Ex-Detroit Mayor Kwame Kilpatrick lost an appeal of a judge's order Friday that would have allowed him access to jury records in his federal corruption trial.
The three-judge panel ruled Kilpatrick's appeal is premature. It could be reviewed if Kilpatrick is convicted in the federal case.
The ruling reads:
Defendant Kwame Kilpatrick is charged in a multi-defendant indictment with engaging in
a RICO conspiracy and other crimes, including extortion, bribery, mail fraud, wire fraud, and income
tax evasion. He appeals the pretrial ruling denying disclosure of juror wheel material that he asserts
is necessary to support a challenge to the jury selection process of the Eastern District of Michigan.
The government moves to dismiss the appeal for lack of jurisdiction. Kilpatrick opposes the
dismissal of his appeal.
"In criminal cases, the final judgment rule generally 'prohibits appellate review until
conviction and imposition of sentence.'" United States v. Gomez-Gomez, 643 F.3d 463, 468 (6th
Cir.), cert, denied, 132 S. Ct. 466 (2011) (quoting Flanagan v. United States, 465 U.S. 259, 263
(1984)). Kilpatrick concedes that the order on appeal is not a final judgment, but he asserts that it
is immediately appealable as a collateral order.
An appealable collateral order "must conclusively determine the disputed question, resolve
an important issue completely separate from the merits of the action, and be effectively unreviewable
on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978). The
collateral order exception to finality has consistently been defined by its narrowness, and it has a very
limited application in criminal actions. Examples of collateral orders in criminal cases include the
denial of a "right not to be tried" that "rests upon an explicit statutory or constitutional guarantee
that trial will not occur," such as the Double Jeopardy Clause or the Speech or Debate Clause of the
Constitution. Midland Asphalt Corp. v. United States, 489 U.S. 794, 801 (1989). Such a right not
to be tried is distinguishable from "a right whose remedy requires the dismissal of charges." United
States v. Hollywood Motor Car Co., Inc., 458 U.S. 263, 269 (1982).
The right to a jury chosen from a fair cross-section of the community, which Kilpatrick seeks
to immediately vindicate, is not a "right not to be tried" for the purposes of the collateral order
exception. The district court's ruling is effectively reviewable on appeal from the final judgment
although the remedy for any alleged violation may require the dismissal of the charges against
Kilpatrick. Accordingly, the government's motion to dismiss is GRANTED.
The ruling was issued weeks after Chief U.S. District Judge Gerald Rosen said Kilpatrick failed to prove he should get access to juror-related materials.
Kilpatrick, his father, Bernard Kilpatrick, contractor Bobby Ferguson and former Detroit water department director Victor Mercado all face charges in the case which accuses the men of participating in a criminal enterprise.