Tuesday, March 02, 2010

There's Optimism For You....

One of former Detroit Mayor Kwame Kilpatrick's lawyers is optimistic about a recent Court of Appeals ruling:
Hajji today said the Court of Appeals order means they are taking his appeal seriously.

“I think it’s very favorable to me,” he said. “They are looking at this with the eyes of a microscope from what I can see and they are not taking it lightly.”
I do agree with this much: the Court of Appeals does appear to be taking a very careful look at the case. Were it not a high profile case, they may well have passed on providing further review and issuing a stay of proceedings. But favorable? You don't ordinarily see two judges adding written opinions to a simple order of the court. From Judge Murray:
However, I respectfully dissent from this Court's sua sponte1 decision to stay the lower court proceedings. Defendant has failed to argue the full requisite criteria for the granting of a stay... and has only argued that the trial court erred in several respects. However, other than raising one potential legal error regarding use of Mrs. Kilpatrick's personal funds to pay towards the restitution order, see MCL 557.21(1), an issue which was presented to the Court last year in a prior application that was denied... defendant has not in my view raised any other legal errors committed by the trial court that would warrant a stay.
From Judge Hood:
I write separately to express my disay at the abject nature of the pleadings filed on behalf of defendant. This Court is an error correcting court... and we are bound by the proceedings held in the lower court. Therefore, the litigants are required to present the transcripts of any proceedings and any ordere entered by the lower court for appellate review. MCR 7.210(A).... Our review is limited to the record created in the lower court.... The motion and brief filed by defendant requesting reconsideration of a stay does not contain any citation to legal authority or the lower court record, contrary to the court rules, but rather contains a narrative one-sided view of the proceedings. Indeed, the court rules provide that pleadings that do not conform to the court rules may be stricken....

In this case, defendant's filing is unconscionable and does not merit serious consideration in light of the nature of the filing.
Judge hood indicated that she would not strike the defendant's pleadings, despite their being "grossly noncompliant and inappropriate", and would join a second judge in granting the stay, in the name of "judicial economy". I suspect in a case that was lower in profile, the Court's action in the name of judicial economy would involve denying a stay, striking the defendant's filing and dismissing the appeal.

I'm still puzzling over Kwame Kilpatrick's legal team. He seems to show up in court with a succession of high priced lawyers, but goes to the Court of Appeals with a lawyer who appears to have very little appellate experience. A bit more about the motion to the Court of Appeals:
Kilpatrick's attorney, Daniel Hajji, made the claim in an impassioned 14-page motion filed with the state Court of Appeals late Tuesday in an effort to postpone the ex-Detroit mayor's Friday probation-violation hearing in circuit court - one that could eventually land him behind bars.

Wayne County Circuit Judge David Groner will arraign Kilpatrick for failing to pay $79,011 toward the $1 million he owes in restitution by last Friday's deadline. Kilpatrick and his lawyers say he doesn't have the money, despite his plush lifestyle in a tony Dallas suburb and $120,000-a-year sales job for Covisint, a Compuware subsidiary.

"The clientele he must establish a rapport with are likely to be the privileged and the affluent," Hajji said in the motion. "Burgers and beer at the local bar is not going to be sufficient."
This, apparently, means that Kilpatrick must spend his entire take-home pay to rent a lavish mansion... except he doesn't, as the money to rent his mansion falls like manna from heaven.
[In a court hearing] on what should have been fairly ordinary matters, with questions like, Does your wife leave the house each morning to go to work? Shockingly, Kilpatrick said he didn't know. Groner then asked, "Who's paying the rent?" Kilpatrick responded with a simple, "Um," and then looked to his attorneys, Michael Schwartz and Daniel Hajji. "I assume my wife is paying the rent ... because I'm not."
Yeah, right. And wow, for an employer who hired a felon fresh out of jail, Compuware sure is generous:
Perhaps the most surprising revelation during last month's hearing was that four of Michigan's wealthiest men — including Compuware CEO Peter Karmanos Jr., auto retailer Roger Penske and Quicken Loans chairman Dan Gilbert — had given a total of nearly $240,000 in loans to Kilpatrick's family around the time he left prison. Precisely how the money was used is unclear. The executives swiftly issued statements nearly identical in tone to explain their actions. "We were concerned about the city's inability to move forward due to the situation and circumstances that had surrounded Mayor Kilpatrick and his administration," Gilbert's statement read. The statement of Karmanos, Kilpatrick's boss, read: "We wanted to help care for his family until he could get back on his feet. At this time the loans remain outstanding."
And they say it's hard to get a job with a record, no experience, and no apparent qualifications other than your mother's being a sitting Member of Congress. Oh, yeah. I guess that last bit helps.

Back to the motion:
"The trial court appears to infer that it wants Mr. Kilpatrick to live a middle-class existence, when such an existence is inconsistent with earning a sufficient amount to fulfill his restitution obligation.

"Mr. Kilpatrick is going to have to function in the upper echelons of society."

Kilpatrick works as a sales representative for Covisint, a subsidiary of Detroit-based Compuware. He has a base salary of $120,000, but could earn substantially more through commissions. Compuware officials could not be reached for comment Tuesday evening.
A sales position with a base salary of $120,000 (plus an extra $60K as a draw against future commissions, plus a quarter-million dollar loan), where the employee is expected to live the life of Riley? Well, then, Kilpatrick must be making an impressive number of sales to merit that substantial base salary, to be augmented by commissions that could float his lifestyle?
Kilpatrick works as a sales representative for Covisint, a subsidiary of Detroit-based Compuware. He has a base salary of $120,000, but could earn substantially more through commissions. Compuware officials could not be reached for comment Tuesday evening.
So... it would appear that as commissions go we're still in the world of the hypothetical. That is, it doesn't look like Kilpatrick has landed a single sale. Yet the manna from heaven keeps pouring down:
During a hearing Tuesday over Kilpatrick's failure to pay, Beverly Smith, area manager for the Michigan Department of Corrections, gave Groner a draft report outlining the department's assertion that Kilpatrick violated his probation by failing to make the full $79,011 payment by Friday.

However, payments for the former mayor came in through 57 money orders totaling $14,048 on Friday and 17 money orders totaling $21,125 on Monday. The money came from unidentified payees.
Lucky man.
After the hearing, Michael Alan Schwartz, one of Kilpatrick's lawyers, said the violation hearing will not become a gimme for prosecutors: "You got to have due process ... and I'm going to hold them to their proofs."

He also said that some of Kilpatrick's payments could have been donations from "warm-hearted people" who wanted to help out.
Michael Schwartz is still on Kilpatrick's legal team. Michael Schwartz is an experienced appellate practitioner. And yet the appeal was filed (in, by Judge Hood's measure, atrocious form) by a junior member of the team with little appellate experience? I assume I'm not the only one who finds that to be a bit fishy.
1. When a court grants relief "sua sponte" it does so on its own initiative, without the request of a party.


  1. "fishy" is one word for this situation. In addition to the points which you raised, I would direct your attention to the following:

    1) Aaron is far more experienced in the ways of the appellate court than I, but does it strike anybody else out there as odd that a judge would write, "In this case, defendant's filing is unconscionable and does not merit serious consideration in light of the nature of the filing . . . " but then rule in defendant's favor and give unrequested relief in addition?

    2) According to defendant's testimony at the last hearing he has made no sales to date - but maintains his job and life style.

    3) The $240K involved in the "loan" was conveyed months before the paperwork for the loan was drafted . . . actually the paperwork for the loan wasn't drafted until after investigators asked for proof that it was a loan and not a gift . . .

    4) According to the Government, in the past year over seven hundred thousand dollars has flowed through the defendant's family accounts, most with no verifiable legitimate source. (. . . and none of it reported to the court as required.)

    5) Defense counsel's theory of the case (as stated by counsel) is that the Government has proved that he had the money and spent it, but not that he "currently" has enough money to make payments. Since you can't jail someone unless they have the "current" ability to make payments the several hundred thousand dollars in question don't count . . . besides, he gave most of the money to his wife, and you can't force her to pay for his crimes . . . (an argument that would carry a lot more weight if we were talking about money she inherited or earned as opposed to having been given by him after the court order was in place . . . )

    6) To the best of my knowledge, no one has ever adequately explained who/how the rent is being handled at the defendant's million dollar home. (Your salary goes a lot farther when someone else is paying all of your costs of living . . .)

    7) Defendant has failed to follow a numer of other court orders (in addition to failing to report income) such as: failing to convert assets, failing to turn over government pension, failing to turn over income tax refund, etc

    I'm inclined to think that if this case involved "John Doe" and not a former mayor with a politically connected family, things would be getting handled a lot more "directly".


  2. I'm taking a "wait and see" attitude with the Court of Appeals. The panel is giving Kilpatrick considerble latitude in his appellate filing, but their goal may be to slap him down hard and then force him to deal with the law of the case in his future lower court proceedings.

  3. This is starting to sound like our conversations about TARP and the rest of the bail out (maybe they are acting in good faith. . .) I hope you are right, but . . .


  4. Judge Gene Schnelz used to say that the trial court was where the battle took place, the Court of Appeals bayonets the wounded, and the Supreme Court counts the bodies. You may think I'm not being cynical enough here, but....

  5. Looks like I was wrong. The court ruled quickly and, it appears, correctly.


  6. Point to Schnelz. Unless we're talking about the point of the bayonet, in which case point to Kilpatrick.


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