Judge Walks On Misconduct Allegations
The Michigan Judicial Tenure Commission affirmed the dismissal of allegations brought against a judge charged with misconduct as a prosecutor
The Master issued a well-reasoned report with a legally sound conclusion based on competent evidence presented at the hearing.
The Commission recognizes that it reviews the entirety of the Master’s decision de novo. In re Chrzanowski, 465 Mich 468, 480-481; 636 NW2d 758 (2001). This de novo review would necessarily include the important credibility determinations made by the Master. But, here, having reviewed the entirety of the record, we conclude that the Master did not abuse its role in making the credibility determinations that he did. The Master concluded the testimony of several trial attorneys, each of whom had extensive experience prosecuting or defending drug trials with confidential informants (CI), was credible and we adopt those determinations.
There was a concurring/dissenting opinion
A majority of our fellow commissioners have adopted the Master’s analysis and conclusions, as articulated in the Master’s Report. We concur with our colleagues in their adoption of the Master’s Report, with one exception. We would find that Judge Cusick violated MRPC 3.3 during the preliminary examination held in the 35th District Court in the People v Joslin matter, and, accordingly, offer the following dissent.
Basis
In the instant case, a considerable amount of evidence indicates that, prior to the preliminary examination that occurred in the Joslin case, Judge Cusick was fully aware of the reasons for Brandy Loggie’s involvement as a confidential informant (CI).
Facts found in support of a violation
When a CI witness testifies, a prosecutor does not put a CI on the stand without knowing the reasons behind that witness’s confidential informant work. The reason for this is because all prosecuting attorneys know that the first questions out of the defense counsel’s mouth are going to be some variation of “why are you doing this work?” or “what benefit are you getting from providing the testimony that you have given?”
Only a new attorney would make the mistake of offering the testimony of a CI without knowing that witness’s motivation. Judge Cusick was not a new attorney at the time of the preliminary examination in the Joslin matter. Additionally, the stated reason offered by Loggie for providing the testimony that she did at the preliminary examination, i.e. that she was concerned about people being high and driving out of the dispensary parking lot, does not comport with the reasonable inferences drawn from the record. This CI was a person who was involved in a drug trafficking organization headed by her boyfriend. This was also a CI who was involved in the furtherance of that organization by transporting pounds of marijuana across state lines. This was the person who, at the preliminary examination, offered her moral compass as the reason for becoming a CI in the Joslin case.
In addition to common sense and everyday experience, we also consider the testimony of two witnesses from the Attorney General’s office, Dianna Collins and John Pallas. Collins’ testimony is noteworthy based on the actions that she took once she became aware of Loggie’s work through Sgt. Paul Calleja and when she realized that the information in her Joslin file had not been disclosed. Collins was so disturbed by it that she took immediate action to disclose and remedy the situation. Still further, Collins identified that the information as to the actual motive for Loggie’s work should have been disclosed on direct examination and, if not disclosed at that point, under the circumstances that developed here, should have been, consistent with MRPC 3.3, corrected and elaborated on during re-direct examination. Judge Cusick did neither of these things.
We would also note that we do not adopt Respondent’s view of the testimony of Detective Brian Zinser, the officer in charge of the Joslin investigation, related to letting Judge Cusick know of a discrepancy in Loggie’s testimony. That said, we also did not find Detective Zinser’s testimony reliable enough to confirm that Judge Cusick was notified of Loggie’s false testimony.
Also noteworthy, from the Attorney General’s standpoint, is John Pallas’s testimony. His testimony is important because it identifies that the Attorney General’s office, after review of the court record and its own internal records, made the decision not to defend the claim of failure to disclose and perpetration of falsity on the record.
Further noted is both the failure of the Master to discuss evidence and the futility of points made
Because the current system adopted by the Supreme Court does not allow for further appeal of the Commission’s decision in this matter, we recognize our dissent will not receive any further review. Because of that fact, we decline to comment on the factors set out in In re Brown, 461 Mich 1291, 1292-1293; 625 NW2d 744 (2000), as the same is now moot.
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