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Somehow we missed the finale to an explosive case of prosecutorial misconduct out of Michigan when a federal judge vacated the 2006 conviction of Alexander Aceval for possession with intent to distribute more than 1,000 grams of cocaine in late September. Though the news story is a few weeks old, it is nonetheless worth highlighting since it involves not only fairly extreme misconduct on the part of the state, but some serious repercussions for the prosecutor involved.

U.S. District Judge Arthur Tarnow concluded  in his ruling on Aceval’s habeas corpus petition that the defendant should never have faced a retrial (during which he pled guilty) in the the case involving a 2005 drug bust because the state and the trial court’s misconduct was so egregious during Aceval’s first “sham” trial. Under the Double Jeopardy clause, a retrial is barred when “bad faith conduct by judge or prosecutor threatens harassment of an accused . . . so as to afford the prosecution a more favorable opportunity to convict the defendant.” Judge Tarnow concluded: “There can be no reasonable debate in this case but that the prosecutor and trial judge acted in bad faith by hiding from Petitioner the fact that the key prosecution witness was in fact a confidential informant who according to Justice Markman stood to profit by up to $100,000 from the prosecution.”

Here’s a summary of the misconduct from the Michigan Court of Appeals, quoted by Tarnow in his September 30 ruling:

“Before trial, defendant moved for the production of the identity of the CI. During an evidentiary hearing on June 17, 2005, defendant requested that the trial court, Judge Mary Waterstone, conduct an in camera interview of McArthur, the officer in charge of the investigation. The judge agreed, and in the conference it was revealed that McArthur and Rechtzigel knew that Povish was the CI. Further,the officer told the trial court that Povish was paid $100 for his services, plus “he was going to get ten percent, whatever we got.” The conference was sealed and the trial court denied defendant’s motion. Subsequently, defendant filed a motion to suppress certain evidence. During a hearing on September 6, 2005, Rechtzigel lied when he testified, in response to defense counsel’s questioning, that he had never had any contact with Povish before March 11, 2005. The prosecutor did not object. On September 8, 2005, in another sealed in camera conference between the judge and the prosecutor, the prosecutor admitted that she knew that Rechtzigel had knowingly committed perjury but stated that she “let the perjury happen” because “I thought an objection would telegraph who the CI is.” In response,the judge stated that she thought “it was appropriate for [the witness] to do that.” Further, the court added, “I think the CI is in grave danger. . . . I’m very concerned about his identity being found out.”

The matter went to trial on September 12, 2005. At trial, the prosecutor and the judge continued their efforts to protect the CI’s identity. Povish testified that he had never met Rechtzigel or McArthur before they stopped his vehicle on the day that he received the duffel bags and that neither had offered him a deal of any kind. He further testified that did not know what was in the duffel bags and that, until trial, he believed that he could be charged with a crime for his role in the incident. The prosecutor made no objection to this testimony. The prosecutor and the judge again indicated, in another sealed ex parte bench conference on September 19, 2005, that they knew Povish had perjured himself in order to conceal his identity. At the close of the trial, the jury was unable to reach a verdict and, thus, the trial court declared a mistrial.”

Clarence Walker at Stop the Drug War says the prosecutor and judge’s so-called fears for the confidential informant were unsubstantiated – not that they would justify their behavior anyway:

“Both [the prosecutor, Karen] Plants and Waterstone said they felt the informant’s life was in danger if he were exposed as the person who helped police take 47 kilos from the Mexican drug cartels. But there was never any testimony from a witness or police to substantiate those fears. The judge’s and prosecutor’s fears may or may not have been justified, but their actions trampled on the constitutional rights of the defendants.”

In summary, Plants knowingly allowed witnesses to deliver false testimony, conspired with the trial court to continue to allow the false testimony to be presented at trial, and failed to disclose the deal the state had made with its key witness.

The Michigan Attorney General responded to the revelations of Plants’ and Waterstone’s misconduct with force. He provided the confidential informant, Povish, with immunity from prosecution in exchange for his agreement to testify against the police, the prosecutor, and the judge. More from Walker:

“Judge Waterstone was charged with misconduct in office, a felony which carried five years in prison. Plants and the officers were charged with obstruction of justice and perjury, offenses punishable by life in prison. If convicted, Plants would fall from her prestigious position as head anti-drug prosecutor for the DA’s Office to being a criminal ringleader in what had been the biggest case of her drug-fighting career.”

In the end, the felony charges against Judge Waterstone, who retired after the case blew up, were all dropped. But she was reprimanded by the Michigan Judicial Tenure Commission. The two arresting police officers, Rechtzigel and McArthur, pleaded guilty to neglect of duty and were sentenced to 90 days in jail.

And in a rare outcome for unethical prosecutors, Plants was convicted of misconduct and sentenced to six months in prison. She was also disbarred.

Aceval’s attorney, David Moffitt, who was kicked off the case by the judge who oversaw the second trial, also fought for his former client on appeal. Moffit said of Tarnow’s ruling overturning Aceval’s conviction:

“This is an enormous decision in the criminal law community…We feel vindicated after seven years of litigation. To have a federal court declare us to be right on every point restores my faith in the justice system, although I remain profoundly disturbed over how long it took to obtain relief.”

Read Clarence Walker’s in-depth article on the case from 2012 at Stop the Drug War.

Read Judge Tarnow’s 29 page ruling here.


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