Brian Dickerson

Editorial Page Editor

In a move arousing keen interest among the 600 judges subject to its ethical oversight, the Michigan Judicial Tenure Commission has asked a special master to investigate allegations that its own top prosecutor withheld exculpatory evidence in disciplinary proceedings against a Washtenaw County judge.

It could prove much ado about nothing — or bring a decades-long debate over the fairness of the judicial discipline process to a boil just as hearings begin in a high-profile case against Oakland County Circuit Judge Lisa Gorcyca.

Complaint filed against judge who sent kids to 'jail'

Late last year, the JTC asked the state’s highest court to kick Judge J. Cedric Simpson off the Ypsilanti District Court bench after concluding that Simpson attempted to meddle in an intoxicated driving case against his female court intern.

Judge accused of meddling after intern stopped by police

But in a terse order issued two days before Christmas, Michigan Supreme Court justices sent the case back to the JTC and ordered commissioners to consider newly disclosed e-mails that Simpson’s lawyers claim exonerate their client of any wrongdoing.

Then, last month, the JTC quietly asked retired Judge Peter D. Houk, the special master who had initially recommended Simpson’s expulsion, to review the new evidence and determine why the e-mails, which were in the possession of the JTC’s top prosecutor, had never been turned over to Simpson’s attorneys.

Now Simpson’s attorneys are asking Houk to disqualify the JTC’s entire staff from any further participation in the case, arguing that the attorneys who prosecuted Simpson the first time around are likely to be called as witnesses in Houk’s ethical inquiry.

On the hot seat

The commission’s unusual request — which comes on the heels of its decision to dismiss ethical charges in a separate case against Wayne County Circuit Judge Richard Halloran — has put the JTC’s top prosecutor, Paul Fischer, on the defensive as he prepares to take on Gorcyca in a disciplinary hearing scheduled to begin May 31.

In a formal complaint issued late last year, the JTC alleges that Gorcyca committed multiple ethical violations in her handling of a protracted custody battle between an Israeli-American executive and his wife, a University of Michigan eye surgeon.

The JTC complaint centers around Gorcyca’s decision to incarcerate the couple’s three children for refusing to talk to their father. But it also alleges that Gorcyca lied to Fischer and his staff during their investigation of the case. In previous judicial discipline cases, the state Supreme Court repeatedly held that lying to the JTC is “incompatible” with continued judicial service.

Established by a 1968 amendment to the state constitution, the JTC’s nine members include representatives appointed by the governor, the Michigan Bar and associations representing the state’s district court, circuit court and appellate appeals judges.

Fischer, a former assistant Oakland County prosecutor, has been the JTC's executive director and general counsel since 2001, building his reputation as an aggressive prosecutor of judicial misconduct. In the last three years alone, Fischer and his staff have initiated investigations in the expulsion of five Michigan judges and the suspension of many others.

By law, allegations of ethical impropriety by a sitting judge become public only after the full JTC has adopted its staff’s recommendation to file a formal complaint. Commissioners then appoint a special master — typically a retired judge — to conduct a fact-finding hearing and make disciplinary recommendations. The full commission can accept, reject or modify the recommendation before forwarding it to the state Supreme Court for a final decision.

Critics have complained — sometimes in legal motions — that the process unfairly makes the JTC the police, prosecutor and jury in allegations of judicial misconduct. Gorcyca's attorneys are only the latest to argue (as they do in a recently filed answer to the charges against her) that the commission's "unitary structure of investigation, prosecution and adjudication" violates their client's constitutional right to due process.

The final arbiter

The state Supreme Court has the ultimate authority to discipline judges, although it typically shows considerable deference to the commission's recommendations.

But both of the two most recent complaints brought by Fischer and his staff have run into serious problems — and the commission dismissed one of them outright after a special master concluded that the accused judge, Wayne County Circuit Judge Richard Halloran, had "done no wrong."

Halloran was charged with judicial misconduct in 2014 for granting judgments of divorce in four cases without taking sworn testimony to establish his jurisdiction or the statutory grounds for divorce. Halloran readily admitted that he frequently dispensed with such sworn testimony by taking "judicial notice" of pleadings in which both divorcing parties agreed that the court had jurisdiction and that there had been "an irreparable breakdown" of their marriage, but argued that he had violated no law or court rule.

Last November, John O'Hair, the retired judge and former Wayne County Prosecuting Attorney appointed to hear the case against Halloran, declined even to convene a hearing before concluding that the ethical charges against Halloran were unfounded.

"The decision to use the abbreviated procedure was deliberately and thoughtfully made," O'Hair said, observing that none of the divorcing couples or their attorneys had objected to Halloran's time-saving procedures. "He did no wrong," O'Hair wrote, adding testily that Halloran had needlessly spent a year under the cloud of suspicion conjured by the JTC.

Although they were under no obligation to do so, commissioners quickly endorsed O'Hair's recommendation that the case be dismissed.

Missing evidence

In the case against Simpson, both the commission and its special master, Houk, agreed that the Ypsilanti District Court judge should forfeit his job for trying to intervene in the investigation of a drunken-driving charge against his intern, Christine Vargas.

Vargas, who was arrested at about 4 a.m. on Sept. 8, 2013, after an accident near the judge's home, subsequently pleaded guilty to the charge. But witnesses testified that Simpson had exerted subtle pressure on police and prosecutors by showing up at the accident scene and repeatedly asking questions about the evidence against his colleague.

Supreme Court justices were considering the JTC's expulsion recommendation when Simpson's lawyer, Ken Mogill, discovered police e-mails bolstering Simpson's contention that he had done nothing to stop or delay Vargas' prosecution.

Fischer admitted that the e-mails, which Mogill had obtained via a Freedom of Information Act request to the Pittsfield Police Department, had been turned over to JTC investigators previously in an e-mail attachment from Pittsfield. But Fischer insisted that neither he nor his staff had been previously aware of their existence, and he disputed Mogill's contention that they cast new doubt on the allegations against Simpson.

Unconvinced, the state Supreme Court remanded the case to the JTC, which subsequently ordered its special master to determine whether the e-mails were significant and why they had not been made available to Simpson's attorneys.

In a telephone interview Thursday, Fischer said the inquiry ordered by his bosses would vindicate his account that the e-mails were of little significance and that he would contest Mogill's motion seeking his disqualification.

"They weren't turned over because we didn't know they existed," he said.

The matter seems likely to come up when commissioners gather Monday for their monthly meeting — which will be closed, as always, to the public.

Contact Brian Dickerson: bdickerson@freepress.com.