People v. Waterstone

• Decision Date: 04 March 2010
• Docket Number: Docket No. 294667.
• Citation: 789 N.W.2d 669,287 Mich.App. 368
• Parties: PEOPLE v. WATERSTONE.
• Court: Court of Appeal of Michigan — District of US

287 Mich.App. 368

789 N.W.2d 669

PEOPLE

v.WATERSTONE.

Docket No. 294667.

Court of Appeals of Michigan.

Submitted Feb. 5, 2010, at Detroit.

Decided March 4, 2010, at 9:05 a.m.

COPYRIGHT MATERIAL OMITTED.

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, and Anica Letica, Assistant Attorney General, for the people.

Gerald K. Evelyn, Juan A. Mateo, Detroit, and Paul C. Smith, for defendant.

Before: ZAHRA, P.J., and KIRSTEN FRANK KELLY and STEPHENS, JJ.

PER CURIAM.

This case is before us on remand from the Supreme Court for consideration as on leave granted, People v. Waterstone, 485 Mich. 1016, 776 N.W.2d 113 (2010), limited to the issues whether the Attorney General's prosecution of defendant is consistent with the requirements of Michigan Rules of Professional Conduct (MRPC) 1.7, 1.9, and 1.10 and consistent with Attorney General v. Pub. Serv. Comm., 243 Mich.App. 487, 625 N.W.2d 16 (2000) ( AG v. PSC ). We reverse.

I. BASIC FACTS AND PROCEDURAL HISTORY

This case involves defendant's alleged conduct while she was a circuit court judge in knowingly permitting witnesses to commit perjury at a criminal trial. In 2005, the Wayne County Prosecutor charged Alexander Aceval and Ricardo Pena with narcotics trafficking and defendant presided over their jury trial. Inkster Police Officers Scott Rechtzigel and Robert McArthur allegedly lied at trial to protect the identity of their confidential informant, Chad Povish, who also allegedly lied at trial. ¹ Wayne County Assistant Prosecuting Attorney Karen Plants was aware of the perjury and discussed it with defendant ex parte. Defendant directed that the transcripts of the two ex parte meetings initially be sealed in an attempt to preserve the issue for appellate purposes. One jury convicted Pena, but Aceval's jury could not reach a decision. Aceval eventually pleaded guilty.

In 2006, Aceval, acting in propria persona, filed a federal civil rights lawsuit under 42 U.S.C. § 1983, naming defendant along with 13 others. Paragraph 27 of the complaint provided, in part:

In no less than two (2) secret ex-parte hearings with Circuit Court Judge Mary Waterstone, Karen Plants told the judge of perjured testimony by Robert McArthur, Scott Rechtzigel and Chad Povish.... [J]udge Waterstone and Plants then had the hearing transcript sealed. They also just allowed this perjured testimony to go to the jury. The judge did also order that the defense could not get a phone record that would have lead [sic] to the discovery of the perjured testimony. All of this has now been admitted to by Karen Plants and Judge Mary Waterstone.

Also, paragraph 28-12 provided:

Mary Waterstone was the Circuit Court Judge at plaintiff's trial. There is now unsealed transcript showing that this judge knew of the perjured testimony an[d] withheld it from plaintiff and the jury. Also this judge issued an order about a phone record to keep plaintiff from learning about the perjured testimony an[d] misled [the] defense stating “No one lies in my court room.”

General Counsel for the Michigan Supreme Court directed the Attorney General to provide counsel to defendant. The Attorney General assigned Assistant Attorney General Steven Cabadas of the Public Employment, Elections, and Tort (PEET) Division to represent defendant. Cabadas reportedly spoke to defendant three times on the telephone and filed a response on her behalf. The federal court dismissed Aceval's lawsuit on March 17, 2008, because Aceval had failed to provide the court with his address.

The Wayne County Prosecutor decided that, because of a conflict of interest, she could not bring criminal charges regarding the perjury. The prosecutor asked the Michigan Prosecuting Attorney's Coordinating Council to assign a special prosecutor. Prosecutors from four different counties declined to pursue the matter. The Attorney General ultimately accepted the prosecution and assigned the case to its Criminal Division, specifically assistant attorneys general William Rollstin and John Dakmak. ²

During the course of the criminal investigation in November of 2008, Attorney General investigator Michael Ondejko interviewed defendant at her home, while serving an investigative subpoena. The following exchange occurred during that interview, which Ondejko recorded: ³

Mr. Ondejko: And [Dakmak is] gonna be the assistant in charge of that-those interviews. So we've got you on the list as well as about 20 others.

Ms. Waterstone: As far as me.

Mr. Ondejko: Yeah.

Ms. Waterstone: This is in Karen Plants' investigation.

Mr. Ondejko: Yes, yes. That's-

Ms. Waterstone: I assumed that it-

Mr. Ondejko: I-

Ms. Waterstone:-that's what it was about.

Mr. Ondejko: [I] should've mentioned that.

Ms. Waterstone: That's okay. That was a-it was kind of an assumption, but I thought I should reclarify.

Mr. Ondejko: Yeah. That's kinda, you know, that's what it centers around. And then the officers who, you know, perjured themselves.

Ms. Waterstone: They did.

Before giving defendant the subpoena, Ondejko stated that it looked as though the officers had perjured themselves and stated “the only question is why this all happened.” Defendant then spoke to Ondejko at length; the interview lasted 30 minutes and the resulting transcript exceeds 30 pages. Defendant shared her thoughts regarding why the perjury had occurred. Near the end of the interview, Ondejko gave the subpoena to defendant.

In response to the investigative subpoena, defendant appeared without counsel in December of 2008. The following exchange occurred:

Mr. Dakmak: You understand that you have the right not to incriminate yourself, given any act that could get you charged or potentially charged with a criminal act at any point. Do you understand that?

Ms. Waterstone: I do.

Mr. Dakmak: And, of course, you have the right to consult with an attorney who could advise you on whether or not you should answer those questions. Do you understand?

Ms. Waterstone: I understand.

Mr. Dakmak: You have the right not to-strike that. Do you have any questions for me regarding your rights afforded to you under the Michigan [or the] United States Constitution?

Ms. Waterstone: No. My understanding was this involved the investigation regarding Karen Plants; is that correct?

Mr. Dakmak: Involving the investigation surrounding the trial of Alexander Aceval, Ricardo Pena, Wayne County Prosecutor's Office and the police department.

Ms. Waterstone: Okay. That's a little broader that I understood.

Mr. Dakmak: Just so you know, we haven't narrowed it down to a defendant. We haven't charged anybody with a crime yet. We're investigating the acts, everything surrounding it. Do you understand?

Ms. Waterstone: I understand.

Mr. Dakmak: Do you want to go forward and answer the questions we put forth to you today?

Ms. Waterstone: Sure.

In March of 2009, the Attorney General brought a felony complaint against defendant, Plants, and the officers. The Attorney General charged defendant with four felony counts of misconduct in office; two counts related to the two ex parte communications, one count involved the allowing of perjured testimony and the final count concerned the concealment of perjured testimony.

Defendant moved to dismiss the charges, arguing that the criminal complaint lacked any specific allegations of criminal intent. Defendant further argued that the charges ran afoul of principles of judicial immunity and separation of powers. ⁴

Defendant also moved to disqualify the Attorney General because of his representation of her in the federal civil lawsuit. Defendant contended that the Attorney General had a conflict of interest and could not bring the charges against her. In an attached affidavit, defendant indicated that she had a series of confidential communications with Cabadas about the events that had occurred at the Aceval/Pena trial.

The Attorney General answered that no conflict of interest existed because Cabadas had not communicated any confidential information to the Criminal Division. Cabadas also did not participate in the investigation or the prosecution of the criminal case against defendant. The Attorney General added that, in any event, any remedy would be limited to the appointment of a special prosecutor, not the dismissal of the charges. The Attorney General detailed certain screening procedures and provided an affidavit from Cabadas regarding his limited contacts with defendant.

The district court ruled that the Attorney General should not be disqualified, noting that AG v. PSC held that the Attorney General's unique nature precludes the mechanical application of the MRPC. The court observed that Aceval's federal case had ended before the Criminal Division began its investigation. The court examined affidavits from assistant attorneys general Cabadas, Rollstin, and Frank Monticello, the Attorney General's ethics officer, and stated that it was satisfied that no sharing of information occurred. The court determined that the MRPC had not been violated and denied defendant's motion to disqualify the Attorney General.

Defendant appealed to the circuit court, which permitted the parties to conduct additional discovery. The Attorney General submitted an affidavit, indicating that his office had been assigned 23,500 new cases in the previous year. He stated that he did not review every incoming case. He had no knowledge of Aceval's federal civil action against defendant before the Criminal Division authorized criminal charges and had never discussed the federal civil case with Cabadas.

The circuit court ruled that the Attorney General need not be disqualified on the basis of a conflict of interest. The court ruled that the Attorney General's Office operated as a firm, but it had sufficiently screened Cabadas pursuant to MRPC 1.10 and also the divisions acted independently. The court also decided that defendant had not been prejudiced as a result of Cabadas' prior representation of her in the federal...