Supreme Court says judicial misconduct does not warrant reversal

The Michigan Supreme Court ruled it was unethical for an Allegan County judge and the Allegan County prosecutor to have off-the-record discussions during a trial, but the misconduct was not enough to reverse the conviction and re-try the case.

The divided ruling released Tuesday reflected the complexity of the unique set of circumstances and sometimes murky standards surrounding communications between lawyers and judges during litigation.

Judge Margaret Bakker and Allegan County Prosecutor Myrene Koch exchanged emails discussing the course of a criminal sexual conduct trial. The defendant, 28-year-old Daniel Loew, was convicted of assaulting a teenaged girl over a period of years and sentenced to at least 20 years in prison.

The e-mail communications between Bakker and Koch were revealed after a freedom of information act filing by the defense attorney, who then appealed the conviction.

Defense attorney Michael Villar said the decision is disappointing since the court agreed there was judicial misconduct.

“And then they went through some mental gymnastics to conclude that even though she violated the rules of ethics and she didn’t recuse herself, that somehow it wasn’t a constitutional violation,” he said. “So, I’m not sure what practical effect this is going to have on day-to-day litigation.”

Villar also challenged Koch for prosecutor in the last election and has filed to run against her again this year on the August Republican primary ballot.

Prosecutor Koch said she is relieved the Supreme Court has laid the controversy to rest.

“This was a difficult trial for the victim to have to testify at and I am thankful the conviction was affirmed, and we can move forward,” she said.

Bakker declined to comment on the decision.

The Supreme Court majority opinion, authored by Chief Justice Elizabeth Clement, did appear to hold open the possibility of sanctions for Bakker.

“The trial judge’s actions fell short of the high ethical standards that Michigan jurists are expected to uphold, and regrettably, her behavior has the potential to erode public confidence in the integrity of our justice system,” she wrote. “Still, the issue before us is not whether the trial judge should be sanctioned for her misconduct.”

The six other justices agreed in partial concurrences that outlined differences. Justice Richard Bernstein, while not disagreeing entirely with the others, issued a dissenting opinion.

“In this case, the trial judge communicated with the county prosecutor during the trial. In each communication, the trial judge highlighted what she believed to be flaws in the criminal investigation and, by extension, the presentation of the prosecution’s case,” he wrote. ”In turn, these communications could have altered how the prosecution decided to present those issues to the jury.”