MSC: Cox can prosecute Waterstone, orders arguments in ‘Aceval’

In a trio of orders released over the weekend, the Michigan Supreme Court:

In Waterstone, five justices said that the Court of Appeals erred in by booting Cox from the case.

While recognizing that the Attorney General is subject to the rules of professional conduct, we hold that disqualification is not required in this case because accommodation of his unique constitutional and statutory status will not infringe on the defendant’s right to a fair prosecution. …

The Attorney General’s unique status “requires accommodation,” … and such accommodation is particularly apt where no evidence has been presented of any prejudice that would be suffered by the defendant.

The Court also stated that the COA acted prematurely by suppressing Waterstone’s statements to an AG investigator during an interview at her home.

The defendant did not move for suppression of these statements in the lower courts and, thus, the Court of Appeals fact-finding and suppression rulings were premature. This order, however, does not preclude the defendant from pursuing suppression in the lower courts, nor does it preclude the Attorney General from conceding to suppression.

Justice Elizabeth A. Weaver, in a concurring statement, noted that Justice Maura D. Corrigan was not participating because Corrigan has been asked to be a character witness for Waterstone.

Weaver had a few questions about Corrigan’s decision not to participate:

Regarding this statement, on September 28, 2009 the Detroit News reported:

“Contacted at her home by The News on Sunday, Corrigan said, ‘I was asked to be a character witness, and I agreed.’”

Has Justice CORRIGAN agreed to be a “character witness” in this case as quoted in the Detroit News?

Has Justice CORRIGAN been subpoenaed in this case? If so, when?

What is Justice CORRIGAN’s relationship, if any, to the accused defendant Judge Waterstone?

Justice Robert P. Young Jr. dissented, arguing that instead of reversing the COA, the Court should have granted leave to appeal

on the broader question of how the Michigan Rules of Professional Conduct apply to the Attorney General’s unique role as the chief legal officer of this State. The Michigan Rules of Professional Conduct (MRPC) establish necessary principles and rules to safeguard a fair adversarial system of justice under the law.

I agree that the common law and constitutional role of the Attorney General requires accommodation, not an exception, in applying general ethical rules to specific situations, because the general rules do not fully encompass the Attorney General’s unique role.

Nevertheless, we must be careful that, in forging the proper accommodation that would allow the Attorney General to carry out his various and sometimes conflicting functions, we do not jettison the important ethical principles that all lawyers must follow. Unfortunately, I believe this is exactly what the majority has done.

The order they have issued is intentionally and artfully obscure. It cursorily reverses the Court of Appeals decision and fails to offer a scintilla of rationale for the majority’s decision in this case. The majority has provided no rationale, and I do not pretend to have a clear idea regarding how to tailor the MRPC to this case.

That is precisely why I believe that this Court ought to grant appellant’s application for leave to appeal so that the parties — and amici — can more fully brief this Court about the real-world consequences of accommodations that should or should not be made when applying the MRPC to the Attorney General.

In Aceval, the Court has asked the parties to

address whether the prosecution’s acquiescence in the presentation of perjured testimony in order to conceal the identity of a confidential informant amounts to misconduct that deprived the defendant of due process such that retrial should be barred.

The full-Court consideration of Aceval’s disqualification motion produced a bit of a pot-boiler.

As he has in the past, Young refused to participate in the disqualification proceeding on his belief that amended MCR 2.003 is unconstitutional.

In a concurring statement, Weaver said, “I make no criticism or objection to his position to not participate because he believes the rule is ‘unconstitutional.’”

But Weaver immediately clubbed Young for filing an ethics complaint with the Judicial Tenure Commission for her alleged violation of AO 2006-8, which provides:

All correspondence, memoranda and discussions regarding cases or controversies are confidential. This obligation to honor confidentiality does not expire when a case is decided. The only exception to this obligation is that a Justice may disclose any unethical, improper or criminal conduct to the JTC or proper authority.

Weaver calls AO 2006-8 the “Gag Order,” and says it is unconstitutional.

So, in Weaver’s view:

Justice YOUNG’s approach as to the disqualification rule is quite inconsistent with his condemnation of my position that the “Gag Order,” AO 2006-8, is unconstitutional; is in conflict with and in violation of Canon 3A(6) of the Code of Judicial Conduct; and is an effort to establish secrecy (i.e., a “secret club” rule) to keep me from performing my duty to the people to inform them of what I believe they need to know — no more, no less — about how, what, when and where the Court performs the people’s judicial business.

We’ve got plenty of background on all three of these rulings and related subplots. See, The Michigan Lawyers, “MSC to consider COA’s conflict ruling in Waterstone case”; “Hathaway won’t step away from Aceval case, Markman complains of delay” and “Supreme spat.”

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