Truth, Justice, and . . . Aw, the Hell with It

The law favors trying criminal defendants together in a single trial.  After all, why should the government have to bring in the witnesses twice (or thrice or fivce) and have multiple juries and let the second defendant know what all the evidence should be?  It's so much more sufficient just to do it all in one shot.

Besides, it makes it easier to suggest to the jury a form of guilt by association.  They're all sitting there together now.  Just as they were then.  You know this one did it.  Surely the others did too.  Look at them all there together.

It's nasty and a legally improper inference to suggest.  But it's real.

Defendants, of course, can ask the judge to give them separate trials, but as I say, the law favors putting them all together, so the answer is usually some variation on "No, Asshole.  You did this together, you'll be tried together."  (Generally the judge is smart enough not to put it that way, but you'd be surprised about what sometimes shows up in a court record.)

One basis on which the court is supposed to grant a request for separate trials is if the various defenses are irreconcilable.  You know, like this.

DEFENDANT A:  It was B who stabbed and tried to rape her.  I was just passing by on my bicycle at the time.  I stopped to help.  That's when I picked up the gun B dropped and got covered with her blood while I was trying to pull her pants back up.
DEFENDANT B: You lying fuck.  I didn't stab & rape her.  You did.  I saw the whole thing.  I was walking by and scared you away. Then I did all the things you just said.  The only part of what you said was true is that you were on a bicycle.  The rest is just bullshit lies.

See, that's too hard for the jury.  There's just too strong a chance that they might believe one of the folks and not convict both.  Besides, it gets messy when they each try to testify and get mucked up with their Fifth Amendment rights against self incrimination.

All of which, in a clumsy sort of way, brings us to Detroit and the forthcoming trial of Mary Waterson, Robert McArthur, Scott Rechtzigel, and Karen Plants.  Make that trials.  The judge just separated out Waterson's case because her defense is irreconcilable with the others on corruption and perjury and who knows what all else charges.

You may remember these folks from a post back in October. If not, and if you're too lazy to go back and read it, here's the short version.

Judge Mary Waterson (now retired, perhaps forcibly), was presiding over the trial of a guy who was busted with some 100 pounds of cocaine.  McArthur and Rechtzigel were cops on the case.  Plants was then the chief narcotics prosecutor for Wayne County, Michigan.  Chad Povish was the paid confidential informant who testified and denied that he was an informant.  And Rechtzigel testified that he didn't know Povish before the bust.  Povish got pissed and went public when he didn't get paid what he thought was due ($100,000).

Except for the informant going public, that stuff happens all the time.  What doesn't ordinarily happen, and what nobody seems to dispute happened in this case, is that Plants told Waterson that Povish was a CI and . . . . Well, that's where the irreconcilable defenses come in. From today's Detroit Free Press:

Presiding Judge Timothy Kenny of Wayne County Circuit Court ruled Friday that Waterstone and the others -- former top Wayne County drug prosecutor Karen Plants and ex-Inkster narcotics detectives Scott Rechtzigel and Robert McArthur -- have "mutually irreconcilable defenses."
Kenny said that Waterstone's defense to official misconduct charges will be that the others urged her to approve perjured testimony that hid the prosecution's star witness' role as a secret paid police informant in a 47-kilo cocaine deal. At least two, and possibly all of the others, will claim their actions had Waterstone's blessing as the trial judge.

I wondered if I was reading that right until I read further in to the article to get the actual word from Waterstone's lawyer.

He said that Waterstone's rulings allowing perjured testimony and kept secret from defense lawyers and the jury -- as wrong as they were -- do not meet the definition of official misconduct.
"The issue is whether she did anything with corrupt purposes," Evelyn said. "Her conduct was well-intentioned and in good faith."

Glad we got that cleared up.  

So, Waterstone's defense is that she allowed the perjured testimony at the urging of the others but didn't actually say, "Good idea, folks," and didn't do it for financial profit but just to help the prosecutor get a conviction.  The others are saying that Waterstone not only allowed the perjury but said something encouraging like, "Good idea, let's do it."

That's about as subtle a bit of irreconcilability as I've seen in a long time.

But I need to go back here to Waterstone's defense, because it cuts at the heart of a disconnect between the criminal justice system and the public.

The claim is, apparently, not that Waterstone's behavior was right or noble.  (Unlike, say, Chip Babcock defending Sharon Keller.)  Rather, it's that a judge knowingly permitting perjury is clearly wrong but isn't a crime - or at least it isn't the crime charged.  It's a highly technical defense.  Maybe it's right.  Maybe it will work with the judge.  Maybe it will work with the jury.  Maybe that's the best he can do for the client.  But it smells bad to the public.

Those folks who want to believe, despite the evidence, that courts and cops are stalwart defenders of 

• Truth
• Justice
• The American Way

(Thank you, Superman.)

Those folks will say of Waterstone, and regardless of the ultimate verdict,

She's a fucking corrupt judge who should be locked up for a good long time.

And they'll be right.  Regardless of the verdict.

But many of those same folks will likely be glad they got that drug dealer convicted.  Whatever it took.

So maybe she's a hero, too.

Did I mention that the system is fucked up?

And so is the American public?