Judge Charged With Allowing Perjury Argues For Immunity From Prosecution

Ideally, trial judges are neutral and unbiased. Their job is to apply the law as best they can, without favoritism, to assure both parties in the case before them of a fair trial. In our less than ideal criminal justice system, it is nonetheless easy to find judges who favor the prosecution in subtle and sometimes not-so-subtle ways.

Fortunately, it is rare to find a judge who is willing to violate the law to help the prosecution. It is still more rare for a judge to be charged with a crime for her judicial misconduct. Felony charges filed against Mary Waterstone, formerly a judge in Wayne County, Michigan, raise serious questions about when, if ever, a judge is above the law.

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Alexander Aceval was charged with conspiring to deliver cocaine. A key prosecution witness at his trial, Chad Povish, testified that he had no idea that duffel bags Aceval had placed in his car contained cocaine. Povish, who was never charged, denied under oath that he had made any deal with the police concerning his nonprosecution or his testimony against Aceval. In fact, Povish was working as a police informant in exchange for an agreement to give him 10 percent of any assets that Aceval was required to forfeit to the government. In two secret meetings, the prosecutor informed Judge Waterstone that Povish and a police officer had lied during their trial testimony, and that another officer had lied during a pretrial hearing. Although no evidence supported her concern, Waterstone agreed with the prosecutor that Povish's life would be at risk if the truth were revealed. Instead of declaring a mistrial or informing the jury that the prosecution's witnesses had lied to them, she let the perjury stand.

Aceval's trial ended with a hung jury. Before his retrial, Aceval hired an excellent lawyer, David Moffitt, who learned of the secret meetings after the prosecution admitted that Povish was indeed acting as a paid police informant.

Based on that information, the defense asked Judge Waterstone to remove herself from the case, alleging that she allowed the jury to receive testimony she knew to be false. Saying from the bench that it was the defense that acted inappropriately by trying to uncover the name of the confidential informant, and claiming that she had no role in suborning perjury and remained unbiased, Waterstone nonetheless acceded to Moffitt's request that she remove herself from the case.

It is astonishing that a judge would blame a defense lawyer for attempting to learn the truth -- a truth the prosecution had a duty to disclose and that the defendant had a constitutional right to know. It is even more astonishing that a judge would conspire with a prosecutor to conceal a violation of that right, placing a defendant at risk of being convicted on the basis of perjured testimony. For that judge to claim to be unbiased is more than astonishing; it is sickening.

The officers, the prosecutor, and Waterstone all testified during Aceval's second trial, which ended after Aceval (who was facing life) entered into a plea agreement that has him serving a sentence of 10 to 15 years. Waterstone had the bad grace to claim that the guilty plea was a "vindication" of the decision to permit the first jury to consider uncorrected perjured testimony.

Moffitt complained to disciplinary authorities that the Wayne County District Attorney's office chose not to charge the judge, prosecutor, or officers with crimes to enhance their credibility as witnesses against Aceval during his second trial. Disciplinary authorities subsequently commenced a disciplinary proceeding against the prosecutor. Moffitt has also appealed Aceval's conviction on the ground that the second trial should have been barred because the first trial ended with a hung jury only because the jurors never learned of the perjured testimony. Michigan's appellate courts have so far rejected that argument.

The perjury occurred in 2005. A couple of months ago, state Attorney General Mike Cox filed charges against the prosecutor and the two cops. He also charged Waterstone with four felonies, including concealing perjured testimony.

This week, Waterstone's attorney filed a motion to dismiss (pdf) the charges on the ground that a judge's rulings during a trial, even if wrong, cannot be the basis for a criminal prosecution. That argument would have merit under most circumstances. If a judge could be prosecuted for getting the law wrong, nearly all judges would be criminals. Judges have immunity from civil liability for decisions they make from the bench, and Waterstone's lawyers argue that the policy underlying immunity -- protecting judicial independence -- should apply to criminal prosecutions that are based on a judge's judicial rulings.

But Waterstone didn't just make a bad ruling; she conspired with a prosecutor who suborned perjury to conceal the perjury, and in the process assured the violation of Aceval's due process right to a fair trial and to the disclosure of exculpatory evidence. That she wore a robe while doing so should not excuse her criminal conduct. The integrity of the criminal justice system depends upon lawyers and judges playing by the rules -- particularly rules that prohibit the knowing submission of untruthful testimony to juries. If anything, it is more detrimental to justice for a judge, whose duty is to remain impartial, to conspire to suborn perjury than it is for a lawyer, whose job is to act as an advocate.

The public is generally distrustful of lawyers, but they look to judges as keepers of the truth. While that faith is often misplaced, it is nonetheless crucial to the perceived legitimacy of the judicial system. If the charges against Waterstone are dismissed simply because she acted as a judge when she committed her crimes, there will be no one left to trust in the criminal justice system.

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  • Display: Sort:
    Although I've certainly encountered (none / 0) (#1)
    by oculus on Wed May 13, 2009 at 04:51:58 PM EST
    trial judges who favored criminal defendants, haven't you?

    In our less than ideal criminal justice system, it is nonetheless easy to find judges who favor the prosecution in subtle and sometimes not-so-subtle ways.

    Three state court judges here were prosecuted and convicted in federal district court.  An additional judge pleaded guilty.  None were immune and some of the allegations dealt with their decisions on the bench.

    Even before the perjury (none / 0) (#2)
    by Bemused on Wed May 13, 2009 at 05:30:17 PM EST
     you have the issue of Brady/Giglio disclosures being required.

      If the CI/witness  is in danger, then the authorities should protrct him.
        It's incredible that in Detroit you can try a  person,  withhold constitutionally mandated discovery, deprive the defendant of his right to confront his accuser and suborn perjury all with the blessing of the judge.

     That said, the judge has a decent argument that Michigan law does not include a specific statute covering her conduct and that the official misconduct statute under which she is charged fails to put a person on notice this specific conduct is criminal.

    It certainly seems that the Judge in Libby MT (none / 0) (#3)
    by tokin librul on Wed May 13, 2009 at 05:34:40 PM EST
    was pretty totally in the bag for JR Grace, Inc...

    Democracy Now had an interesting report the other day, on the event of the jury acquitting Grace, Inc...