Sources: FBI reviewing secret recording from Novi judge's chambersMichael W. Martin in Detroit Free Press, March 24, 2014
With his docket already under scrutiny by a higher court, Novi District Judge Brian MacKenzie’s troubles may be deepening with the FBI now reviewing a case in which a drunken-driving suspect was Tasered by police and then later pressured to drop a related lawsuit, the Free Press has learned.
According to sources close to the case, the FBI has obtained a copy of an audio recording, made secretly in MacKenzie’s chambers four years ago, in which the judge can be heard telling defense attorney Timothy Corr to “give up the civil suit and I can get you something decent.”
Several legal experts, who either listened to the audio recording from MacKenzie’s chambers or reviewed a transcript of it, say what MacKenzie did was improper because judges are supposed to remain neutral.
“It’s the lawyer’s job to represent the client,” said professor Steven Lubet, who teaches legal ethics at Northwestern University. “A judge should not be taking sides and certainly lenient treatment in a sentence should not be dependent on giving up a civil right.”
Corr was representing a man contemplating suing police for civil rights violations after an officer Tasered him for no apparent reason, following a drunken-driving arrest.
Corr said he made the recording after a previous meeting in which he said the judge offered to waive jail time for his client, Marquin Stanley of Redford, if he agreed not to sue Walled Lake police.
Corr provided a copy of the secret audio recording to the Free Press. The FBI also sought and obtained a recording from Corr late last month, according to sources familiar with the inquiry.
Jeff Downey, supervisor of the Troy office of the FBI, told the Free Press he could neither confirm nor deny his office was investigating the handling of the Marquin Stanley case.
MacKenzie has denied any wrongdoing.
The tape is the latest in a string of troubles for MacKenzie.
Oakland County Circuit Judge Colleen O’Brien began supervising part of MacKenzie’s docket in February after prosecutors complained he was running a rogue court, handing down illegal sentences and making backroom deals with defense attorneys without notifying prosecutors.
O’Brien ruled that MacKenzie had violated the law in at least eight instances, including a domestic violence case that he dismissed without consulting the victim or prosecutor, then sealed in violation of state law.
He has also come under scrutiny for a nonprofit group he heads, a statewide organization of drug court professionals, which pays his wife almost $40,000 a year to work part-time from home. Corporate sponsors of the group include private drug and alcohol testing companies that MacKenzie routinely orders defendants to use.
Booking room video
The Free Press first reported on the Stanley case in February, after he contacted reporters and said MacKenzie had tried to force him to give up the police brutality suit in 2010. Stanley said MacKenzie jailed him when he refused to drop the lawsuit, which Corr eventually settled in federal court when police agreed to pay Stanley $150,000.
In the booking room video from January 2010, an officer can be seen Tasering Stanley from behind as he empties out his pockets, sending him crashing into a bench, then to the floor.
As Stanley convulses on the floor, the officer kicks him. Stanley required medical treatment for head and back injuries.
MacKenzie told the Free Press in February that he never pressured Corr or Stanley to drop the lawsuit. He also denied ever having conversations with Walled Lake police in his chambers over the Tasering or the pending police brutality suit.
Following MacKenzie’s public denial, Corr provided the audio recording to the Free Press. It records MacKenzie having a 14-minute discussion in chambers with Corr, Walled Lake police, and an Oakland County assistant prosecutor. At various times, the judge can be heard telling Corr to get Stanley to agree not to sue in exchange for his freedom.
“Give up the civil suit,” MacKenzie can be heard saying to Corr. “Give up the civil suit. Give up the civil suit and I can get you something decent.”
Later on the recording, MacKenzie said he wants the suit dropped to spare the police and city of Walled Lake the “hassle” and expense of a lawsuit, and offers to release Stanley from jail that day if he’ll agree. He consults with Walled Lake Police Detective Paul Schneider and Wixom Police Sgt. Shannon Luther, who were present in his chambers.
“This guy gave you trouble, right?” MacKenzie asks Schneider, referring to Stanley.
“Right,” Schneider said.
MacKenzie tells Corr, “The issue is whether they are going to go through the hassle of it, and whether the city of Walled Lake is going to have to put up with the cost of the attorney.
“The offer on the table is, if he agrees that he’s not going to sue the police department over the R&O, (resisting and obstructing) they are willing to dismiss the R&O. I think that’s a quite a good offer.”
At the time of the recording, Stanley was serving 93 days for violating probation.
“He can get out today,” MacKenzie says on tape.
Stanley and Corr refused the deal and Stanley remained jailed three more weeks.
The Free Press provided MacKenzie with a transcript of the recording.
MacKenzie would not answer questions attempting to reconcile his previous denials with the contents of the tape.
He did release a statement through his attorney, Louis Porter. The transcript makes clear “that Judge MacKenzie’s motivation in telling Mr. Stanley’s counsel that Mr. Stanley should consider agreeing to forego a potential civil suit was based on his desire to place Mr. Stanley in sobriety court,” Porter wrote. “Being placed in sobriety court would not only have allowed him to avoid further jail time on three new pending charges but would also would have given him to have a meaningful opportunity to achieve sobriety.”
Corr said he made the recording because he was stunned by MacKenzie’s conduct in a previous private in-chambers meeting during which MacKenzie did the same thing.
“I felt like I had to take this step because, how else to get to the truth of it?” Corr said. “Somebody has got to stand up for what’s right and that’s what I did here.”
The recording raises new questions not only about MacKenzie, but also police and an assistant prosecutor, Peter Menna, who were present when it was made. It also offers a look at the sometimes messy world of plea negotiations, which typically happen out of sight. And it is not clear what, if any, consequences MacKenzie might face.
Experts on civil rights violations and judicial ethics say that if MacKenzie was indeed lobbying on behalf of the city and police to avoid a lawsuit, he was violating judicial canons that dictate how judges behave.
“I think the judge’s pitching the prosecution’s offer is too close to the line for me,” said Michael Martin, a professor at Fordham Law School and an expert on judicial ethics and police brutality. “I think judges should avoid the appearance of partiality and err on relying on the defense lawyer to counsel the client properly without such a heavy judicial hand.”
Martin said it was not clear what the FBI might be pursuing in the case, but that MacKenzie has broad protections as a sitting judge.
“Judges generally have absolute immunity from civil liability when they act in a judicial capacity, even when their actions violate the constitution,” Martin said.
Martin also viewed the video of Stanley being Tasered.
“I am not privy to all of the circumstances, but there is no doubt that a reasonable jury could find, based on the video alone, that the Tasering was unreasonable given the victim does not appear to pose any immediate threat to the officers and the victim does not appear to be actively resisting arrest,” Martin said in an e-mail to the Free Press.
Video contradicts police
Oakland County Prosecutor Jessica Cooper said she decided early on that that Stanley would not face resisting and obstructing charges — a felony charge the police were seeking — after seeing the Taser video.
Yet, her assistant prosecutor, on the audio recording, appears to be siding with MacKenzie and police in urging Stanley to not sue in exchange for not facing felony resisting and obstructing charges.
“They (police) want to make sure ... if we’re going to get sued, we want to press this to the fullest extent, obviously, because we want ourselves protected and I can understand their position,” Menna can be heard on the recording, telling Corr in the hallway. “On the other hand, if we’re not going to get sued, we’re willing to work a deal with this guy.”
Menna declined to comment and referred questions to Cooper’s office. Cooper reviewed a transcript of the audio recording earlier this month and said she was disappointed in Menna, but chocked it up to inexperience.
“I was not pleased with some of the recorded statements of my young assistant prosecutor,” she said in a written response, noting that her office would never negotiate a criminal charge in an attempt to get a defendant to drop a civil suit. “But once again, he did as he was trained to do and brought it back to his supervisors who informed him that neither the police nor the office would pursue an additional charge of resisting and obstructing.”
And Cooper, a former circuit court and appellate judge had strong words for MacKenzie: “The black robe doesn’t vest someone with intelligence but it should vest them with humility and respect for the people who come before them,” she said.
For police, the video recording in the booking room directly contradicts their written reports, which stated that Stanley “squared off” and threatened Walled Lake Police Officer Jason Tront, prompting the Tasering.
Tront is no longer with Walled Lake police and didn’t respond to requests for an interview made to his new employer, Redford Township police. Detective Schneider retired from the department and didn’t respond to messages seeking comment.
Legal ethics experts said MacKenize’s conduct can make him appear to be an advocate for the police and the city of Walled Lake, a position that strikes at the integrity of the criminal justice system, the neutrality of the judge.
“In a plea bargain or any type of settlement, you don’t want the judge’s coercive authority involved. Then the judge become another prosecutor and you lose the neutrality of the court that is the whole basis of the criminal justice system,” said Peter Henning, a former federal prosecutor and law professor at Wayne State University, who listened to the tape and reviewed a transcript.
Henning said he doubted MacKenzie’s actions were illegal, but said the state’s Judicial Tenure Commission is likely to review them.
“The standard for judges is the appearance of impropriety,” Henning said.
Prosecutors have declined to say whether they have complained to the Judicial Tenure Commission about MacKenzie. Investigations by the commission are not public record until a formal complaint is filed.
Judges often encourage settlement of cases, sometimes by pushing, said professor Charles Gardner Geyh, an ethics expert at Indiana University Law School.
“The judge may think in this case, cooperation means dropping your beef with them and we’ll drop our beef with you,” he said. “It’s not a slam dunk. I’m not willing to say it’s obviously wrong, but it makes me very uneasy.”
Geyh said that judges are obligated to always conduct themselves in a way that promotes confidence in the integrity of the judiciary.
The first paragraph of the Michigan Code of Judicial Conduct notes that judges “should personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved.”