitioned for a Writ of Habeas Corpus. U.S. District Court Judge Paul Gadola, a conservative Reagan appointee, ruled in favor of Vincent, granting him the relief sought. In granting the writ, Judge Gadola Court set aside the jury’s first-degree murder conviction and reversed the Michigan Supreme.
The prosecution then appealed to the U.S. Sixth Circuit Court of Appeals in Cincinnati, Ohio. A three-member panel upheld the granting of the Writ of Habeas Corpus by Judge Gadola.
The staff of the Michigan Attorney General, who assisted us, believed the battle was now a hopeless cause. They recommend not continuing this uphill struggle. That is when my assistant, thirty-six year veteran, Donald A. Kuebler stepped in. He wanted to take the case to the United States Supreme Court.
The odds were long that the court would even hear the case much less prevail! The United States Supreme Court receives approximately 9,000 requests for review each year. They accept approximately 80 for argument. My case was in the ditch and nothing short of a miracle was going to keep in going. I decided to go for it anyway.
The next turn in this unusual legal journey took place behind the closed conference room doors of the United States Supreme Court. At least four Justices must agree to take a case for review. In order for the United States Supreme Court to take a case, it must to resolve important questions of law for the entire nation. It took five certiorari review conferences of the Supreme Court before it agreed to hear the case. That may be a near record for the court.
When I learned, the Court struggled for weeks in just deciding to accept the case my worries grew. The prosecution had lost in three of the four appellate courts that heard the matter. Uphill might not fully describe this situation. Perhaps we will never know what happened in those five meetings in which the Justices deliberated. On January 10, 2003, they agreed to hear the case. That decision resulted in the opportunity of a lifetime for me.
My job was to convince the nation’s highest court to settle a split of authority between numerous Federal and State courts on the issue of double jeopardy and mid-trial acquittals. If the Supreme Court rules in favor of the prosecution, Vincent will remain in prison serving a life sentence without parole. If it rules for Vincent, he will be re-sentenced for second-degree murder and would be immediately eligible for parole.
Soon I found myself with the support of the United States government and 21 states Attorneys General. The U.S. Solicitor General received 10 minutes for oral argument. I had 20 minutes to make the case with the Justices.
The preparations were intense. The Michigan Attorney General’s staff scheduled sessions that lasted for hours at a time. We debated the legal issues from every angle. There were moot court practices in Lansing and Washington, D.C. I faced off with some of the America’s brightest lawyers posing as Justices. Like finals week in law school, I pushed myself hard and often late into the night.
After nearly four months of immersion into the world of constitutional law, April 21 soon arrived.
I entered the ornate courtroom after a brief orientation by the Clerk of the Supreme Court. In the front row, were my children Annick, 16, Michael 13, and Britany, 12. They were awaiting one of the most memorable civics lessons of their young lives.
This was a moment to savor. Once at the counsel table I organized my nine pages of prepared notes. It then struck me how many important matters had been decided in this ornate courtroom. Theodore Olson is the Solicitor General of the United States, walked into the courtroom as was sitting nearby to observe the arguments. He was the lawyer who argued Bush vs. Gore. The Supreme Courts decision in the 2003 presidential election case literally made George W. Bush President of the United States.
My opponent was sitting at the counsel table. I shook his had and wished him well. I leaned in his direction and joked, “You’re very lucky I have a “C” in my last name. Taking that with good humor he shot back, “No, I am lucky my last name is not Gore!” Then suddenly, the Clerk called the Court to order and the Justices appeared.
The Chief Justice William Rehnquist then called the case. I arose nervously and addressed the Court with the traditional salutation, “Mr. Chief Justice…and may it please the court. Then began the longest and most thrilling 20 minutes of my legal career. I stood there fielding questions from the Justices of the United States Supreme Court.
I left the courtroom that day truly in awe. I also left with two white quill pens compliments of the Court to commemorate this once in a lifetime experience. As for my children, they wondered why Justice Clarence Thomas was nearly falling asleep!
By:
Arthur A. Busch
Prosecuting Attorney
Genesee County, Michigan
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