Anatomy Of A Judicial Disaster

You won’t read a much harsher assessment of judicial misconduct than that found in a recent Special Master report before the Michigan Judicial Tenure Commission.

The high-profile hearing took eight hearing days in October. A further hearing on additional charges was held on November 19

Perhaps the most serious charge proven against respondent Theresa Brennan is her failure to disqualify herself from the case of People v. Kowalski, Livingston County Case No. 08–17643-FC, because it was not only serious misconduct, but also one that infected the integrity of a serious criminal proceeding, a charge of double homicide firstdegree murder that resulted in a sentence of life imprisonment without parole.

The Kowalski case was assigned in March, 2009 to Judge Brennan, who was crossassigned to the circuit court. Michigan State Troop Detective Sean Furlong investigated the case, was the co-officer in charge, took the confession of the defendant, and was the principal witness before and during the trial.

After finding the two were socially intertwined to an extent concealed from the parties

The foregoing was more than sufficient to have required Judge Brennan’s disqualification. The denial of disqualification was all the more egregious, however, because, by the time of the disqualification motion and for a significant period before, Judge Brennan had a romance with detective Furlong. Yes, a romance…

What appears, then, is the trajectory of a romance between Judge Brennan and Detective Furlong that started sometime before her birthday in 2007 and continued at least until sometime in late 2013 when, Judge Brennan says, they first had sexual relations. January 4, 2013, the date of the disqualification motion, fell at the hottest part of that trajectory.

Thus

Should Judge Brennan have agreed to disqualify herself at the time of the motion? The answer seems to be obviously “yes,” but as a practical matter it was a near impossibility for her to do it at the time, because a recusal in response to the motion would have acknowledged the travesty of having presided for 4 years over a criminal prosecution when she’d had a close relationship with the investigator, officer in charge, and principal witness.

So, what could or should Judge Brennan have done? When the Kowalski case was first assigned to her, she could have quietly recused herself sua sponte, with a vague reference to preserving the appearance of propriety. That would have saved us, and herself, that much of this travail.

The respondent’s concealment of her relationship with Detective Furlong and failure to recuse herself was gross misconduct that violated Canons 1, 2, and 3 C of the Michigan Code of Judicial Conduct.

She did not recuse herself from her own divorce for six days leading to another series of rhetorical questions

What could possibly explain a 6-day delay for a judge to sign a disqualification order in her own divorce case, especially when an emergency motion was pending? Why would a judge have to speak with a lawyer before signing such an order? And why did Judge Brennan lie in her insinuation to Ms. Pratt on December 6 that she had not yet spoken to her lawyer when she had in fact spoken to him the previous day? The evidence commands the conclusion that her intent was to stall for time in order obliterate the data on the phone so that it would not be available as evidence against her. Between the time respondent was apprised of the ex parte motion and December 8, she asked her courtroom staff and a police officer for assistance in deleting information and an email account from the cell phone. On December 8 she asked her court recorder, Felicia Milhouse, to try to delete the Hotmail account from the phone. After Ms. Milhouse was unable to do so, the judge instructed her to leave her duty as court recorder to continue the effort, which she did by means of an extensive Google search. On or shortly before December 8 Judge Brennan bought a new cell phone and, one way or another, caused the original phone to be reset to its factory settings, a procedure that erased all data from the old phone.

More likely than not, Judge Brennan’s attempts and eventual success in obliterating the data from the cell phone rendered her guilty of the felony described in MCL 750.483a(5)(a)…

She failed to recuse herself in cases where her very close friend and her firm were counsel.

The combination of all of the foregoing elements alone should have been enough to require Judge Brennan to provide a recusal – or at least a disclosure – in cases assigned to the judge where Ms. Pollesch or her firm were counsel…

All of the foregoing is aggravated by the fact that Judge Brennan did deny two disqualification motions brought on the basis of relationship with Ms. Pollesch, without a word from the judge about the circumstances listed above.

And abused those whose paths she crossed

The evidence establishes that Judge Brennan has been consistently abusive to attorneys, litigants and witnesses, and to her own court staff as well, as was the universal opinion of any witness who testified about the judge’s demeanor.

A number of examples are provided

David Kaplan, an attorney with 44 years experience in the courts, characterized Judge Brennan as “unique,” for having the worst demeanor of any judge before whom he had appeared in his lengthy career. Her behavior included degrading attorneys in front of their clients, he said, when there was no necessity to do so…

Carol Lathrop Roberts is an attorney who practiced in Livingston County for 30 years and appeared before Judge Brennan 4 or 5 dozen times, she estimated. She found respondent’s courtroom behavior appalling, abusive and routinely unpleasant disrespectful and intimidating to litigants and attorneys. Roberts deemed the judge “a black smear on the judiciary.”

…According to several witnesses, the judge was conspicuously and continually abusive to her secretary/court recorder, Kristi Cox, who herself testified to the same. She was diagnosed with posttraumatic stress disorder as a result of working for Judge Brennan.

And there is this finding

The scope of Judge Brennan’s willingness to give false testimony under oath is breathtaking. She testified falsely in depositions, in sworn answers to Commission questions, and during the hearing as well. If this opinion should attempt to address each instance or even most of them, it would be verbose in what has already been a lengthy process. Accordingly, we’ll note instead that the Examiner has painstakingly enumerated the instances of the respondent’s false testimony in a document entitled “Appendix 2 – False Statements.” Attached to this report, it is adopted as accurate.

She also used staff to run personal errands and in her campaign.

A stain on the judiciary spread  elsewhere

Jessica Yakel Sharpe was a law clerk and magistrate who worked for Judge Brennan for 2 ½ years. Among the things that Ms. Sharpe did for the judge was to stain the deck at her home over three days, two of which passed while she was being paid by the county. It’s no justification, of course, that the judge also paid Ms. Sharpe for that work.

WXYZ Detroit reports that prosecutors will agree to vacate the Kowalski conviction and grant him a new trial in light of this report. (Mike Frisch)