Fraser Trebilcock attorney and retired Ingham County Judge Peter D. Houk has issued his findings of fact on remand against Washtenaw County district court Judge J. Cedric Simpson.
You can read the findings of fact in its entirety below or view as a PDF by clicking the following link: Houk Findings of Fact on Remand
STATE OF MICHIGAN
BEFORE THE MICHIGAN JUDICIAL TENURE COMMISSION
Hon. J. Cedric Simpson
14-A District Court
415 W. Michigan Avenue
Ypsilanti, Michigan 48202
Formal Complaint No. 96
Hon Cedric Simpson on Remand
Paul J. Fischer (P35454)
3034 W. Grand Boulevard
Detroit, Michigan 48202
Kenneth M. Mogill (P17865)
Attorney for Respondent
27 E. Flint St.
Lake Orion, MI 48362
This matter was remanded to the Judicial Tenure Commission (“JTC”) by the Supreme Court “for further proceedings … [to] consider the information that the respondent has obtained and that was in the possession of the JTC Examiner before the hearing in this matter, but was not made available to the respondent for inspection or copying …“ The JTC was instructed to issue a new decision and recommendation if it finds it appropriate. The newly discovered evidence that is pertinent to the claims advanced here are centered around approximately two dozen c-mails that were written by and between various police officials; exchanges between Chief Harshberger and Chief Judge Tabbey; and between Chief Harshbergcr and Township Attorney Lillich, the initial prosecuting authority in the arrest of Crystal Vargas.
The Judicial Tenure Commission considered the previously undisclosed material. The JTC remanded the matter to the Master “for a determination of whether the evidence would alter his findings in this matter.” The Commission further remanded the matter “for a determination of how the non-disclosure occurred and the reasons for the non-disclosure.” These three questions will be addressed seriatim.
FINDINGS OF FACT
Associate Examiner, Margaret Rynier, filed a freedom of information request with the Pittsfield Police Department on September 17, 2014, requesting a copy of any and all documents, including c-mails, in the possession of the Pittsfield Police Department and or Chief Matthew Harshberger, pertaining to the arrest of Crystal Marie Vargas.” Township Attorney Fink replied on October 15, 2014, via e-mail. (Ex120) The subject line of the e-mail was blank, but below it, the Attachment line noted “rynicr.pdf” The text of the e-mail says in its entirety, “Please see attached documents. I have not included documents subject to attorney client privilege or deliberative communications.” Neither Judge Simpson nor Crystal Marie Vargas is referenced in the communication. The Master finds that Ms. Rynier should have been aware of its contents because of its origin, and the e-mail chain to which it was attached. Further, Ms. Rynier accessed the e-mail a week later on October 22 to send an e-mail to Mr. Fink; giving her another opportunity to see the communication. (Ex 122)
This communication was received and in the possession of the Examiner. It was not provided to Respondent’s counsel when he requested it.
Ms. Reynier asserts that the failure to open the e-mail was a result of negligence on her part in not realizing what it was, and because she thought she had already received all of the pertinent documents, but in violation of the department’s policy to require a Freedom of Information request. (Remand Tr. 26). The Master finds this a credible explanation for the reasons discussed below regarding Findings Reviewed.
INTERFERENCE WITH A POLICE INVESTIGATION
After the March 2015 hearing in this matter the Master found that:
Respondent’s appearance at the accident scene, his self-introduction as a judge, his involvement beyond assuring himself of Ms. Vargas’ safety and his subsequent offer to give her a ride prove beyond a preponderance that Respondent interfered with the police investigation.
Respondent asserts that Exhibits 133 through 136 demonstrate that the police department, including Chief Harshberger believed that arresting Officer Cole had done everything by the numbers and that hence the Respondent could not be guilty of interfering with the police investigation. Indeed, the c-mails do reflect that the officers believed that Officer Cole acted appropriately. That however, doesn’t excuse Respondent’s conduct that was detailed in the Master’s findings. Nor do the c-mails cast a favorable light on Respondent’s conduct. Exhibit 134, not previously considered by the Master, is pertinent because it shows how concerned the victim party to the crash was that he might not get a fair result because “the judge showed up.”
INTERFERENCE WITH THE PROSECUTION
Respondent Argues that Judge Tabbey’s involvement actually sped up the issuance of the complaint and warrant for the arrest of Crystal Vargas and thus Respondent could not have been responsible for delaying the arrest. See Remand transcript p. 176. Again, there is a confusion of whose conduct is in question. It is not the conduct of Judge Tabbey, who was not called, or Chief Harshberger, but rather Respondent. It is like a batter saying, “Coach, not my fault I missed the ball; he threw a strike.”
Additionally the Respondent ignores the Master’s findings that he interfered as demonstrated by Attorney Lillich testifying that:
“I would be glad to just sit on this or hold this thing until the attorney gets involved and then talk to the attorney about the about the problems with the case if there are problems with the case. “Findings of Fact P.6.
Respondent further ignores the findings that concerning Respondent’s offering that the defendant was a “good kid;” and the discussion of potential defense attorneys for her and potential defenses.
Nothing in the exchange of c-mails between Chief Harshberger and Judge Tabbey affect these findings which I find to be an interference with the prosecution.
Nothing in the undisclosed e-mails relates to the misrepresentations dealt within Count III. Counsel for Respondent argues that since he, the Master, was misled on Counts I and II, that a different decision would have been reached on Count III. Counsel asserts that the Master would have evaluated Respondent’s credibility differently. This argument fails simply because nothing in the e-mail chain causes the Master to reexamine his assessment of the facts previously found.
HOW THE NON-DISCLOSURE OCCURRED AND THE REASONS FOR THE NON- DISCLOSURE
As stated in the first section on findings, the Master finds the explanation of Ms. Reynier that she was negligent, to be credible. She overlooked an e-mail that contained information that she thought she had already obtained from another source. Arrayed against her testimony is an unsubstantiated charge that the Examiner and his office is a racist. This is predicated upon the pendency in federal court of a four year old ease where the allegation has been made that the Examiner treats black judges less favorably than white judges. Counsel also urges that the Examiner did not disclose the c-mails because they would show that Judge Tabbey was involved, and he received more favorable treatment from the Judicial Tenure Commission than the Examiner was seeking for Respondent. The argument ignores the fact that punishment is imposed on errant judges by the JTC and not the Examiner. Moreover; without any supporting evidence, counsel urges the Master to find that the Examiner’s actions are racially motivated and that there was an inherent agreement between the Examiner and his associate to withhold evidence from Respondent based on his race. The argument does not pass the test of Occam’s Razor that, the simplest of competing theories be preferred to the more complex.” Webster’s New Collegiate Dictionary 1980.
PENDING MOTION TO REOPEN PROOFS
The after proofs closed in this matter, Respondent submitted a motion to reopen proofs to receive a phone log from Mr. Fink that would clear up a dispute as to whether Mr. Fink called Ms. Reynier on October 9, 2015. This is clearly a collateral issue. Moreover, it is one that should have been dealt with at the hearing. Regardless, one need look no farther than Mr. Fink’s testimony:
Q. So now you’re sure that you didn’t talk to me, or is it your recall that you did not talk to me?
A. Well, I would not — given the nature of this ease, I would not say a hundred percent sure. I think people have made mistakes in reporting things. I will tell you that I have no recollection of talking to you. I don’t believe I talked to you, and the only way that I would be led to believe I talked to you is if there was a phone record that showed that your number and my number were on the same phone call.
Q. And you don’t have that?
A. I don’t have it. I don’t think it exists.
A record that from the witness’ cell phone that shows no phone call does not preclude a call from another phone and at best is tangential to this matter for the reason that the witness expressed, “I think people have made mistakes in reporting things.”
The Motion is DENIED.
Signed by Peter D. Houk on March 7, 2016