People Of The State Of Mich. v. Waterstone
| Decision Date | 04 June 2010 |
| Docket Number | Docket No. 140775.,COA No. 294667. |
| Citation | 783 N.W.2d 314,486 Mich. 942 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant,v.Mary M. WATERSTONE, Defendant-Appellee. |
| Court | Michigan Supreme Court |
On May 11, 2010, the Court heard oral argument on the application for leave to appeal the March 4, 2010 judgment of the Court of Appeals. On order of the Court, the application is again considered. MCR 7.302(H)(1). In lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals, and REMAND this case to the 36th District Court for further proceedings not inconsistent with this order. Given that appeals have already delayed a preliminary examination by 14 months since issuance of the criminal charges, and given that a full opinion could not proceed until the next term of this Court if leave to appeal were to be granted, we are satisfied that prompt resolution of this matter by issuance of an order is warranted. The Court of Appeals erred in holding that the Attorney General's office is disqualified from acting as special prosecutor. 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. See Attorney General v. Public Service Comm'n, 243 Mich.App. 487, 625 N.W.2d 16 (2000). The Attorney General's unique status “requires accommodation,” id. at 506, 625 N.W.2d 16, and such accommodation is particularly apt where no evidence has been presented of any prejudice that would be suffered by the defendant. We further hold that the Court of Appeals erred in suppressing the defendant's statements during the November 25, 2008 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.
I join and concur in the order reversing and remanding this case to the district court for further proceedings. I write separately to note:
The order of this Court provides due and proper process to the defendant judge, charged with allowing perjured testimony in a trial over which the judge presided. The Court's order gives the judge the specific opportunity to move for suppression of any evidence that she believes was unfairly obtained against her.
Justice Young's dissent is quite a contrast to the straightforward, clear, and brief order of this Court. His dissent is lengthy and confused, and it provides no satisfactory solution to the fears he attempts to create.
Further, I note that Justice Corrigan is not participating because as she states: “I am not participating because I may be a witness in this case.”
The Code of Judicial Conduct, Canon 2C states:
A judge should not allow family, social, or other relationships to influence judicial conduct or judgment. A judge should not use the prestige of office to advance personal business interests or those of others. A judge should not appear as a witness in a court proceeding unless subpoenaed.
On September 25, 2009 in People v. Aceval, No. 138577, a related case to this case People v. Waterstone, Justice CORRIGAN stated:
“I am not participating because I may be a witness in a related case.”
Regarding this statement, on September 28, 2009 the Detroit News reported: 1
“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?
“ Loyalty is an essential component in the lawyer's relationship to a client.” 2
I dissent from the order reversing the Court of Appeals decision. Instead, I would grant leave 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.3 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.
Particularly since the majority has decided to dispose of this weighty matter in a cryptic order, some presentation of the facts is necessary to understand why the majority's resolution is entirely unsatisfactory.
The defendant is a retired Wayne County Circuit Court judge, and this case involves allegations that she knowingly allowed witnesses to commit perjury during the criminal trials of Alexander Aceval and Ricardo Pena.
Following his trial, Aceval filed a civil rights action in federal court against the defendant, alleging that she “allowed ... perjured testimony to go to the jury” and that she conducted “secret ex-parte hearings” with the prosecutor assigned to the case. At that time, the General Counsel of the Michigan Supreme Court requested that the Attorney General represent defendant, pursuant to 2006 PA 345.4 An Assistant Attorney General within the Public Employment, Elections, and Tort (PEET) Division filed an answer on behalf of the defendant that denied any civil liability and asserted various affirmative defenses. In March 2008, the federal district court dismissed Aceval's complaint without prejudice. The Wayne County Circuit Court's counsel communicated this dismissal to Judge Waterstone by letter.
Following the federal court dismissal, an investigation was launched regarding various government officials' conduct in handling the Aceval matter-including, unbeknownst to her, Judge Waterstone. The Wayne County Prosecutor's Office disqualified itself from any investigatory or prosecutorial responsibilities involving Aceval's allegations of misconduct, and requested appointment of a special prosecutor in the matter. After the Oakland, Monroe, Genesee, and Washtenaw County Prosecutors each declined appointment, the Criminal Division of the Attorney General's office accepted appointment, apparently without knowing that Attorney General lawyers had previously represented Judge Waterstone on similar claims in the civil action.
The Attorney General's investigation ensued. On November 25, 2008, the Attorney General's Special Agent, Michael Ondejko, met with the defendant at her home to deliver an investigative subpoena. During the 30 minute interview, Judge Waterstone spoke unguardedly, once Agent Ondejko confirmed for her that the Attorney General was investigating the prosecutor that brought Aceval to trial, Karen Plants. A portion of the interview, which Agent Ondejko secretly recorded, proceeded as follows:
After receiving this assurance that the Attorney General's investigation focused on the prosecutor, Judge Waterstone discussed the trial in detail. Throughout the interview, Agent Ondejko did not inform her that she was a potential target of the investigation and did not advise her of her right to seek independent counsel or remain silent. And this interview occurred to Judge Waterstone's detriment...
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People Of The State Of Mich. v. Aceval, Docket No. 138577.
...by The News on Sunday, Corrigan said, I was asked to be a character witness, and I agreed.' ”The “related case” is People v. Waterstone, 486 Mich. 942, 783N.W.2d 314 (2010) a case involving charges of perjury against a judge who presided over proceedings in this instant case, People v. Acev......
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