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April 14, 2021 "The People must emphasize that this responsive pleading does not attempt to excuse or explain the non-disclosure of evidence favorable to defense. APA Marc Keast

Writer's picture: Justice for Denis PrekaJustice for Denis Preka

Updated: Jan 30


THE CLERK:  Your Honor, now calling the case People v Remington, 2019-272593-FC.

April 14, 2021 9:52 a.m proceedings convened MR. KEAST:  Thank you.  Good morning.  Marc Keast on behalf of the People.

MR. ROCKIND:  Neil Rockind, P-number 48618.  I'm co-counsel for Nicholas Remington.

MR. LEWIS:  Good morning, Your Honor.  Randall Lewis on behalf of Mr. Remington as well, co-counsel, P46134.sir.

THE COURT:  Thank you. Mr. Remington, your name for the record, please,

DEFENDANT REMINGTON:  Nicholas Remington.

THE COURT: And Prosecutor McDonald, did you want to put an appearance on?

MS. MCDONALD: Karen McDonald on behalf of the People.

THE COURT: Okay. Go ahead with the motion, please.

MR. ROCKIND: Judge, I don't know how much time you've allotted for us to have this conversation today, but this -- the discovery and due process violations that occurred in this case prior to Mr. Keast taking over the case, and really prior to -- I'll just say prior to Mr. Keast taking over the case, are abominable. They're some of the worst, most egregious discovery disclosures and failures that I've seen in 27 years. And I hate when lawyers go on and start to talk about their history or their experience or their -- you know, or their time, you know, their time practicing. I hate that because I always feel like that's just sort of a backdrop. But early on in the case we began to experience and believe that there were discovery failures and that there were issues with the way that the case was being prosecuted. And we took great effort and great pains, went to great lengths I think, to detail in our motion the history, breaking down each and every one and how we ultimately came to those and how they continued to stack up one after the other. So one of the things that I kind of want to fast forward to because it doesn't seem like -- one of the things that I want to fast forward to because it doesn't seem like there's disagreement from the State based on the State's responsive pleading, that we have -- that there were discovery, we'll just say shortcomings. What I was troubled by when I read the State's response, and I had been in regular communication with Mr. Keast about this case, what I was troubled by was that I didn't think the State went far enough in attempting to explain it to the Court. I didn't think the State actually took a position. It seemed like the position was, this occurred, we know that this occurred, it was very -- yeah, it happened, the information wasn't -- report number ten wasn't disclosed and we're agreeing to a remand. But the discovery abuses in the case and the due process abuses in the case specifically relate to Brady material and MCR 6.201 obligations that are placed upon the prosecutor. Because they are more than just an advocate, they're more than just an opponent in court, it's not just Neil versus whoever the prosecutor is, or Randy versus whoever the prosecutor is, it's actually -- it is that person representing the State. And part of the people that they're obligated to protect is the accused. So when a prosecutor stands in court and says I represent the People, (indiscernible) that body of people which is not particularly capable of being identified. They don't represent the victim. They don't represent the decedent, even if that's how prosecutors have styled themselves over the course of the last 20 years. They represent the People. And the People includes Mr. Remington. And it's part of their responsibility, it was part of the original trial prosecutor's responsibility to ensure that Mr. Remington received due process even if the information that came across her desk or came to her was unfavorable to the State. And so when I read the State's response, and I have a lot of respect for Mr. Keast, I am interested to hear the Court press him, and I hope the Court does press, because I think part of this issue, part of the Court's ultimate conclusion in the case has to be why did this happen. Part of the Court's ultimate decision making, what has to go into the mix is, why did this happen, what actually happened. So let me fast forward to the end of sort of where our brief ends and their brief ends. The People's position seems to be legally in the case, and I don't want to -- it seems to have the feeling of, no harm, no foul. That currently is the way that their brief came across to me. Which is, yeah, I know that my 350 pound lineman jumped on top of the quarterback, and I know that it was clearly after the whistle blew, and I know that there's the -- but you know what, the quarterback will be able to play in his career again so we can just, you know, don't worry about it, you don't have to kick the guy out, you don't have to suspend him, you don't have to actually fine him, because he'll be able to, the quarterback will be able to return to the game at some point. But that's not the case here. Essentially, the prosecutor's position is that there is no consequence to the State for what was a clear discovery, due process violation. So let me break it down. MCR 6.201, even if a lawyer, a defense lawyer never asks for specific information, MCR 6.201 places obligations upon the prosecutor that include mandatory disclosure. Mandatory disclosure of -- and this is a -- let me just provide it specifically to the Court. MCR 6.201 provides mandatory disclosure of the names and addresses of -- and this is upon request. Under (B) discovery of information known to the prosecuting attorney. Upon request the prosecuting attorney must provide each defendant any exculpatory information evidence known to the prosecuting attorney. Any police report and interrogation record concerning the case. Any written or recorded statement. Any affidavit, warrant and return pertaining to a search or seizure in connection with the case. Start with -- and what remedy, because this really is sort of where the People's brief and the defendant's brief seem to really diverge. Our belief is that there is a consequence for pursuing Mr. Remington in a criminal case, for permitting the preliminary examination to go forward when the prosecutor has engaged, the original trial prosecutor engaged in discovery and due process abuses, where the information was not disclosed to the defendant, was not disclosed to defense counsel, where arguments were made that ended up contradicting and appear to contradict the statements made by the information that was received by the prosecutor. Where there appears to be a concert in action, or concerted action between the detective in charge of the case and the prosecutor, where I don't believe that we've even begun to scratch the surface about what culpability the detective assigned to the case has. Because it currently seems like he's going to take the Sergeant Schwartz or Sergeant Schultz position that maybe, well, I was just following orders. Which is nonsense because he himself is a police officer, has his own obligations and duties. Where in the meantime, what are the consequences for this violation of MCR 6.201? We clearly were not given exculpatory information. We weren't given exculpatory information that was handed directly to the prosecutor. Now I know -- and I want to talk about what that meant. One of the arguments that the prosecutor made during the case in district court was that the messages on Snapchat had to have come from Mr. Remington; they had to have. At one point she made an argument, which I think was misleading, I don't know if I'll chalk it up to -- we can chalk it up to she just misspoke, or it could be that it was deliberately misleading. I'm not -- again, I know what the comment was. The comment was, she made a comment about Mr. Remington's device, that these messages came from his device. The police never actually examined, never had, never examined Mr. Remington's device. There's no evidence of his device or a phone that had been seized from him that had been examined in this case. So put that aside for a second. What was there? She made an argument that the messages on this Snapchat account, this (indiscernible) Snapchat account, had to have come from Nicholas because it was his account, etc., etc. In the meantime, she literally had been handed a Snapchat exhibit or evidence by the decedent's stepfather who -- was handed that in court. She was handed that -- it was handed to her. And I do appreciate Mr. Keast correcting his responsive brief. When the brief came to us, I think it was confusing because it identified Ms. Preka as a person, the decedent's mother, who had received this Snapchat. That is not the case. I saw it. I talked to Mr. Keast about it, whether he had some other information, whether that was an oversight on his part. He did correct it. We notified him of it and he dutifully corrected that, which I appreciated, but it doesn't -- it just makes it clear that Ms. Preka handed -- or excuse me, Mr. Thom handed to Ms. Hand, a Snapchat exhibit or picture that occurred that was published while Mr. Remington was in jail. There were -- that fact right there, that fact undercuts the State's entire argument that it made in the -- that it made in its responsive -- in its response to our motion to quash, and in its argument to Judge Reeds. I think the State's position is, well, you can just remand it and we can have a do-over. I don't think things work like that. And I don't think MCR 6.201 suggests that things work like that. And MCR 6.201, where there is the obligation to disclose exculpatory information or evidence known to the prosecutor, that clearly wasn't done. There were -- and then any affidavit, warrant and return pertaining to a search or seizure in connection with the case, those weren't disclosed to us either by the prosecutor.  So let me tell you what I think happened and where I think this case should go. So for whatever reason, whether it was gamesmanship, whether it was some connection or affinity to the decedent, whether it was something to do with me or Mr. Lewis, you know, I can't begin to tell you, there was a failure on the part of the State that was prosecuting this case against Mr. Remington up until Mr. Keast took over the case. And that occurred at critical stages of the proceedings. And that failure, from my view, started early on in the case when we received discovery information from the State, and I laid it out in detail. One of the things that I laid out in my pleading was that there were -- when you put some of these pieces together there are -- clearly there are inexplicable -- it's inexplicable, inexplicable, how the prosecutor could have received some of this information -- how could she think, for example, how could she seriously argue that a phone that was found at the scene of the incident, that was the decedent's phone that was seized by the police and that was ultimately examined by the police, how could one -- I mean, how is it conceivable to argue that that phone and that the extraction from that phone is not discoverable? It's a police report prepared by a police officer. But her position, when she was sitting at her desk as I'm cross-examining the officer in charge of the case, the detective, Detective Balog, her position was they didn't have a chance to communicate or coordinate. And if they did, I'd love to hear about it, because it means that they had some plan. But I think that they were essentially caught off guard with the way that I was conducting the questioning. And as I asked him what transpired, like -- because I thought it was just bad police work, to be frank with you. I thought they'd just given the phone back to the decedent's mother and just said, hey, if you can find something on there, let us know. Which would be horrible police work. And as it turns out, what happened is the phone was returned, then the phone was actually gathered again by the police. It was actually subjected to an extraction by a police officer. That officer actually created a report. That report contains exculpatory evidence. And then that was buried. And then when I present it to officer, we had no idea at all. But the prosecutor knew. It wasn't like she said, what report, what extraction, what are you talking about, Mr. Rockind, I have no idea, Your Honor, I need a break, can we approach, this is news to me. She didn't do any of that. Her reaction was, it's not discoverable.Under MCR 6.201, she had a duty to provide that to us because it was a report. And if she thought that it wasn't discoverable and that she had -- there was a motion she could have filed, which would have been to file a motion for a protective order, which she didn't do. Stuff was just shocking. That wasn't the least of it. At the time I thought that was like the height of it, I thought, oh, my God, this is serious. But, you know, the judge actually orders that we're entitled to it, we address it. But it continued. It continued with the prosecutor interviewing, with Detective Balog, a witness who was -- an eyewitness, the homeowner. Can we back up for a second? This is a case in which they're claiming that my client, with three other people in the home -- one now died -- that my client, in front of two living witnesses, they're claiming that he handed drugs to Mr. Preka. And the prosecutor chose not to call either one of the eyewitnesses at the preliminary examination. Just gamesmanship. So then what happens is, we know, we have information through our own investigation, of what took place in an interview with Ms. Hand and the detective, Detective Balog, and this witness. And I start questioning the witness about it. And what happens? Ms. Hand -- you know, I said did you -- because clearly if a witness tells a detective or a prosecutor that they're not -- that there are contradictions or inconsistencies or you're changing your story, then I would say to you that what that -- that's exculpatory. That has to be memorialized. It has to be turned over. You can't just sit on that and say I'm going to put that in my back pocket and hide it. Which is going to lead to a point in a second about why this case needs to be dismissed, and that is that we only found that out through our own investigation. And when I questioned Detective Balog about that at the preliminary examination, his response was -- I said, did you say to Mr. Wiedenmeyer [ph] -- and I'm paraphrasing -- that he had -- he was changing his stories, or he had told four or five different stories? And his response was so cagey and so cute; I did not. And so then the question was; well, did Ms. Hand? And then she objected to hearsay, like she objected to her own statement to the witness as hearsay, to keep it out. But here's the thing; there was no report prepared. It wasn't memorialized. It wasn't provided to us. It wasn't disclosed to us. It wasn't produced in any kind of -- there wasn't a contemporaneous, you know, memorialization of the witness -- of what Ms. Hand said or what Detective Balog said. I will tell you that since that time, almost, what is it, 18 months later or so, after I presented that issue to Mr. Keast, Mr. Keast contacted the detective and said to the detective, you need to memorialize that. And he did in a report that has now been provided to us that is about two or three lines, which I would even suggest doesn't come anywhere near detailing the treatment and the statements that Mr. Wiedenmeyer made to the detective and to Ms. Hand. I will say that I have a good faith belief, based upon concrete evidence, that my office and us, what we gathered during our investigation as to what Mr. Wiedenmeyer was told and what he said and the pressure that was put on him during that interview, I'm confident that the only reason why Detective Balog prepared any report at all, which was maybe a line or two, which isn't even accurate by the way, was because the prosecutor said you need to prepare some kind of report that details that. How do you memorialize something two years later? What's the point of having a witness in the room to listen to the interview unless the point is to contemporaneously memorialize and have the witness do it? But nobody was claiming to be a witness until we pressed him on it. This was a gross abuse of the power of the prosecutor, and a gross abuse of the power of having a police officer sit in as a witness. Even if one could argue that it's work product, which it's not, it's not work product for the detective. The detective doesn't work for the prosecutor's office. He has an obligation to memorialize exculpatory evidence, too, he has a separate obligation. So why didn't he prepare a report? Why was this report prepared when Mr. Keast told him to, but why wasn't there one that was prepared after the interview with Mr. Wiedenmeyer? I can guess that the interview wasn't favorable to the State and so there was no -- it wasn't memorialized. And had we not actually done our own investigation it would have remained hidden. There is not a single bit of evidence to suggest that the prosecutor at the time was going to disclose to us any of the following: There was no evidence she was going to disclose to us that the cell phone had been returned to the State, or to the police. That the cell phone had been extracted, that there was potentially exculpatory evidence on the cell phone extraction. That Mr. Wiedenmeyer had been interviewed. That Mr. Balog had been present. That the witness had been confronted, and had been confronted with an allegation that he had changed his stories multiple times. There is no evidence to conclude that she was going to disclose any of that evidence to us because she didn't disclose any of that evidence to us voluntarily or willingly. There's no evidence to suggest that she was going to provide to us the evidence of her and Mr. Balog's interviewing of any other witnesses in the case. There's no evidence that she was going to provide to us the Snapchat exhibit that was handed to her by Mr. Thom. There's no evidence that we were going to receive the Snapchat exhibit. There's no evidence we were going to receive the letters that were sent to Snapchat by Detective Balog. No evidence we were going to see the affidavit in support of a search warrant that was sent to Snapchat. No evidence we were going to see what the return was. No evidence we were going to see what conclusions Snapchat sent to them; any information about the phones or the accounts that were used, the WiFi accounts that were used. There is no evidence that we were going to receive any of that. In fact, I would go one step further that this abuse is so bad, let me tell you why. Because there are people, there are probably lawyers out there that would have looked at the case that the prosecutor had presented to Mr. Remington and may have suggested to him that he enter a plea, that he try to do some kind of a Cobbs plea or negotiate some kind of plea bargain. And somebody else in Mr. Remington's shoes, who didn't have the lawyers who are willing to go through this fight, and didn't, honestly, have the benefit of a year of the pandemic to battle and to watch the prosecutor, could have been pressed by a trial judge focused on his or her calendar, or his or her dashboard or scorecard or whatever other thing that the Supreme Court calls it, and could have pushed someone like Mr. Remington and us into an early trial date and could have said -- and the prosecutor could have then made some kind of plea and the person could have taken it and they would stand convicted by plea with no real right of appeal. And all this evidence would have been hidden because there's no reason, there's not one single thing that anybody could point to. I will turn the podium over to Mr. Keast, or anybody else, to point to one single fact that reveals that Ms. Hand was going to disclose any of this to us. What happened was the opposite. There was a shadow investigation going on by Ms. Hand and Mr. Balog. It was done in the darkness. It was done in the dark. It was done quietly. What do I think happened? I think that when Ms. Hand got that document from Mr. Thom, and she  turned it over -- because there was clearly documentation that it was turned over to the detective. What I think happened? I think they went into panic mode. You can't tell me that Mr. Balog and her didn't actually communicate. Because at that point all she had to do was send it to Mr. Lewis or I; we were in regular communication with Ms. Hand about a variety of cases. We were never told that. So what I think happened? They then investigated. Rather than tell us, they actually went and got a search warrant. Think about this, Judge. The police went and got a secret search warrant. Not from Judge Reeds, who was presiding over the case, but they got a secret search warrant from a magistrate in the 52-1 District Court. What were they -- what was the -- what crime were they investigating? When you make an application for a search warrant you've got to make an argument that there's some crime you're investigating. What crime were you investigating? What they were investigating, what they had probable cause to believe, was that they had been handed exculpatory evidence. And what they wanted to do, was they wanted to have a judge issue them a search warrant that they could then send to Snapchat that Mr. Lewis and I wouldn't be aware of, and that they could investigate this exculpatory evidence and try to defuse the timebomb that had been thrown into their case. They wanted to hand us the bomb, they wanted to defuse it, and they wanted to hand it to us and say, here you go. And I believe that's why we didn't hear anything about it until I ultimately (indiscernible) Mr. Keast with my Brady letter and all the other issues that I raised, where we started going back and forth about the absence of -- the failures on the part of the State up to this point.

THE COURT: Okay. Mr. Keast.

MR. ROCKIND: And I want to say one thing, Judge. Mr. Keast's position seems to be that -- the reason why we've asked for the remedy we've asked for is because there's no evidence, Mr. Keast wasn't present for the investigation or the proceedings that were handled by Ms. Hand, so he can't say, as much as I have respect for him and think he's an honorable guy, and I do believe that about him, he can't say what was told to Ms. Hand, what Ms. Hand knew, what wasn't memorialized, what wasn't written down, what wasn't disclosed, what wasn't shared, what was hidden. And he can't say the same thing about Mr. Balog. Because Mr. Balog was, from our perspective, he was in lockstep with Ms. Hand. Reports not being prepared. Things being done out of order. Search warrants being applied for to investigate the source or origin or impact of exculpatory evidence. Four (indiscernible) witnesses being interviewed before the exam but no reports being prepared for four or five months. You're telling me that there are two officers, one prosecutor, and one detective, both experienced, that are just -- both happen to be acting in a way, when you look at it from 20,000 feet, appears to be in lockstep to keep the information from the accused, but were doing it sort of absentmindedly, like they just didn't know that it was happening? That just doesn't -- that defies common sense. So when the State says that the remedy here is to remand, I think the State sells short what other information is out there. Where does Mr. Remington, where does Mr. Lewis, where do we go to know that all of the information that we're entitled to has been turned over? Because all we have, when it comes to Brady material and Brady evidence, is trust. All we can do is trust. So as much as I trust Prosecutor McDonald, and I do, it's not her fault; as much as I trust Mr. Keast, and I do, it's not his fault; those that were involved in the Brady and due process and discovery abuses have no reliability, no credibility, and we do not trust them as sources of this information. So even if they were to come to the court, or to swear or to take some oath, absent God standing over them with a thunderbolt in His finger ready to thunderbolt them if they lie, I don't trust what those two individuals, Mr. Balog or Ms. Hand, would say. We have no way of knowing what other information has been suppressed. And there is very good reason to believe that other information has been suppressed because it was suppressed. So what does MCR 6.201 say? MCR 6.201 says that where there is a violation, a party fails to comply with this rule, the court, in its discretion, it is your discretion, may order a whole variety of things, and among the relief that you're entitled to -- among the things, among the arrows in your quiver, prohibit the party from introducing in evidence the material not disclosed or enter such other order as it deems just under the circumstances. So what is just? The Snapchat evidence in this case -- so we believe justice is to dismiss the case. That is the just result. If the Court were to somehow think that that is not just, and I think that is the clear remedy that is appropriate in this case, the Snapchat evidence is garbage. It is unreliable. It is, for all the reasons that we put into our pleading that we're not litigating at this point. But the Court has -- the evidence that wasn't disclosed to us, in part, undercuts the Snapchat evidence. You have the power to exclude the Snapchat evidence and say it's not coming in. Want to make your case? You make your case with witnesses, go ahead. I know Mr. Keast says that you also have the power to remand the case. You do, but circumstances have changed. Let me tell you one of the concerns I have about a remand as a remedy. Some people choose to let the criminal justice process play itself out. I encourage people to do that. Some people don't and they choose to pursue a civil remedy. They choose, for whatever reason, to attempt to file lawsuits. And in this case, the decedent's family has done just that. One of the issues early in the case was a communication by Ms. Preka to one of the witnesses that I think is, were it to be played in open court, or were Ms. Preka to be questioned about it, I think it would be revealed to be evidence of obstruction and witness tampering. It was a 40-minute or so recording. I mentioned it in my pleading. That phone call included threats, intimations, intimidation of a witness. That was turned over to us.As it turns out, since that time the Preka family, or the Thom family, have filed lawsuits against Mr. Remington, Mr. Wiedenmeyer, Mr. Gibrotz [ph], the other individual who was present. So that is a change in the dynamic. Because now, as opposed to having just witnesses come to court, now you have witnesses who also face lawsuits and have lawyers. And I don't know whether the assistant prosecutor who handled the case previously was aware of that or involved in that. Certainly, if I were the prosecutor, I would discourage anybody, a complainant or a decedent's family, from filing a lawsuit because it could only make things worse, which it has. But, you know, I don't know that a remand just solves it. There's a consequence here. The consequence is dismissal. And if the Court, for whatever reason, thinks a dismissal is too far of a reach -- which I don't in this case given the pattern -- then it is, at a minimum, the suppression of all the Snapchat evidence. So I'm interested to hear the prosecutor's response. And I will share with the Court -- again, I know that these abuses occurred before Mr. Keast took over the case. He and I probably disagree about the culpability of Detective Balog. He may view Detective Balog as someone who is -- you know, was unaware of these things or was just following orders or was doing his job. I don't. And so --

THE COURT: Let me hear from Mr. Keast.

MR. ROCKIND: Sure.

MR. KEAST: Thank you, Judge. The first line to my response makes clear that I, neither myself nor Prosecutor McDonald, condones anything that happened prior to January 1 of 2021, and let me just reemphasize that, Judge. My first line: The People must emphasize that this responsive pleading does not attempt to excuse or explain the non-disclosure of evidence favorable to defense. I absolutely agree with Mr. Rockind that this evidence should have been turned over in 2019. There is no argument there. I included a list of communications between myself and Mr. Rockind. I generally do not do that, but I wanted the Court to make clear the timeline from when I took over this case and when Prosecutor McDonald took over the office in general. I turned over everything as soon as I was made aware of Mr. Rockind's concerns. And I'm not saying that to be self-serving, Judge, I just want the record to be clear. Now, my sole argument rests with the remedy that the defense is requesting. Not that a violation occurred, but the remedy. And the remedy I have suggested wasn't picked out of thin air. It's based upon the law. When the Court reads Brady v Maryland, and every case that's come down since then, when the Court reads the cases regarding prosecutorial, judicial, police misconduct, the Court will find that a remedy is specifically and narrowly tailored to the violation. And again, these aren't remedies that I'm just suggesting or throwing out there. I'm not suggesting it's a do-over, no harm, no foul. My remedy is consistent with the law. Now, there's a few cases I want to point out to the Court. The most specific case is from the Michigan Court of Appeals. It's in my brief. It's regarding blanket judicial and prosecutorial misconduct. It's a case from Wayne County where the assistant prosecuting attorney --

THE COURT: What's the name of the case?

MR. KEAST: I'll spell it for you, Judge. A-C-E-V-E-L. It's on page 8 of my brief. In that case the Wayne County assistant prosecuting attorney conspired to commit perjury with witnesses, as well as the judge on that case. That prosecutor, and that judge I believe, were both prosecuted for those crimes. Now, that violation I use as the benchmark for the worst that a prosecutor and a judge can do. They conspired with each other to commit a crime, as well as with a police officer who was assigned to the case. In that case the Court of Appeals ruled that there was no bar to a retrial. In effect, there was no dismissal with prejudice because the remedy tailored was specific to the violation. When we talk about a due process violation -- and when favorable evidence to the defense is suppressed, it is a due process violation, make no bones about that, Judge. But when there is a due process violation the cure to that violation is a fair trial. What I have suggested would be, in effect, a fair trial. Now, this evidence appears to have been disclosed to assistant prosecuting attorney Beth Hand and the detective on September the 27th, 2019, as they were leaving the courthouse of the 52-1 District Court after the first date of preliminary examination. That should have been turned over immediately, but it wasn't. Judge Reeds continued the examination October the 16th, 2019. At that examination, Mr. Rockind did not have the benefit of learning this exculpatory information so he couldn't make a motion to reopen proofs. I believe he should. That is why I'm suggesting that this case go back to the district court and the district court judge now have the opportunity to hear the defense arguments in this matter, Judge. And Mr. Rockind has made a lot of statements about I can't say what was in Detective Balog's mind, I can't say what was in Ms. Hand's mind. That's correct. I can only tell you how I handled the case and how I would have handled the case. I can't argue that there was a violation, Judge, because there was. There's no doubt about that. But the situation we're faced with now is the remedy. And I do acknowledge in my responsive pleadings that this Court does enjoy broad discretion when fashioning a remedy. My brief simply is pointing out to this Court that the remedies typically given by courts in these situations are exactly the remedy that I have suggested. Thank you, Judge.

MR. ROCKIND: Judge, I have a couple of responses. I'm hoping that you're not done with Mr. Keast, because one of the issues under MCR 6.201, under subsection (J), there is a specific question about willful violation. The State hasn't addressed, one, whether, from their perspective, this was a willful violation. We've made our arguments that it certainly appears to be and that the detective in charge of the case certainly appears to have culpability. Quite candidly, I think if the detective were to testify in the case, he probably has Fifth Amendment rights as well given what I think are -- what is evidence of obstruction. But there is a case, I know the Plants case, the Acevel case that Mr. Keast is talking about, was a case in which the head of a drug unit in Wayne County, whose name was Karen Plants, Karen Plants had a witness on the witness stand who was an informant and she apparently had concerns that the informant would be potentially harmed by Mr. Acevel or others because of the way that the defense lawyer was conducting questioning, and he was trying to get police officers to disclose the identity of the informant or trying to get this witness on the witness stand to admit that he was in fact the informant. And she went and met with Judge Mary Waterstone, and met with them privately. She had a private meeting with the judge, totally ex parte, met with that judge, talked about this specific issue. I think the detective may have actually been involved. And they created this separate record, and it was all done on a separate secret record, and then the instruction was to this witness that he was to lie about whether he was in fact the informant. So the idea was that -- so that was the concert in action, the obstruction, the subornation of perjury, all of that was what was at issue in that case. Mr. Acevel was actually convicted at a trial, and then there was a remand, and the issue was really over this one specific issue. There was no claim anywhere else in the case, was no repeated historical discovery and due process abuses like we see in this case. There was no attempt to hide who a witness was. There was no attempt to hide who the exculpatory -- or hide exculpatory witness interviews. There really was one issue, that the prosecutor and judge, I mean I don't want to make light of it, but it was that, was this informant, this witness on the witness stand, was he in fact the informant. And they were bothered by the fact that the defense lawyer at the time was pressing and pushing on that issue.So even in that case there's no other claim that other, as far as I know, that other evidence had been excluded, that there was a historical pattern of discovery abuses. If there had been a historical pattern of suppression of favorable evidence -- there isn't even an argument that that's even favorable evidence, who the informant is. This is the suppression, a historical pattern of the suppression of arguably favorable evidence, and of evidence under 6.201. First, there was the suppression of the -- there was the argument that we weren't entitled to the extraction. That's nonsense. There isn't a single person that I think would actually agree with that. I don't think even Mr. Keast or Ms. McDonald would agree with that. It's nonsense. I mean, the police get a phone from the decedent that was at the scene; there may be a break in the chain of custody because the phone was given back to the family then returned to the police department. But then there's an extraction done by a police officer. That is -- there is an obligation to disclose that. And your remedy, if you don't think that you should have to disclose it, is not to say that it's not exculpatory. Your remedy is to seek a protective order. And nobody would have granted one because it's evidence found at the scene of the alleged crime. And the phone did contain exculpatory evidence. And under the protective order, I don't want to go into it, but the Court, I think, has an idea of what it is. We're dealing with an overdose case. There's evidence on the phone that I think that is arguably exculpatory evidence. And it was known to the police and to the State. That was suppressed.A witness, an eyewitness changing his story in the presence of the prosecutor and the investigator, that was suppressed. That continued to remain -- the only reason why I know about it is because we did our investigation, but it was suppressed by the State. It was suppressed by the prosecutor, and it was suppressed by the detective. And if the argument is, is that the detective is somehow blameless in all of this, then that really does a disservice to what it means to be a police officer and a detective and to have a separate obligation. I mean, if the prosecutor says go out and shoot this person in the hallway, I presume that the officer would turn to the prosecutor and go, Ms. Hand, I'm not going to go out and shoot that guy in the hallway; that would be a crime, that would be illegal. Well, I want you to go take this evidence and I want you to shred it. I would hope that a detective would say, I'm not going to go shred that, Ms. Hand; that would be wrong, I can't shred this stuff. So to say, come on, interview this guy, but there are no notes; we don't have any notes of this interview with this witness. We're interviewing the witness for trial purposes. We don't even have a trial date. This is the argument that we're told now. We're interviewing this witness, Mr. Wiedenmeyer, before the preliminary examination, we're interviewing him, the detective and I, says Ms. Hand and Mr. Balog, we're interviewing him because it's for trial purposes. They didn't call him at the exam. Which is probably not a coincidence. And they had Mr. Balog there for what reason; to be a witness to what he said? A witness to what?

THE COURT: All right, Mr. Rockind.

MR. ROCKIND: Yes, Your Honor.

THE COURT: You've made all these arguments.

MR. ROCKIND: I want to make -- there is a case, People v Obispo, O-B-I-S-P-O, and it's 225 Mich App 592, and that is a Court of Appeals case. I haven't Shepardized it, so if it's been reversed that would suck for us, but it is a case -- I'm being honest, I'm sharing with the Court, in that case the prosecution, there were discovery issues in the case and it turns out that there was a discovery order and I think there was (indiscernible) discovery order that was served on the police department, went to the police department, and then the judge made a -- the judge concluded that based upon the gravity and egregious nature of the discovery violations that the case ought to be dismissed.The prosecution argued that the trial court's dismissal of the charges against (indiscernible) Obispo was inappropriate under the circumstances. We (indiscernible) a trial court's (indiscernible) regarding the appropriate remedy for non-compliance with a discovery order for an abuse of discretion and there are several cases cited. The exercise of discretion involves a balancing of the interest of the courts, the public and the parties. It requires inquiry into all the relevant circumstances, including the causes and (indiscernible) of tardy or total non-compliance in a showing by the objective party of actual prejudice, which I think we've done. And in that case, on the basis of our review of the record we conclude the trial court did not abuse its discretion in dismissing the charges against defendant in response to the prosecutor's complete failure to ensure the defendant was provided with timely discovery. We do not believe the trial court's dismissal of the charges was unwarranted or unnecessarily harsh. Mr.Remington, going forward, and I say this on behalf of Mr. Lewis and I, we simply have -- we have no way of knowing, even were this case to be dismissed without prejudice and reauthorized, we have no way of knowing what other evidence was suppressed. Because we were the source of identifying that there was some suppression of exculpatory evidence. So again, we renew our motion to have the case dismissed with prejudice. If the Court is seeking an alternative other than suppression of evidence, then I would suggest to the Court that suppression of all of the Snapchat evidence in the case. That's not our preferred remedy, but that is another remedy. I believe a simple remand to begin the process anew, I think is not a sufficient remedy given the gravity of the due process violations that have occurred in this case.

THE COURT: Okay. Anything further, Mr. Keast?

MR. KEAST: Judge, I did my best to brief the issue in my responsive pleading. You know, a few things I do want to address is that counsel brought up 6.201(J). It's not either one of the parties' responsibility, duty, or even our jobs, to suggest what's willful; it's the court, respectively. So it's not my position to suggest what is willful or what's not willful, for one reason, and one reason alone; it's the court that must fashion the remedy in this case. But also, Judge, as a practical matter, as I stated, the very first sentence in my brief, the first thing I put on this record is that I cannot get in the heads of the individuals who were on this case, Judge. I can only talk -- deal with what I have done, and, you know, make analogy to the law and what the Supreme Court and the Court of Appeals have determined to be the appropriate remedy. I included that in my brief. I'm happy to answer any questions, Judge.


MR. ROCKIND: And I know they can't, Judge. But the people that took over Enron, for example, they could have been the most honorable people in the world, they were still handed -- they were still handed all of the violations and abuses that occurred before they took over. We aren't faulting Ms. McDonald or Mr. Keast. We're just saying that Mr. Remington is not lost in this mix, this impacts him. Because it's not Mr. Keast or Ms. McDonald's fault, they're the ones who are left to sort of sweep up the remains here, but Mr. Remington is the one who has suffered throughout this because of those abuses. And there is a price to be paid and the People are the one that have to pay that price. And that price is dismissal.

THE COURT: Prosecutor McDonald, anything you want to state for the record?

MS. MCDONALD: No, Your Honor. I have confidence in Mr. Keast that he articulated our position accurately.


THE COURT: All right. Thank you. With regard to this matter, have the attorneys had an opportunity to speak with regard to a remedy for this matter without the Court going at the motions?


MR. KEAST: Judge, when this information was first made to light, I believe I included that in my brief, my suggestion to counsel was the remedy early on, and then counsel indicated he was going to file this motion.


THE COURT: But your remedy, sir, was to have it remanded to the district court with regard to having a preliminary examination.


MR. KEAST: That's correct, Judge. I included the timeline in my brief. When Mr. Rockind spoke with me on March the 2nd and made me aware of the information he had not received from Ms. Hand, I confirmed it March the 3rd. I spoke with my office, Prosecutor McDonald, and we agreed to stipulate to the bond modification, which this Court signed, and also communicated to counsel the -- our suggested remedy to the case.


THE COURT: And as Mr. Rockind has indicated, the only information that he's now received is information that he's uncovered has existed. He has no assurances, (indiscernible) information or discovery that wasn't disclosed and that's what the concern is with regard to how this case is proceeding. I understand it's no fault of our current new prosecutor or yourself, sir, and that you're left to clean everything up.


MR. KEAST: That's correct, Judge. And regarding Mr. Rockind's concern, I think the same could be said for every single criminal case that's ever issued in this state or in this country. Discovery goes through the prosecuting attorney governed by specific rules, not just the Code of Criminal Procedure, but the Michigan Court Rules, as well as Brady and our own ethical obligations. When violations are uncovered, as in the Michigan Court of Appeals case (indiscernible) Karen Plants, there are ramifications for the individuals who violate those. Ms. Plants and Judge Waterstone did face those violations, or those potential avenues of discipline. I have the same responsibilities. And I can tell the Court that, as I indicated in my motion, I received an entire copy of the police reports and they all have been turned over in accordance with MCR 6.201. I do agree, if I received something that I believe is non-discoverable or it's privileged, the proper remedy for myself would be to file a motion for a protective order. Meaning that, hey, Mr. Rockind, I have this, I don't think you're entitled to it, but it's potentially exculpatory, so the judge should rule, yourself Judge, should rule on what's turned over. But defense counsel indicating the concern that you can never know what's in a prosecutor/police file, that's uniform through every single criminal case and that's why we have specific rules governing the disclosure of certain material.

MR. ROCKIND: My counter to that is that when a case begins there is a general -- there's a trust factor. And the trust factor is between the defense, the court, and the prosecutor. And that trust factor is, is that just out of paranoia saying I don't trust that you've given me everything isn't going to fly, because if they have some facts, you have to have some fact-based reasoning. So with Mr. Keast, were he on the case, I would have, from the beginning, I would have no reason, unless I were presented with one, nor would Mr. Lewis unless he was presented with one, believe that Mr. Keast was holding out on evidence or holding -- or directing the detective to do something that was inappropriate. But we're not in that circumstance. The court rules -- like I said, it's not like all of a sudden when you take the court rules in your hand as a lawyer, that if you breach the court rule, if you breach 6.201 all of a sudden, you know, like a flag goes up behind Ms. Hand's chair, or that she gets shocked all of a sudden. We're not, like a Kewpie doll, where, you know, every time we mention her name she's saying ouch somewhere else in the universe. The fact of the matter is, is that the only way that we have trust that the prosecutor is fulfilling his obligation, or her obligation under 6.201, and under the Brady rules, is if there's voluntary compliance. And we know there wasn't voluntary compliance. We know there was the opposite, there were breaches and violations of 6.201 and Brady. They were done right to our face. They were done to Mr. Lewis' face. They were done in the presence of the court. So no, I'm sorry that -- I know Mr. Keast says that there is a process involved, but that process is based on trust, and that trust has been broken. So what's the aftermath? Mr. Keast says that he's given us everything that the police department presented to him. I understand that, except the police department is not without fault here as well. There are reports that were prepared of interviews that occurred -- reports generated five months after an interview with a witness. And the report --

THE COURT: With regard to the reports that were given five months post the interview, was anything, to your knowledge, relied upon with regard to the drafting of those reports?

MR. KEAST: I can't speak to that, Judge. The report that counsel is speaking of right now, that occurred before I came on the case. There was a report that I asked the detective to author when Mr. Rockind made me aware of an interview that Detective Balog and Ms. Hand had with that witness. I asked him if he had written a supplemental report regarding that; he indicated he did not. I told him to write one and send it to me. When he did, I turned it over to defense counsel. That's with the witness, last name Wiedenmeyer. The interview regarding witnesses --

THE COURT: Were there notes taken?


MR. KEAST: Excuse me, Judge?


THE COURT: Were there notes taken?


MR. ROCKIND: Testimony was no.


THE COURT: Okay.


MR. KEAST: I don't have any notes of those. 

THE COURT: I'm sorry?

MR. ROCKIND: Mr. Balog testified that no notes were taken. Ms. Hand didn't take any notes. He didn't take any notes. This was of a witness who could have been called at the preliminary examination, but remember, the reasons for interviewing this witness at that time changed. At one point it was -- Mr. Balog testified at the preliminary examination that it was an informal interview. I don't know what that actually means. That's not a term that I'm familiar --

THE COURT: Mr. Rockind. MR. ROCKIND: Yeah


THE COURT: Thank you, I was asking the questions.


MR. ROCKIND: I'm sorry.


THE COURT: Mr. Keast, with regard to the information, were there notes taken by anybody?


MR. KEAST: I don't have any indication that any notes were taken, Judge. I couldn't find any -

THE COURT: (Indiscernible).

MR. KEAST: I'm sorry. I couldn't find any notes in the file I inherited. I asked the detective if he took notes; he indicated he did not, so I had him write a supplement. Now, albeit, that supplement was authored some year and a half after the actual interview. THE COURT: Right. So what was it based upon, memory?

MR. KEAST: Correct.

THE COURT: Okay. And what about the witness; did the witness have notes?

MR. KEAST: I don't know that, Judge. I can tell you what I've been informed, but I don't -- I hesitate to tell this Court yes or no with any definitive answer on a question like this when I wasn't present two years ago. I was informed no, but that's all I can say.

THE COURT: I know, but it begs the question of, has everything been revealed. And, you know, prosecutors, they play an immense role in the judicial system. They play an immense role in protecting the public on all sides. I'm relieved that Prosecutor McDonald and yourself, sir, are now involved and attempting to remedy the issues that you see as a breach of the justice system. So I am very pleased about what's happened since this has come to light. But it's definitely very heavy, with regard to what's happened.

MR. KEAST: I agree, Judge.

THE COURT: The Court will issue a ruling.

MR. KEAST: Thank you, Judge. We are scheduled for a pretrial tomorrow. Would the Court like to continue that or schedule a new date? 

COURT: Sure would, continue it. Thank you.


MR. KEAST: Thank you, Judge.

MR. ROCKIND: We'll be on tomorrow as well?

THE COURT: Yes, sir.


MR. ROCKIND: Okay, Your Honor. Thank you. (April 14 2021 10:45 a.m proceedings concluded.) April 14 2021: Motion to Dismiss Court Transcripts click here.

Oakland County Prosecutor Karen McDonald her APA Marc Keast withheld all the evidence from the court a ZIPFile with transcripts, GEO location, pictures and videos showing Remington best friend and eyewitness Connor Gibaratz have used the snapchat account while he was in jail. They received the Zipfile from Detective Balog on January 21 2021 when they wrote the supplemental report #9 and #10 but Balog and Keast left out the most important evidence who logged on Remington snapchat account while he was in jail and the supplemental report #10 still as today was never updated.

The former APA Beth Hand never received the ZIPfile and the report was created after three weeks APA Hand left the office. Balog have the evidence since November 21 2019

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