Alexander Aceval and others were engaged in transporting cocaine from Texas for distribution in Michigan. A confidential informant, who was involved in the plan, provided information to the police about the scheme. The police arrested all involved, including the confidential informant. Aceval was charged with drug-related offenses for his alleged role in the drug scheme. During an evidentiary hearing and at trial, the confidential informant lied about certain matters relating to his role – for example, he stated that he had had no contact with two investigating officers until the date of Aceval’s arrest. The two officers also gave false testimony to support the informant’s version of events. With the trial judge’s agreement, the prosecutor and police made a special record of the false testimony, with the judge stating that she was concerned that the informant would be in “grave danger” if he was revealed as the informant at trial. The jury could not agree on a verdict, and the trial judge declared a mistrial. Soon after, it came to light that the prosecutor and judge might have intentionally allowed the jury to hear perjured testimony. The prosecutor was removed from the case and the trial judge stepped down.
A second trial was scheduled. Before the trial began, a witness came forward and said that Aceval had asked him to provide false testimony. Aceval then decided to plead guilty to one count of delivering over 1,000 grams of cocaine. He was sentenced in accord with the agreement to a 10- to 15-year prison term.
Aceval sought leave to appeal, but the Court of Appeals denied his application. The Michigan Supreme Court remanded the case to the Court of Appeals for consideration of two issues, including whether the prosecution’s “acquiescence in the presentation of perjured testimony amounts to misconduct that deprived the defendant of due process such that retrial should be barred.” On remand, in a published opinion, the Court of Appeals affirmed Aceval’s plea-based conviction. The Court of Appeals held that, in this case, a retrial was the remedy for the prosecutor’s acquiescence in the presentation of perjured testimony at Aceval’s first trial. Aceval received this remedy when his first trial ended in a hung jury and a mistrial was declared, the Court of Appeals said. While the judge and prosecutor’s conduct was “plainly reprehensible,” the Court of Appeals explained, Aceval was not prejudiced because he received the remedy due to him – a new trial. The panel therefore affirmed Aceval’s plea-based conviction.
Aceval appealed. The Michigan Supreme Court initially denied leave to appeal, with three justices voting to grant leave to appeal, three justices voting to deny leave to appeal, and one justice not participating. Aceval filed a motion for reconsideration, at which time the Court voted to grant leave to appeal.