Monday, October 18, 2010

What is Truth, Anyway? And Who Really Cares About It?

The shocking thing isn't, sadly, that it (apparently) happened. 
It was back in 2004 or 2005.  The cops made a bust.  They apparently got around 100 pounds of cocaine.  The defendant went to trial in Wayne County Circuit Court (that's Detroit), got a hung jury, later took a plea and is in prison until at least 2015.
What?  Oh, no.  That's not the story I wanted to tell.  That's the framework on which hangs a tale.
You see, there was an informant, one Chad Povish.  He thought he was going to get $100,000 for his work.  (You think these guys do it because they've seen some moral light and want to cooperate out of the goodness of their pure intentions?)  Then the cops (Officer Robert McArthur and Sergeant Scott Rechtzigel) told him to lie on the witness stand and deny that he was an informant.  The prosecutor, Karen Plants, head of the prosecutor's narcotics unit, told Povish to lie on the stand.  Then, for reasons that defy comprehension, Plants told Circuit Judge Mary Waterstone that she'd told Povish to lie on the stand.  It's for his own protection, Plants told Waterstone.
OK, you get to guess what happened next.  Here are some choices.
  1. Waterstone called defense counsel and reported the state's plan to suborn perjury.
  2. Waterstone told Plants to call defense counsel and report that she planned to suborn perjury.
  3. Waterstone called the legal ethics folk and reported that the chief narcotics prosecutor planned to suborn perjury.
  4. Waterstone announced that Povish wouldn't be allowed to testify at all.
  5. Waterstone said (I'm paraphrasing here), "Good idea.  I'll back you up on that.  The witness should lie."
If you didn't pick door number 5, you haven't been paying attention.
But, and here's where it gets interesting and how it happens that we know about this, Povish ratted them all out.  Because, after all, they paid him only $4,500 of the 100 grand he expected.  Serves 'em right, the cheapskates.  According to Ed White of AP, he's thinking of suing.
An ethics complaint is pending against Plants.  Waterstone received a reprimand and resigned from the bench (I'm told it was the price for the reprimand).
And now:  Trial to follow.  McArthur, Rechtzigel, Plants, and Waterstone all face criminal charges.  Last week, a judge refused to dismiss the charges.  Joe Swickard reported for the Detroit Free Press.
Detroit 36th District Court Judge David S. Robinson Jr. said the law told Waterstone that “the fundamental part of our job” was making sure perjury does not get to the jury.
“We do not condone, we do not permit, we do not conceal perjury,” Robinson said, in ordering Waterstone to stand trial on four counts of misconduct in office.
Of course, it's a long way from criminal charges and the prospect of a trial to actually getting convicted of a crime.  Swickard again.
Waterstone's lawyer Gerald Evelyn said, "Everybody makes mistakes and one was made today."

He said that questions of Waterstone's judgment and ethics are separate from the charges she faces.  "You can't substitute the criminal law for indignation," he said.

Again, he struck this theme. "Where did she knowingly breach the law?"
Ed White adds this line from Evelyn.
You make a mistaken call and now you're charged here with a crime. ... Mr. Povish's life was hanging in the balance.
And then there's Plants' lawyer, Ben Gonek who has a perfect handle on how the cops and prosecutors (and apparently Waterstone) view the world.  18 months ago, when the charges were first brought, Martha Nell wrote about it for ABA
"These charges are obscene," said attorney Ben Gonek, who represents Plants, outside the courtroom, the AP reports. "The defendant in the criminal case was a piece of garbage who was dealing poison in our community."
Ah, yes.  The bad guys are bad guys and we're not.  So whatever we do is right.  As I say, the shocking thing isn't that it (apparently) happened.  When that's your attitude, it's a given that it will.  And for those of us in the trenches . . . .
We know the cops and the snitches lie and that the prosecutors and the judges look the other way when they don't actually encourage the lies.
The shocking thing isn't that it (apparently) happened.
The shocking thing is that something might come of it.
But, frankly, don't hold your breath.  As Swickard said,
" At some point in the future, some jury or finder of fact may not choose to believe Mr. Povish at all," Robinson said.
Or believe but think that it's just fine.
Back in July, I got to ask whether Clarence Thomas would learn a lesson after police beat and tased his nephew for declining a hospital's request that he don a hospital gown.  I was pretty sure the answer would be no.
And now it's cops and a prosecutor and a judge (retired) who are sitting on the other side of the dock.
Sadly, I don't imagine they'll learn a lesson, either.
Except, perhaps, that they really can get away with this sort of shit.
Nothing shocking at all, I'm sorry to predict.


  1. I'm sorry -- do you have a problem with the fact that Waterstone & Plants have defense lawyers who zealously represent their interests and try to point out problems with the prosecution's case?

  2. Absolutely not. But they're not my clients, so I get to trash their defenses.

    More seriously, Evelyn's quotes raise serious issues of defense. Indignation should not be a basis for prosecution - even when I'm the one who's indignant. Mistakes aren't necessarily criminal. You have to (or should have to) have an appropriate mens rea - guilty mind.

    Gonek's comments are something else. It's not a defense (not a legal one, anyhow) and it shouldn't be, to say "The other guy was dangerous scum we had to get off the street."

  3. Judge Waterstone and Wayne County Prosecutors have been framing innocent suspects for years. The FBI and DOJ have in their possession ABSOLUTE evidence of this. She was accused of the EXACT same crime 10 years ago. This is a Dallas Innocence Project type case and everyone is trying to cover it up.

  4. Aw, man ... I was rootin' for number three.

    You can't do much about perjurious informants if judges knowingly suborn mendacity. That said, there's a lot of fodder for reformers on the subject of snitches. When in 2001 TX passed a requirement simply to corroborate (as with the accomplice witness rule) testimony by drug informants to secure a conviction, nearly 600 pending cases were dropped after the law took effect, including the fake-drug cases in the Dallas 'Sheetrock' scandal. Cases are still getting tossed on appeal thanks to that law.

    That's a lot of juice for not much squeeze, and there are many more reforms available for snitching, starting with documentation of CIs by cops, that would clean up the process a lot. Other than Alexandra Natapoff's book and blog, you don't see a lot of forward thinking on the subject.

  5. I had to read this one three times to get the players straight. So the question becomes: Is Chad Povish lying about being told to lie? Just who is it that lied about what? My own opinion, without reading too much about the case:
    Mary Waterstone, the Judge: It's very doubtful that any judge would be a part of this. After all, what's the motivation? I would need some severe convincing that the judge would be a willing participant. Like her confession, for instance, which we have if you believe the press.
    Karen Plants, the prosecutor: Maybe, maybe not. It's possible that Plants would pull something like this, but it isn't very likely. Again, it goes to motivation. Plants could simply not bring the case to trial if she didn't have the evidence to convict - it isn't like she gets paid by the case and there's a shortage of criminals. Of course, there's the judge's admission of guilt, so I guess Plants should prepare to be a guest of the State for a while.
    Officer Robert McArthur and Sergeant Scott Rechtzigel, cops involved in the case: Sure, I think these two are guilty as hell. Yes, I believe they told Povish to lie. See you in ten years, guys.

    I suppose that if the unsubstantiated testimony of Chad Povish is good enough to help convict Alexander Aceval in 2005, isn't it good enough to hang a judge, a prosecutor and two cops out to dry?

    Another question - does Ohio have a corroboration law like Texas?

  6. I have no personal knowledge, of course. But people in Michigan tell me that Waterstone is known for this sort of thing. Criminal defense lawyers generally aren't surprised that it happens. Frankly, this sort of thing happens all the time (though mostly, I think, without formal judicial approval.)

    And no, Ohio doesn't have such a corroboration law. Which is a shame.