Kwame’s poverty claims unrealistic, AP says

COREY WILLIAMS,Associated Press Writer

DETROIT (AP) — If ever a public figure should be down for the count, it is Kwame Kilpatrick.

Stripped of his job as Detroit’s mayor, locked in jail for 99 days and saddled with a felony record, he is legally prohibited from seeking the only occupation he ever wanted — elected leader. And his troubles keep coming. He may be called before a judge again for failing to make court-ordered restitution.

But if the 39-year-old Kilpatrick is a ruined man, he doesn’t seem to have noticed. When he returns to Detroit for court appearances, he travels from his rented mansion outside Dallas, where he and his wife drive luxury vehicles and spend money on golf, restaurants, nail treatments and other amenities, according to government prosecutors.

His lawyer’s explanation: For him to earn and pay his debt to society — $1 million in restitution to Detroit — Kilpatrick has to maintain a certain lifestyle to woo clients in his new job as a software salesman.

So far, Kilpatrick has fashioned a remarkable second act in the life of a disgraced official. It demonstrates that the talents that helped make him mayor — charm, a confidence bordering on arrogance, and the ability to inspire loyalty among friends and affluent supporters — haven’t failed him.

"When history records him, he will be considered, in spite of whatever mistakes he made, a great mayor," said community activist Malik Shabazz, who is among the Detroit admirers who stand by him.

The question now is whether Kilpatrick’s rebound could soon be ending. The state Court of Appeals agreed to postpone a court hearing scheduled for Friday, but he still could face arraignment on the charge of violating his probation by missing a $79,011 restitution payment due last week. If the arrest warrant issued Thursday — and then suspended — is eventually served, he could wind up back in a cell overlooking the city he once led.

Kilpatrick often boasted over his 6½-years as mayor that he was from Detroit and the city was in him. He still has a following, despite his ouster in 2008 for lying under oath about an affair with a staff member.

A product of the mostly black, blue collar town, his mother is Democratic U.S. Rep. Carolyn Cheeks Kilpatrick. His father Bernard is a former county commissioner. He shares the politician’s gift for speaking well and being at home in the limelight.

"He’s the center of attention wherever he goes," said Janee Bradford while waxing and trimming a customer’s eyebrows at Clear Salon & Spa in Detroit. She has voted for him and followed his career. "He has presence and confidence," she said.

Years after his tenure as mayor, conversation at the salon still turns to Kilpatrick, she said.

Some of his admirers take delight in the style and resilience he has shown, and see racial overtones in the continuing prosecutions.

"In the street, in the hood it’s called ‘weather, traffic and Kilpatrick,’" Shabazz said. "The only thing I can feel is empathy. Enough is enough. Leave the brother alone and let him finish out his probation."

Shabazz and others believe Kilpatrick’s troubles are steeped in Detroit’s legacy of mistrust between whites and blacks, and blacks and the system.

In their petition to the appeals court for the hearing delay, his lawyers touched on that theme. "The town is divided, with many of the opinion that Mr. Kilpatrick is nothing more than a darker version of Bill Clinton."

Not all supporters are in the neighborhoods. Some are in the top ranks of Detroit’s business community. And they have helped him land on his feet.

Manuel "Matty" Moroun, owner of the Ambassador Bridge, which spans the Detroit River between the city and Windsor, Ontario, gave Kilpatrick’s wife Carlita and their children a $50,000 gift in late 2008.

Compuware Corp. chief Peter Karmanos and three other businessmen gave Kilpatrick loans totaling $240,000 shortly after his 2009 jail release. Karmanos also arranged Kilpatrick’s job in Dallas as a software salesman for Compuware subsidiary Covisint, where he makes a $120,000 salary. Each was prominent in Detroit city affairs during Kilpatrick’s tenure.

In moving into his new life, Kilpatrick was able to move into a 5,800-square-foot, five-bedroom house in the exclusive Dallas suburb of Southlake that is bigger than Detroit’s official mayoral home.

The same good fortune hasn’t followed the former city aide who was implicated with Kilpatrick in the scandal that cost him the mayor’s position. Christine Beatty and Kilpatrick were both charged with lying under oath about their relationship after sexually explicit text messages contradicted their testimony in a whistle-blowers’ trial months earlier.

Both went to jail. But after her release, the divorced mother of two had trouble finding a job and was unemployed for nearly a year before recently finding work in Georgia.

Recently, Kilpatrick said he was unable to raise enough cash to make this month’s $79,011 payment. Money orders and cashier’s checks totaling nearly $41,000 were given to the court on his behalf.

Kilpatrick’s attorneys insist he can’t afford to dial back his lifestyle so he can make the restitution payments.

In his job, "The clientele he must establish a rapport with are likely to be the privileged and the affluent," said a petition filed late Tuesday. "The deals he must close to fulfill the restitution obligation require considerable time and he is going after sophisticated clients — burgers and beer at the local bar is not going to be sufficient."

Kilpatrick’s allies and detractors and the Detroit legal community are watching the struggle play out.

"Do you put somebody in jail and never get the money, or do you try to work out something? We don’t have debtor’s prison," said University of Detroit-Mercy law professor Peggy Costello.

[Response to Costello from Brian: Yes, but this isn’t about a standard debt. Kilpatrick agreed to repay the city as part of a reduced criminal sentence for a felony. If he doesn’t live up to the terms of the reduced sentence, he absolutely should be forced to serve a felony sentence. Let’s not pretend like he’d be jailed for missing his mortgage payment.]

MSC adopts prisoner mailbox rule

Pro se prisoners’ appeals will be considered filed when they place the legal documents in the prison’s outgoing mail system, under Michigan Court Rule amendments the Michigan Supreme Court adopted yesterday on a 5-2 vote.

From the staff comment to ADM File No. 2009-07:

The rule applies to appeals from administrative agencies, appeals from circuit court (both claims of appeal and applications for leave to appeal), and appeals from decisions of the Court of Appeals to the Supreme Court.

The amendments affect MCR 7.105, 7.204, 7.205, and 7.302 and take effect May, 1, 2010.

Why did the MSC do this? You may be shocked to learn that prison mail systems do not always operate as efficiently as the U.S. Postal Service. Chief Justice Marilyn Kelly presented her view on the situation in a concurring statement to the amendments:

This Court has seen numerous prisoner appeals rejected as untimely despite the fact that they were delivered to the prison mail system before the filing deadline. In one case in which the appeal was not timely received, the prisoner placed it in the prison mail system more than two weeks before the filing deadline. See In re Kinney, 483 Mich 944 (2009) (KELLY, C.J., concurring).

In dissent, Justice Maura Corrigan said the rule is unnecessary and noted that Michigan provides “inordinately generous” filing deadlines.

The prison mailbox rule that the Court now adopts, however, unnecessarily favors prisoners by extending their rights to appeal and thereby delays finality of their cases. The rule clearly does not engender equality of treatment, but establishes special treatment for prisoners only.

Young acknowledged that prisoners are not on equal footing with members of the general public.

Certainly, a dilatory prisoner may be more disadvantaged than a dilatory member of the public. However, imprisonment is not without its inconveniences. …

Rather than acknowledge that the generosity of our filing deadlines renders a mailbox rule unnecessary, the majority incentivizes delay by tardy filers who apparently cannot file their papers within either a 42-day period or a 365-day period. While the mailbox rule is premised on the federal system, the majority fails to acknowledge that inmates in the federal system have only 10 days in which to file their application.

It is one thing to ensure that imprisoned defendants have fair access to the courts. It is entirely another to reward a lack of diligence and cunctatory behavior.

Ok, anyone out there who has not sent a law clerk rushing to the courthouse with a last-minute, beat-the-deadline filing, please raise your hand.

Kilpatrick dodges hearing – for now

  Former Detroit Mayor Kwame Kilpatrick has gotten a repreive from the Michigan Court Of Appeals, which halted his Friday probation violation hearing, reported The Detroit Free Press:

The ruling also put on hold, at least temporarily, an arrest warrant signed [Thursday] by Wayne County Circuit Judge David Groner for Kilpatrick after he failed to make a $79,011 court-ordered restitution payment stemming from his criminal case along with additional allegations that he failed to give a “complete and accurate accounting” of his wife’s finances.

 The warrant also alleges that Kilpatrick failed to surrender all his tax refunds and did not account for all his gifts and benefits, including the $240,000 lent to him by various business leaders, including Peter Karmanos, Roger Penske, Dan Gilbert and Jim Nicholson.

 Nonetheless, the appellate judges had words for Daniel Hajji, one of Kilpatrick’s attorneys, after Hajji argued this week in court filings that his client

 In the motion to stop the proceedings, Hajji wrote Tuesday that the former Detroit mayor has to maintain an upper-crust lifestyle in Texas because he is trying to sell computer systems to “the privileged and the affluent.”

 Appellate Judge Karen Fort Hood wrote that Hajji’s filing is “unconscionable and does not merit serious consideration.”

 The warrant was requested by the state Department of Corrections and Kilpatrick’s probation officer.

 Additionally, the warrant says Kilpatrick did not turn over his state and city pension, as required by his 2008 plea agreement.

  There was no time frame given for a resolution, but you can bet this case his the highest priority and will be adressed immediately, if not sooner.

Ex-Holland deputy city pleads guilty to sex charges, gets wrist slap

Former Holland deputy city attorney Carl Gabrielse has plead guilty to charges that he exchanged a reduction in charges against a women for sex with her. The Holland Sentinel has the facts:

Gabrielse, 31, pleaded guilty as charged Wednesday to third-degree criminal sexual conduct as well as misconduct in office. He admitted to sexually assaulting a 21-year-old Zeeland woman in a Holland District Court bathroom after telling her he would reduce her charge in exchange for sex.

After the woman reported the assault, Gabrielse was fired Nov. 6 from the law firm Cunningham Dalman, where his duties included work as a deputy city attorney prosecuting civil infractions.

When pleading guilty before Judge Calvin Bosman, Gabrielse said he made a plea agreement with her for “improper reasons.”

When Bosman asked him to clarify, he said, “I made a plea agreement with a defendant in exchange for sex.”

The plea agreement requires Gabrielse to serve six months in Ottawa County Jail and to receive sex therapy.

The plea agreement requires Gabrielse to serve six months in Ottawa County Jail and to receive sex therapy.

Upon successful completion of that therapy as well as probation, Gabrielse will be allowed to withdraw his guilty plea to the criminal sexual conduct charge, a 15-year felony. However, in its place, he must plead guilty to gross indecency between a male and female, a five-year felony, under the terms of the plea agreement. A plea to that charge would not require him to register as a sex offender.

“Gross indecency” doesn’t appear to be defined by statute, but applying the Potter Stewart methodology, I assume it means having sex in public.

Assuming he completes his probation and sex therapy, that’s quite the slap on the wrist for gross abuse of power, let alone for blackmailing a young woman into having humiliation sex with you in a bathroom stall over a civil infraction.

Ex-KMart CEO ordered to pay up

It’s the season for restitution, I guess. (Better than the Couch of Restitution!)

DETROIT (AP) — The former head of Kmart Corp. has been ordered to pay more than $10 million for misleading investors about the retailer’s health before bankruptcy in 2002.

U.S. Magistrate Judge Steven Pepe (Payp) released a 70-page decision Thursday, nearly nine months after Charles Conaway was found liable in a civil trial in Michigan.

The case was a fresh look at Conaway’s brief tenure at Kmart and the desperate scramble to keep the company afloat before one of the largest bankruptcies in retail history.

The Securities and Exchange Commission had accused Conaway of failing to disclose that Kmart was delaying payments to suppliers to save cash.

Conaway will appeal the jury’s verdict and the financial penalties.

Blame It On The Goose, Blame It On The Henny

Back in the day, I interned at a local prosecutor’s office, you know, the one in the largest city in Michigan. There, I watched a drug trial in which a defense attorney defended his drug dealing¹ client by saying, and I quote, “My client is a drug dealer, but he’s too good a drug dealer to get caught. There is no way he could have been selling drugs when he was arrested.”

A, er, “nuanced” defense, for sure, but not exactly one you could expect a jury of civies to digest.

¹ Allegedly!

Now consider the new defense of Kwame Kilpatrick in his probation appeal. His attorney, Daniel Hajji, filed his brief in the Court of Appeals yesterday, arguing that it’s not fair that Kilpatrick be expected to make such a large restitution payment because it’s absolutely necessary that Kilpatrick live the high life.

"The clientele he must establish a rapport with are likely to be the privileged and the affluent," Hajji said in the motion. "Burgers and beer at the local bar is not going to be sufficient."

[Detroit Free Press]

More from the brief from the Freep:

In a motion asking the appeals court to reconsider and postpone Kilpatrick’s Friday probation-violation hearing in circuit court, Hajji said: "Detroit is being revictimized, and this time, the trial court and the prosecution are lending a hand."

Hajji said it would be no surprise if Kilpatrick loses his job because of the additional scrutiny. "The trial court and the prosecution do not seem to be concerned with getting the restitution paid," he wrote of Wayne County Circuit Judge David Groner.

"The trial court appears to infer that it wants Mr. Kilpatrick to live a middle-class existence, when such an existence is inconsistent with earning a sufficient amount to fulfill his restitution obligation.

"Mr. Kilpatrick is going to have to function in the upper echelons of society."

Maybe Groner should just order Carlita to pay it then, you know, marital assets and all. Besides, Kwame doesn’t know if she has a job to lose.

[UPDATE: Read the motion for yourself here. The Freep story is just the tip of the iceberg.]

Proposed legal service tax could be nixed

Following the release of Gov. Jennifer M. Granholm’s proposed 2011 state budget, Rep. Alma Wheeler Smith, D-Salem, has indicated that a substitute bill is being prepared that would exempt legal services from the 5.5 percent service tax rate in the plan.

Granholm’s budget called for an across-the-board 5.5 percent service tax on everything from dry cleaning to estate planning, along with a reduced sales tax of 5.5 percent.

As Michigan Lawyers Weekly reported in its Feb. 22, 2010, edition, small- and mid-sized attorneys were against the surcharge, and that the State Bar of Michigan was doing hard lobbying to quash the tax for attorneys.

Elizabeth K. Lyon, director of governmental relations for the State Bar of Michigan, said it was “a misery tax,” adding that “Legal services are no more discretionary than medical services, and if medical services are exempt, so should legal services.”

Apparently, Smith feels the same way.

Kwame up the river – again?

Former Detroit Mayor Kwame Kilpatrick was ordered back to court Friday by Wayne County Circuit Judge David Groner to address probation violation for non-payment of restitution.

According to The Detroit Free Press:

Groner also opened the door for prosecutors to address allegations of additional probation violations. Prosecutors have contended that Kilpatrick has repeatedly violated probation by lying about his finances and hidings his assets with his wife, Carlita.

“Your client is to be here Friday at 9 a.m. and at that point there will be a warrant that will be completed,” Groner told Kilpatrick’s lawyers. “We’ll arraign your client on that warrant, and we will proceed to a hearing sometime after that.”

The Michigan Department of Corrections sent a report to Groner on Monday showing that Kilpatrick had not met the judge’s Friday deadline to make a $79,011 payment toward his $1-million restitution. However, the former mayor came up with $14,048 on Friday and $21,125 on Monday.

Seems the 35 grand came from some “warm hearted people” according to Michael Alan Schwartz, one of Kilpatrick’s lawyers, who also noted that the mayor is pretty much destitute and if he doesn’t have the cash, how can he be in violation of the probation terms.

That old saw, however, is growing old with Groner who, just two weeks ago was regaled with tales of extradordinary amounts of money – several hundred thousand – going through the hands of the Kilpatrick  family.

But alas, Kilpatrick argues, that was then and this is now.

Anyone got spare change for a one-way plane ticket to Detroit lockup?

2010 Law Combine begins today

This week, people fresh out of school are congregating to be poked and prodded for their fitness to compete at the next level.

No, I’m not talking about the NFL Scouting Combine. I’m talking about the bar exam.

That’s right. It’s National Bar Exam Week! All around the country, recent (and some less-recent) law school grads are FREAKING OUT, MAN! (WARNING: Some language in the tweets is NSFW, but the link itself is clean.) because three years of studying, not to mention eight weeks of cramming, has culminated into a final two (or three) day version of the Marine Corps Crucible.

Good luck to all taking it. It’s not that bad. What’s worse is passing it and having to find a job.

[Link: Business Insider.com via Above The Law]

Obituary: Eaton County Judge Michael Skinner

Eaton County Probate Judge Michael Skinner has died after a 10-year fight with cancer, reports The Lansing State Journal. He was 58.

Skinner was elected to the bench in 2000 and learned he had cancer the same year.

“He had to deal with that every single day he was a judge,” said Tom Eveland, chief judge for the Eaton County circuit and probate courts.

“In spite of that, he took on a lot of work that had not been done by the probate court before,” such as handling most of the county’s juvenile cases.

Skinner sat by assignment in the Eaton Circuit’s family division.

Skinner was a board member of Child & Family Services, Inc. He was an adjunct professor at the Michigan State University Law School.

Skinner was also a former president of the Southwest Michigan Probate Judges Association.

A funeral service will be held Saturday, Feb 27 at 11 a.m. at St. Paul’s Episcopal Church, Lansing. The Tiffany Funeral Home, Lansing, is handing the arrangements.