What a mess.
Back in 2005, when Mary Waterstone was still a Wayne County Circuit Court judge, the Wayne County prosecutor’s office charged Alexander Aceval with narcotics trafficking and took the matter to trial.
Waterstone presided. Karen Plants handled the prosecution. The jury deadlocked. A new trial was scheduled for June 1, 2006.
But before his retrial, Aceval came forward with an amazing tale. At his first trial, he claimed, two cops took the stand and lied to protect a confidential informant’s identity. Aceval alleged that the informant had lied as well.
Okay, here’s the really amazing part: Aceval said Plants knew about the perjury, had two ex parte hearings with Waterstone to tell her all about it, Waterstone sealed the hearing transcripts, didn’t say a word to Aceval and still let the case go to the jury.
Aceval said all of this meant there should be no retrial, especially not with Waterstone presiding and Plants prosecuting.
Waterstone disqualified herself. The retrial proceeded as scheduled with a new judge, who unsealed the ex parte hearing transcripts. The transcipts revealed that the perjury was apparently tolerated in a woefully misguided, and ultimately unsuccessful attempt, to keep the informant’s identity confidential.
The plot thickened with allegations that Aceval, before the retrial, convinced one of the prosecution’s witnesses to do some lying of his own on Aceval’s behalf.
The witness said that was indeed what happened and purged his testimony. The retrial was cut short when Aceval pleaded guilty to possession with intent to distribute more than 1,000 grams of cocaine.
Aceval repeated his allegations about Waterstone, Plants, the informant and cops in a federal-court suit filed on Nov. 30, 2006. Waterstone, naturally, was a named defendant. Because she was a judge at the time, the state attorney general’s office stepped up to defend her. On March 17, 2008, the federal court dismissed Aceval’s case, which he had filed pro per while in prison, apparently because he didn’t give the court his address.
Meanwhile, Wayne County Prosecutor Kym Worthy had a problem on her hands. Worthy decided that due to a clear conflict of interest, she could not initiate any criminal charges relating to the perjury. She asked the Michigan Prosecuting Attorney’s Coordinating Council to assign a special prosecutor. The council was turned down by prosecutors from four different counties.
Attorney General Mike Cox stepped up to the plate and took the case.
While the AG’s office was working up its investigation of Waterstone, the Court of Appeals was considering Aceval’s appeal. No doubt about it, wrote Judge Kirsten Frank Kelly on Feb. 5, 2009:
defendant was denied due process because of the trial court’s and the prosecutor’s misconduct. However, here we stress that defendant was not convicted following his first trial; rather, the trial court declared a mistrial because of a hung jury. This was clearly the appropriate remedy. Although both the trial court’s and the prosecutor’s conduct was plainly reprehensible, the blameworthiness of either is not the critical factor, because the primary inquiry is the misconduct’s effect on the trial. …
In this case, the complained-of misconduct did not prejudice defendant because he received the remedy that was due him: a new trial.
For these reasons, defendant’s constitutional due process claim must fail. …
Affirmed.
See, People v. Aceval. (majority opinion) (concurring opinion)
The AG’s office issued felony charges against Waterstone the very next month. Waterstone responded that Cox’s office defended her when Aceval sued in federal court and now wanted to prosecute her on basically the same facts. Waterstone argued that a conflict of interest prevented the AG from prosecuting her.
Up at the Michigan Supreme Court, Aceval was pressing his argument that his first trial had been too tainted to even permit a second trial, the one that ultimately resulted in his guilty plea. The MSC split 3-3 on taking the case, which meant the COA’s affirmance of Aceval’s conviction was left intact.
The 3-3 split resulted because Justice Maura Corrigan had agreed to be a character witness for Waterstone if her case ever comes to trial. See, The Michigan Lawyer, “MSC denies drug defendant’s appeal on 3-3 vote, Corrigan may testify for former judge in related case”
Last month, the COA, in People v. Waterstone, agreed with the former judge’s argument that Cox’s office had no business being in the case.
We conclude that the Attorney General violated the MRPC in undertaking the prosecution of defendant regarding misconduct in office in conjunction with the Aceval trial, where the Attorney General formerly defended her against Aceval’s federal claims, without first obtaining her consent. [My emphasis, not the COA’s]
To remedy the conflict of interest, we direct that the Attorney General withdraw from the prosecution of this case.
As you might have expected, the AG sought leave to appeal.
Last week, the MSC ordered Waterstone and the AG’s office to appear before the Court and argue whether leave should be granted. Corrigan again stated she wasn’t participating because she might be called to testify for Waterstone.
If the MSC ultimately rules that there is a conflict, it’s back to square one. The hunt for a prosecutor will begin anew, and, recall, they’re not exactly lining up at the gates for a crack at this one.
What a mess, and there’s no end in sight.
Farmington Hills attorney Richard Bernstein has 
The Michigan Lawyer 