Lisa Roose-Church

Livingston Daily

A convicted murderer’s attorney is seeking to set aside that conviction based on circumstantial evidence that the trial judge had an affair with a lead witness.

Peter Van Hoek of the state’s appellate defender office is seeking to set aside Jerome Walter Kowalski’s conviction based on revelations in 53rd District Judge Theresa Brennan’s divorce proceedings that show the judge “was biased in favor of the prosecution during the (2013) trial, due to the personal relationship she had with … (then) Michigan State Police Detective Sgt. Sean Furlong.”

The pair admitted to an affair that they say began after the trial.

"(Kowalski) is hopeful, but at this point, we all are," Van Hoek said.

First, however, Van Hoek must ask Brennan to disqualify herself from hearing his motion. A hearing on that request is set for May 2. If she refuses, Van Hoek is expected to appeal to Chief Judge David Reader. A hearing to argue the motion would be set once it is determined which judge will preside.

It is possible all Livingston County’s judges could recuse themselves. If they do, the state’s Supreme Court Administrative Office (SCAO) would assign an out-of-county judge to hear Van Hoek’s motion.

Related:

Records: Judge made 37 calls to lead detective on murder case

Two years after Lansing firefighter's death, trial date set

Brennan did not immediately respond to a message sent late on Friday.

Prosecutor William Vailliencourt said his office will review the motion and "will file a response outlining our views at the appropriate time."

In court documents, Van Hoek accuses Brennan of failing to disclose her “close personal relationship with a major prosecution witness” and challenges her denial of a pretrial motion to recuse herself from hearing the trial as a result.

“There is no smoking gun, but there’s circumstantial evidence that is there to question whether (Brennan) was impartial,” Van Hoek said when reached for comment. “She should have disqualified herself in the beginning.

“I’m very disturbed by the fact that after (the trial attorney) made a motion to disqualify her, she would call (Furlong) during the trial. I would think she’d be careful not to have contact with him,” he added. “It looks bad.”

Specifically, Van Hoek notes that in depositions in Brennan's divorce proceedings, both the judge and Furlong admitted to an affair, which Brennan said began in late 2013, and Furlong said began in 2014. Both said the affair ended in 2015.

To support his position, Van Hoek's motion also notes:

Brennan and Furlong admit that, prior to 2013, they spent nights together at a cottage Brennan and her now-ex-husband owned in Holland, but they deny sexual activity occurred.

One witness testified Brennan admitted to romantically kissing Furlong in the courthouse in 2007. The witness said Furlong confirmed the kiss occurred.

Brennan claimed she spoke to Furlong possibly twice during the Kowalski trial and that she never disclosed that communication to the defense or to the prosecution. Brennan said in her deposition she felt the phone calls were not improper as long as they did not discuss the trial. Furlong initially denied phone conversations, but changed his testimony when Brennan reminded him they spoke and then he denied it again.

Telephone records show Brennan and Furlong had three phone calls, lasting a total of 35 minutes, during the trial, and a total of 37 phone calls between the start of the trial and Kowalski’s sentencing in March 2013. Most of the phone calls were initiated by Brennan, and a “number of those calls” were made during business hours when Van Hoek alleges Brennan’s court was presumably in session.

Brennan, who hears the county’s divorce-without-children cases, delayed recusing herself from hearing her own divorce, which led her now ex-husband’s attorney to file multiple motions to preserve electronic communications evidence on her phone as well as financial records. When Brennan failed to sign the recusal order in a timely manner, Reader sought help from SCAO.

A representative with SCAO informed Reader that Brennan indicated she signed the document and had it sent to the Howell courthouse on Dec. 7, but the document was missing from that day’s mail. The signed order arrived on Reader’s desk on Dec. 8 – four days after Reader initially prepared the recusal order.

That during the delay for Brennan’s recusal, Reader learned a deputy overheard Brennan seek advice on how to delete messages and data from her cell phone – despite knowing there were pending motions to preserve evidence, if any, of her affair with Furlong and a second man.

Van Hoek acknowledges that his client doesn't know the nature of the calls between Brennan and Furlong, but he said Brennan's actions violate the state's judicial canons, which state a judge "should avoid ... the appearance of impropriety in all activities" and they "should perform the duties of office impartially and diligently." That, he noted, includes secret phone calls with a lead witness.

Brennan also denied the motion of Kowalski's trial attorney to suppress what he referred to as Kowalski's "false confession," which came after a lengthy interrogation by Furlong.

Days before the trial, Kowalski’s trial attorney, Walter Piszczatowski, asked Brennan to disqualify herself based on an inability to be impartial due to her close personal relationships with two key prosecution witnesses, including Furlong. Brennan denied the motion, and Reader upheld her decision.

At that Jan. 4, 2013, hearing, Piszczatowski did not specifically name the witnesses and neither did Brennan, who said, “If I thought for one second that my friendship – and it’s a friendship, it’s nothing more than a friendship. I shouldn’t even have to say that on the record, but that’s all it is.”

If Van Hoek’s motion is granted, it would be up to Vailliencourt’s office to determine if Kowalski would again stand trial for murder or to dismiss the charges.

“Frankly, I don’t think that’s likely,” Van Hoek said about a possible dismissal.

Contact Livingston Daily justice reporter Lisa Roose-Church at 517-552-2846 or lrchurch@gannett.com. Follow her on Twitter @LisaRooseChurch.