MSC to consider COA’s conflict ruling in Waterstone case

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.

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Waterstone catches break from MSC

The Michigan Supreme Court has put the prosecution of former Wayne County Circuit Judge Mary Waterstone on hold.

She’s facing felony charges for allegedly allowing perjury at a drug trial.

The MSC’s order directs the Michigan Court of Appeals to decide whether Attorney General Mike Cox can continue as prosecutor in the case.

From The Associated Press

The Supreme Court’s decision Thursday postpones a key hearing set for Monday to determine if there’s probable cause to send Waterstone to trial.

Waterstone wants the attorney general’s office off the case because it represented her in a separate but related civil lawsuit. The appeals court must make a ruling by mid-March.

Former prosecutor Karen Plants and two suburban police officers are also charged in the case.

Of note: Justice Michael Cavanagh voted against considering Waterstone’s request to boot Cox from the case. Justice Maura Corrigan did not particiapte in the decision because she has offered to be a character witness for Waterstone if the matter goes to trial.

Thursday legal(ish) links

Former judge Mary Waterstone wants the Michigan Supreme Court to remove the attorney general’s office as the prosecutor for her criminal case because the AG represents her in the civil case related to the same matter. She is accused of allowing a witness to lie in a 2005 drug case. [Fox 28 (South Bend, Ind.)]

Roger Parloff of Fortune Magazine thinks that  ‘honest-services fraud’ law is being overused. The SCOTUS will hear three ‘honest-services’ prosecutions this term – all of them high profile cases (Enron CEO Jeffery Skilling, Conrad Black and a former Alaskan legislator). The ‘honest-services’ fraud laws are designed to be a catch-all for dishonest activity that may not fall under other fraud protection laws. Think you can spot it? or do you want to see how erratic the application of the law is? Try this quiz! [HT: The great SCOTUSBlog]

One in five Americans needed a lawyer for something last year, says a survey by Findlaw. [TaxProf Blog]

If you really want to serve on the jury for the Justice Department’s trial of Sam Riddle’s involvement in the Detroit/Synagro bribery mess, too late. USDC Judge Avern Cohn told the media on Wednesday that the 100 juror candidates have already returned questionnaires and the pool will be ‘whittled’ down from there. [Detroit Free Press]

Ex-judge Waterstone seeks help from Michigan Supreme Court

From The Detroit News:

 A former Detroit judge wants the Michigan Supreme Court to review a decision that allows her to be prosecuted by the state attorney general’s office.

Mary Waterstone is charged with four felonies for her role in a Wayne County drug trial in 2005. She’s accused of allowing witnesses to lie.

Waterstone wants the attorney general’s office off the case because it represented her in a separate but related civil lawsuit. Three courts so far have ruled against her.

Bail revocation hearing set for Waterstone

“A judge ordered a bail revocation hearing today for retired Wayne County Circuit Judge Mary Waterstone, who faces a perjury-related felony charge, after Waterstone failed to show up for a status conference (Tuesday),” according to the Detroit Free Press.

“The Michigan Attorney General’s Office alleges Waterstone allowed ex-prosecutor Karen Plants and Inkster Police Officers Robert McArthur and Scott Rechtzigel to use false testimony to hide the key witness’ role as a paid informant in connection with a 2005 drug trial.

“Waterstone is charged with official misconduct for keeping the false testimony secret from the defense lawyers and jurors.”

Cox can proceed with Waterstone prosecution

The Detroit News reports that Wayne County Circuit Court Judge Daniel Hathaway, despite some initial misgivings, has ruled that Michigan Attorney General Mike Cox can proceed with prosecuting former Wayne County Circuit Court Judge Mary Waterstone, who has been accused of allowing perjured testimony at a drug trial.

From The News:

Waterstone was charged with felony misconduct in March by the attorney general, who took over the case after Wayne County Prosecutor Kym Worthy stepped aside, citing a conflict of interest, and four other county prosecutors refused to take the case. …

Waterstone claimed Cox and his assistants should be barred from prosecuting her because an assistant attorney general represented her in a civil complaint related to the same case three years ago. …

Wayne County Circuit Judge Daniel Hathaway said that at first glance it appears the Attorney General might need to step aside, but Hathaway said several factors overcame his first impression.

Hathaway found:

— The attorney general’s civil and criminal divisions are in separate buildings and don’t routinely share information.

— The criminal division wasn’t aware when it charged Waterstone that the civil division had briefly represented her in a federal lawsuit filed by the alleged drug dealer sent to prison after the trials in which Waterstone is alleged to have allowed perjury. That suit was later withdrawn.

— No confidential information was shared with criminal investigators by the assistant attorney general in the civil division who spoke with Waterstone three times on the telephone.

— After the issuance of the felony complaints and discovery of the civil division’s prior involvement with the judge, Cox initiated a “conflict wall” or policy that Hathaway reasoned would “ensure that there was no contamination or unauthorized exposure between the various AAGs or staff.”

Can Cox prosecute Waterstone?

Wayne County Circuit Court Judge Daniel Hathaway is expected to rule later today whether the Michigan attorney general’s office can prosecute former Wayne County Circuit Court Judge Mary Waterstone and others on charges related to perjured testimony at a 2005 drug trial.

Attorney General Mike Cox was brought into the case after Wayne County Prosecutor Kym Worthy disqualified herself. In addition to Waterstone, Karen Plants, a former Wayne County drug prosecutor, and two Inkster police officers are also being tried for perjury-related charges.

Waterstone argued that Cox shouldn’t be on the case because of a conflict in interest. His office defended her in Judicial Tenure Commission proceedings arising from the same incident.

Hathaway will sort it all out later today. If Cox is removed from the case, a special prosecutor will be appointed.