In The News

In The News

Sunday, November 6, 2016

Why Would a Prosecutor Investigate a Dismissed Case? Timing is Everything

By Michael Nichols
Categories: Michael J. Nichols

The cell phone sent a text message notification to me at my desk last Wednesday afternoon. For some reason, I stopped what I was doing and read the text. A detective from the Michigan State Police, the same detective who investigated the alleged embezzlement by a public official case up north before it was dismissed was now in the office of the treasurer of Iosco County. Why? He was without a warrant, without a FOI request and never talked to the elected treasurer about being there. He was apparently looking for screen shots of data from a particular type of account. Did I mention the case was dismissed?

This is an election year like none other. The FBI is accused of dripping leaks; there are claims that the election is “rigged.” In the county in which this bizarre case is taking place, the prosecutor is hurling claims that her opponent misused his office as a part-time prosecutor among other things – without proof. She is engaging in astonishingly injudicious campaigning. This is the same prosecutor who is now investigating anew the case that was dismissed against my client, the deputy county treasurer. The prosecutor also filed a “claim of appeal” on the last day of the 21-day appeal period. That happened to be 1 week before the vote for the 23rd Circuit Court.

Now, it is true that an investigation can continue even after a charge is authorized by a prosecutor. It is also true that a prosecutor can appeal the dismissal of a case at a preliminary examination. Usually, I do not have a problem with either of those 2 scenarios even though it is additional anxiety for a client and the standard of review by the appellate court is “abuse of discretion” when it comes to factual findings.

That is part of what makes this case so bizarre. The prosecutor’s chief witness is a politician. A politician who is running against her boss, the elected treasurer of Iosco County.

The district court stated the following about this politician in his written opinion “I don’t find Ms. Hackborn to be a very credible witness.” That is a finding of fact. No one is in a better position to make that determination than the district judge who heard the testimony and reviewed the exhibits. The circuit court judge may not insert his or her own judgment absent a finding of an abuse of discretion.

This type of case only comes along once in a very great while.

The district judge supported his conclusion by the timing. Timing is everything. The witness in question is what you might call the “rival” of my client. She was passed over for a promotion years ago that went to my client. She had just made a claim before getting passed over about what she believed to be theft back in 2007. That claim was examined by the outside auditor for the county. No money was missing and no embezzlement was found. They recommended some improvements and updates to tracking but that was it. You would think that is the end of it.

Then we fast forward to 2011-2012. Here is the crazy part, the really crazy part. 3 of the employees including my client all told the detective for the Michigan State Police that there was an understanding that the employees could use “markers” or IOU’s if they needed small amounts of cash from the treasurer’s cash box. Ms. Hackborn agreed with the practice. Then, each and every year that the outside auditor, Stevenson and Gracik, met with each employee no one during the same time period made any statement or claim or report of any fraud, any concerns or any observations. That would include Ms. Hackborn.

Fast forward again to 2016. Ms. Hackborn wants to run for Treasurer. She claims it is because she believes that the elected treasurer is going to run, retire and then appoint my client as his successor. The problem with that theory is 2-fold. It is up to someone else other than the retiring public official (the Probate Judge, Clerk and Prosecutor decide the replacement). Secondly, this is where the whole concept of finding a new job comes into play. If you dislike your job or your boss that much – go find a new job.

The things outlined here are the predominant reasons that the district judge made a credibility determination of such certitude – and one he is charged with doing so when the credibility is called into question at a prelim under a case called People v King. This determination cannot be reversed absent a finding by the reviewing court of abuse of discretion.

The prosecutor argued for a strict liability interpretation of the statute that prohibits embezzlement by a public official at MCL 750.174. This interpretation is criticized by at least 1 law review article that I found with the help of our colleagues at the Nichols Law Firm and some other lawyers on who I sometimes confer for help on cases. It is also contrary to the language of a pending bill -- that is totally divorced from this saga -- working its way through the Michigan legislature. The bill would interpret Michigan criminal law to assume that every crime has a criminal intent (Mens Rea) requirement unless the legislature specifically states otherwise.

The prosecutor went on local radio in Tawas City and discussed this case the next day in the context of her campaign for judge. 2 days after she filed her appeal. The things that she said are not supported by the facts or the law in my opinion and she continues to try to make my client a criminal. So, in the interest of setting the record straight and standing up for my client, I am taking the time on a Sunday morning to lay out the very cold and stubborn facts for this legal saga.

When I got off the phone with my client I immediately called the prosecutor. We had a heated conversation. She told me that she did not and is not pursuing this case for the publicity for her judicial campaign. I like to give everyone the benefit of the doubt and verify or dispel any predilections I might have about them. I just wonder, why investigate such a hot-button case now? Why not even do so much as pick up the phone and call the auditor about what happened in 2008? Why not take your time and not bring the government’s resources against a citizen until and unless an investigation truly justifies bringing that power and using those resources.

I often ask jurors to give my clients the benefit of the doubt. I want to give the prosecutor the benefit of the doubt, too. However, I always come back to 1 concept: “timing is everything.”

This type of cases only comes along once in a very great while … thank goodness

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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.