“This Is Inane”
An appeal of a Master’s findings favorable to a judge charged with misconduct as a prosecutor is scheduled before the Michigan Judicial Tenure Commission
Disciplinary Counsel and respondent have filed briefs addressing the Master’s report in FC 104, Hon. Paul J. Cusick. Disciplinary Counsel’s objections to the report may be accessed here. Respondent’s brief in support of the report may be accessed here.
Counsel have until November 6, 2023, to file responses. The Commission will then schedule oral arguments.
Oral argument is now scheduled on January 8, 2024 at 10:00 am.
From the brief of Disciplinary Counsel
The Master issued a report concluding that the evidence was insufficient to establish that respondent committed any of the alleged misconduct. Disciplinary counsel disagree with virtually all of the Master’s significant findings. The Master’s report accepted many of respondent’s arguments with little or no analysis and simply ignored the extensive evidence that supported the allegations and contradicted respondent’s claims. The report omitted essential context of transcript it cited and made basic factual and logical errors.
The Commission should reject the Master’s findings of fact and conclusions of law and find the misconduct alleged in each count of the complaint was established.
Relief sought
The misconduct established by a preponderance of the evidence includes that respondent made false statements to the Commission, misled judges before whom he was litigating, and violated his ethical obligations as a lawyer and prosecutor. Respondent committed the misconduct over the course of three years as a prosecutor with the Attorney General’s office, then continued with his false statements to the Commission during the investigation and while he was a judge. For the reasons stated below, disciplinary counsel believe the appropriate sanction is to remove respondent from the bench.
The judge’s counsel takes a contrary view
The evidence is clear that Paul Cusick faithfully executed his duties and responsibilities as an Assistant Attorney General and as Judge. He was truthful throughout this years-long process.
Regarding the McCully case, Cusick made clear in his notes to the Attorney General case file, in all correspondence, and within every court record that there would be absolutely no promises and no agreement in exchange for McCully’s work as a CI. The Kastigar letter, signed by McCully and his attorney Fishman, contained express acknowledgements confirming the basis of the plea two months earlier that there was not and would not be such an agreement. Yet, Sgt. Calleja just days later unilaterally wrote down a completely different statement on McCully’s CI source card – which Cusick never saw.
Despite an incontrovertible record that shows no agreement with anyone, Disciplinary Counsel’s theory was that an agreement was made with McCully and then another made with Loggie for McCully’s sentencing benefit. This is inane.
While Disciplinary Counsel was able to inveigle various persons during ex-parte interviews into signing statements that there was “an exchange” or “deal” during the investigation, those witnesses all corrected this false notion by the time of the hearing. Even Sgt. Calleja admitted in his testimony that there was “no deal”. Fishman expressly rejected the fabricated idea of an “exchange”. And, as she always has insisted, Loggie confirmed there was no agreement in her testimony.
As made crystal clear during the proceedings, Cusick always followed office policy whenever there was an agreement with a defendant or witness. That policy was to seek written authorization for and to document the scope and extent of any such agreement and to have that confirmed in writing by the witness/ defendant and their counsel. There was no agreement with McCully or Loggie. None. Still Disciplinary Counsel tried to manufacture an agreement that never existed.
[Defense counsel in the underlying case] Komorn admitted that he knew Loggie was a CI with signed documentation and purposely and strategically did not ask for that documentation. It is uncontested that neither CI source card was ever in Cusick’s possession. Cusick did not withhold any information from Komorn. And Ms. Collins and the AG’s office had access to all of the information Cusick was given.
A process of answering nearly 1000 questions in various forms during the Disciplinary Counsel’s investigation was complicated by the lapse of time but made completely unfair when Disciplinary Counsel withheld material exculpatory
information. This omission made all the more fundamentally unfair when Disciplinary Counsel deceived key witnesses by withholding that same critical information from them. Those witnesses would later repudiate portions of the ex parte statements prepared by Disciplinary Counsel after learning the facts and circumstances purposely misrepresented and hidden from them by Disciplinary Counsel.
Cusick’s answers to the letters and pleadings contain his best recollection regarding cases from many years ago. At trial, testimony and documents corroborated the answers. One key fact established is that Loggie’s involvement was in no way contingent on McCully receiving a benefit. Cusick insisted this was true during the investigation. Fishman confirmed this in his testimony. Judge Groner’s statements from the plea and sentencing matched the testimony of Fishman and Cusick. And no witness testified that it was contingent, or that McCully received a benefit.
(Mike Frisch)