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December 4, 2020 "I mean I think Ms. Hand was doing-was doing an-was doing her job as a prosecutor, she was talking to a witness who was going to testify at trial". Judge Alexander

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

Updated: Jan 28


THE CLERK: Calling People versus Nicholas Remington, case number 2019-272593-FH. Friday, December 4, 2020 - 11:07 a.m. at 11:34 a.m., proceeding concluded.

(Proceeding conducted via Zoom videoconference.)


THE COURT: Appearances please.

MS. HAND: Good morning, Your Honor. Beth Hand appearing on behalf of the People.

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

In my office with me at the moment is also Randall Lewis who's co-counsel, Your Honor.

THE COURT: Okay. I was prepping for this hearing this morning and it struck me that Judge.

Valentine's going to be hearing this case. So, I don't think I should be making any - - any preliminary decisions at this point. What do you guys think?

MR. ROCKIND: I agree with that decision, Judge, although I certainly respect you as a judge and a person. I think that whoever's going to be the trial judge should be making rulings about the admissibly of evidence at a trial.

THE COURT: Ms. Hand?

MS. HAND: Well, Your Honor, I disagree. These are legal decisions that this Court is capable of making. The motion to quash has nothing to do with the admissibility of evidence in the case. The motion to suppress don't have - - I mean eventually i t could have but it's not - -it's not a ruling on, you know, how the proofs are going to proceed. The motion to disqualify the Oakland County Prosecutor's Office and myself certainly has nothing to do with the actual trial in the case. So, I think the Court is well-equipped based on all the information provided to make the decisions in this case.

 

THE COURT: Oh, I'm well - -I'm well equipped to make the decision, Ms. Hand, I just don't know that I want another judge to be stuck with my decisions. I've been in that situation and I didn't like it quite honestly.

 

MR. ROCKIND: And, I appreciate that and I don't think i t ' s a function of whether you're well equipped to make the decisions. I think it's - - the first point that I was going to make and I appreciate the Court being - - being prescient was that vou're -- there's going to be a judge who's going to have to preside over this trial and these evidentiary issues are issues that - - just like vou would want to make those decisions for yourself, that was the first thing I was going to bring up when I had the opportunity but there are greater minds than me and I appreciate the Court bringing i t up before I -- before I did. And, I think that was your - - during our last status conference, that was something that you had alluded to and I think your initial gut reaction was correction and I think you're - - you're observation this morning is correct and I think we all agree with it.

 

MS. HAND: Well, Your Honor , we  don't -

 

THE COURT: Well, we all don't agree cause Ms. Hand--

 

MR. ROCKIND: Well, I don't mean we all agree with it but I mean that the defense agrees with it, I think Mr. Remington agrees with it, I think that my -- Mr. Lewis agrees with it, and I guess I'm not trying to weigh who (indiscernible) more but I think that that's the best course of action.

 

MS. HAND: Well, Your Honor, the only thing I would bring up is if this Court had ruled upon the motions in March when they were first filed, we did - -and I did agree to adjourns it several times at the defendant's request to try to accommodate his desire for an in-person although it's not his legal right to have it in-person, but had the Court ruled upon them in March we still would not have had this matter tried by the end of this vear and the successor judge would still be bound by the decisions you made whether or not they were made in March when the motions were originally brought, or whether they're made today. And so there's no - - there's no difference - -

THE COURT: Yeah, there's a huge difference Ms. Hand. In March we didn't know how long this was going to last. In March we would have thought - -if I had -- if we had made those decisions that this case would be over and in March it may have been a situation where decisions would have led to a resolution. So, I think there's a major difference. I'm not comfortable in making a decision that's going to bind Judge Valentine. This is my fault because I set this date and I shouldn't have. I should have set this - -but honestly when I set this I did not know who was going to be my successor. Judge Kumar has just made that decision this week. So, I think that in the interests of justice, I will tell you this. I am prepared to rule - - I'm not prepared to rule on the suppression and the evidence issues. I am prepared to rule on the motion to disqualify the Prosecutor's Office. That's not an evidentiary issue. I think that is something that I can hear this morning and I'11 - - so the motions to suppress, exclude, to quash the bind over, and the prosecutor's motion to admit other acts evidence, I'm going to punt that to Judge Valentine. You should get a date from her clerks to argue this motion. And, again, I think my prior ruling stands unless somebody's going to fi l e a motion before her to reconsider it relative to the live hearing. Let's arque the motion to disqualify the Prosecutor's Office.

 

MR. ROCKIND: Thank you. So, Judge, I ' m going to temper that motion a little bit. I- again, I don't know- - the focus of the motion is really, with all due respect to Ms. Hand, we've had many battles back and forth. I've always thought that I had a collegial, well not always, but mostly have had a collegial relationship with Ms. Hand. She's been a tough opponent and a tough advocate, and I've said that to her - -to her face, so I'm not saying anything that I - - is false flattery. But the fact of the matter is I'm not - -given the fact that I - - I don't know what Ms. Hand's participation in the next Prosecutor's Office will be, I don't know if she'll be the one - -she'll be in the office or not. If she's not in the o f fi c e then I think that may change the dynamics a bit because I'm not going to seek i t i f she's not in the office, if she would just be a citizen then I would quite honestly be seeking to call her as a witness in the case as opposed to moving to disqualify the Prosecutor's Office. The reason why I believe that Ms. Hand is a witness in this case, and there's a rather lengthy record that's made, and I hope the Court will just kind of work through it. The first is the issue that we raised in our- - in our pleading and it occurred at the preliminary examination. I f I'm not looking at the cameras 'cause I want to - - I'm looking at the notes, it's important issue and I want to make sure that I get it correctly. So, please don't think that I'm ignoring the face-to-face contact or communication that would ordinarily be the case. The history is that there was an interview that Ms. Hand conducted with Paul Weidemeyer (ph) who was a live witness or a witness and was listed on the prosecutor's witness list. There are - - that interview, from what I can tell and I believe the preliminary examination testimon on pages 113 and 119, 113 to 119, actually revealed that that interview contained and revealed exculpatory evidence. Exculpatory evidence included evidence that Mr. Weidemeyer, who was a listed witness and a res gestae witness, that he had changed his story. Ms. Hand had on information and belief, she had -- she, not Detective Balog (ph), but she had made statements that were bias. That she had actually armed that she had told Mr. Weidemeyer that he's given four different stories, that he's changed his story four times. Giglio versus United States, which was 405 US 150, 1972 case, extends the scope of Brady to include relevant impeachment evidence. Impeachment evidence falls within the Brady rule. There were no records of that interview, no notes of that interview, no recordings of the interview. We didn't even know the interview had taken place until we had actually had the opportunity to interview Mr. Weidemeyer. And, the only person that can arguably corroborate what Mr. Weidemeyer says would be Ms. Hand because if we ask Mr. Balog what did Ms. Hand say we get an objection which is what Ms. Hand made at the preliminary examination which was that it was hearsay. But, i t goes further than that. We didn't even - - there wasn't even a mention, we wouldn't have - -we hadn't even interviewed Mr. Weidemeyer or even stumbled upon this or asked about it during a preliminary examination, there would be no record that one of the witnesses, a potential eyewitness whose house this was where this even occurred had told or change their story four different times and been accused of changing his story four different times. The second reason that Ms. -- so that makes Ms. Hand a witness. She's the one who made the statement, not Detective Balog. The second issue is that there was a - - I don't know if the Court's aware but there was a phone dump in this case. So, Venice Prika (ph) is the - - is the deceased, his phone was actually seized. There's a report that I could put up here if you wanted to see it. It is a completely misleading police report that does not reveal at all that the police had seized his phone, had done an extraction of his phone, and that the phone itself had contained - - that - - and when we discovered that, we just happened to ask the Detective about it during the preliminary examination. We asked about i t and the Detective himself he said that oh there was an extraction which there - -that's a police report, it had not been disclosed. Ms. Hand originally attempted to deny that we were entitled to receive that - - that report or originally attempted to deny on the record and that's page 120 to 125. She had originally attempted to deny that that was discoverable or that it was discovery. The Judge ultimately ruled that i t was because i t should be and we've since seen that and that contained exculpatory evidence. It absolutely contains exculpatory evidence. T have the text messages that Mr. Prika (ph) sent to this girlfriend which are currently - -

 

THE COURT: What's that got to do with -- what's that got to do with DOing the Prosecutor's Office?

 

MR. ROCKIND: So, no longer seeking-- Ms. Hand is not - -my motion is to disqualify Ms. Hand. So, that is my motion to disqualify her as the trial prosecutor in this case. Our position is that Ms. Hand cannot - -and there's a- -there's a second issue. The second issue is that Ms. Hand actually interviewed Ms. Weidemeyer a second time. And, Mr. Weidemeyer in that second interview which has not been made part of a report, has not been documented, has not been produced, there's no record of it , we just happened to - - we discovered it. This witness actually told Ms. Hand, and I have - - we actually have notes of what the witness claims he told Ms. Hand telling her that he did not see Mr. Remington transfer any drugs, to give any drugs, deliver any drugs, that he didn't give any drugs to Mr. Prika. Those are statements made to her and then she confronted him and actually made statements in response to that. And, her statements in response tc that reveal bias. The interview occurred at a fast food restaurant. It occurred in March of 2020. There's another person who was present, we don't know who that was. The disclosures are favorable to our client that Ms. Hand actually - - from what - -the information that I have actuallv made statements to the witness at that point about how he couldn't pled the Fifth, why would he allow this to happen, why would he allow the - - M.r Remington to "get away with i t " , and when - - when the witness pointed out that the complainant's, the deceased's mother had actually threatened him, and there's a 45 minute phone call where she threatened him on the phone which would in any other context, if it were the defendant's mother she would be accused of obstruction of justice or witness tampering, we did receive that disk, she's not charged with any crime. And, on top of that, when the witness brought that up to Ms. Hand, Ms. Hand's response was well how would feel if this were your child. And, so that makes her a witness. The cases that Ms. Hand cited, she cited three cases . She cited the Brandon (ph) case, the Petri (ph) case, and the Westward (ph) case. As far as I understand those are unpublished cases. The Brandon case -- two of the cases deal with witnesses who have been - - the prosecutors have crossed the line into actually investigating a case or witnesses who just heard what another witness may have said. Ms. Hand crossed a line in this case because she's actually the one who is making the statements to Mr. Weidemeyer. She's the one who's talking to him and only she can say that she did or did not do those things. That makes her a witness. And, so the three cases that she cited are inapposite. They're unpublished, they deal with a prosecutor preparing for a 8 trial by interviewing witnesses, and more importantly they deal with whether the prosecutor's crossed over -- crossed the line into investigating a- -from a prosecutor into an

investigator.

 

THE COURT: How does - - how do her actions prevent you from presenting a substantial - -a substantial defense?

 

MR. ROCKIND: So, if Mr. Weidemeyer - - first of all we don't -- I think that's a fair question, Judge.

 

THE COURT: Thank you.

 

MR. ROCKIND: Our defense - - our defense in the case is that Mr. Remington didn't do it, there's no evidence that Mr. Remington did it. And, for a prosecutor to accuse a witness who is changing his - - to one to fail to disclose, which she has an obligation to do under Brady

that the witness has made inconsistent statements, and more importantly that she's accused a witness of making inconsistent statements, that deprives us of - - that one deprives us of that information. We got it on our own but that's not a defense to a prosecutor that crosses the line and expresses bias against the accused. She literally-

 

THE COURT: Your- -your- -your position is based on the statements that Weidemeyer made to vou?

 

MR. ROCKIND: Our statement- -yes. And- -yes. And, so I have -- I have a couple different options. Tha one -- I believe all of that evidence should have been disclosed pursuant to Brady. Every interview where the witness made inconsistent statements, contradicted himself, or more importantly made statements to Ms. Hand that Mr. Remington didn't deliver drugs, didn't give any drugs to M.r Prika, and that he has no idea what M.r Prika took; that's exculpatory. That was never disclosed to the People - - or to the defense ever. We happened to - we happened to- -to obtain that information but that's not the way this works. The prosecutor has to produce that. And, the second is it's not just her on the receiving - -

THE COURT: And, the remedy though in that situation is to exclude the evidence and/or suppress as opposed to Ding the prosecutor's office, isn't it?

 

MR. ROCKIND: In this case the—I would—I would add a third remedy. The third remedy, which is the easiest is that Ms. Hand who - - remember bias is always relevant. We're always allowed in a case to - - to make an argument that a witness or that an investigation is biased. And, evidence that shows bias or prejudice on the part of a witness is always relevant. That's Powell versus Saint John Hospital, 241 Mich App 64, a 2000 case. Testimony which touches the bias or interest of the 14 witness is always admissible. And, would say in this case Ms. Hand has stepped over the line from being - -remember prosecutors are both advocates and ministers of justice and her actually - - her actually accusing the witness of conflicting statements, her actually interviewing the witness a second time and then - -and trying to get the witness - -and I would say the witness's testimony would be that Ms. Hand pressured him. That's evidence of bias. That's evidence that we have a right to show that the prosecutor actually was sc determined to get Nick Remington that she attempted to pressure a witness into changing his exculpatory statement that Nick didn't do anything wrong and didn't commit a crime to-- to- -to say—to implicate him and try to use different pressuring tactics to do that. That's the remedy is that forget about - - about disqualifying the prosecutor's office, our first issue, again I'm removing that from the table if Ms. Hand is no longer involved in the office. My issue is is that she is a witness. THE COURT: Okay.

 

MR. ROCKIND: I mean any witness that put pressure on a- -anybody that puts pressure on a witness to say one thing or the other has - - is arguably -- has potentially committed a crime but put that aside has actually - - is - - is a witness. And, particularly in this case where it's the prosecutor we would have the right to point out that this case has become so singularly focused with such a lack of evidence in the case, which you want to know what our substantial defense is, so singularly focused with such an absence of evidence that when the eyewitness who was there tells Ms. Hand that he didn't see anything, that Nick Remington didn't do anything wrong, that rather than accept that answer and turn it over, instead what Ms. Hand did was attempt to pressure him to change his story. That's - -

 

THE COURT: Let me hear from Ms. Hand. I understand your argument. Ms. Hand? MR. ROCKIND: Thanks.

MS. HAND: Judge, first of all so Mr. Rockind should also be taken off the case because he clearly has interviewed Mr. Weidemeyer on two occasions. The - - the standard is whether or not the prosecutor injected herself into the investigation. Clearly that did not happen. And, it was woefully, woefully, missing from Mr. Rockind's pleadings in this matter that the interview with Mr. Weidemeyer took place very close in time to the preliminary examination in this case. I sat down with Mr. Weidemeyer as any decent prosecutor would do, as any decent defense attorney would do, in order to find out what the witness is going to say. So, I sat down with him, I had Detective Balog (ph) present with me and went over the statement that he had given Detective Balog and asked him about what his testimony was going to be and whether it was going to be consistent with the statement that he gave to Detective Balog. That's what I did. And, I had a second meeting with him, that's true, and obviously Mr. Rockind knows why because Mr. Rockind has had a second meeting with Mr. Weidemeyer. So, Mr. Rockind again has an interview with Mr. Weidemeyer.

 

THE COURT: Yeah, but Mr. Rockind doesn't have a - -have a requirement to turn stuff over to you, but you've got a requirement to turn stuff over to him. And, you-- MS. HAND: I - -

 

THE COURT: - - the second interview?

 

MS. HAND: Pardonme ?

 

THE COURT: He didn't - - you didn't give him any of the information from the second interview?

 

MS. HAND: The second interview after the preliminary examination? No, Your Honor, not yet, but we haven't gone to Court again. I don't have a requirement to.

 

THE COURT: Don't you have a requirement to give him- -haven't I ordered that discovery be turned over?

MS. HAND: It's not discovery If I’m interviewing - - that's work product, Judge. If I'm sitting down with a witness, prepping them for a case, that is my work product, that is not - -that's not an interview relative to the investigation in the case.

 

THE COURT: Wait, wait, wait. Wait a minute, wait a minute, wait a minute.

 

MS. HAND: Every time I meet with a witness before an exam or a trial, I don't call the defense attorney and sav hey I've met with this witness in order to find out what they're going to testify to.

 

THE COURT: Well, were you meeting with Weidemeyer to go over his testimony or meeting with him to investigate the case?

 

MS. HAND: I was meeting with him to see what his testimony would be.

THE COURT: Did you at some point confront him with a different statement?

 

MS. HAND: I confronted him with the fact that he -- he - -on several occasions he would - - he indicated that he had given -- that the defendant had given the drugs to the decedent, that ' s what he had told Detective Balog. And, when I asked him whether or not he - -how it was packaged, he changed how it was -- how it was packaged. And, then he started to say well he didn't see him give i t to him. But, I didn't call him as a witness, Judge. He's on - - he's - - he could be the defense witness in this case. I didn't call him as a witness for that reason.

 

MR. ROCKIND: Judge, I'm not even following that. So, it sounds like the witness went from saying that Mr. Remington did something to saying that he didn't do anything and there was no disclosure of any of that. That's in the fi r s t meeting. And, the second meeting was they hadn't called Mr. Weidemeyer at the preliminary examination, she had a second meeting with Mr. Weidemeyer. Nobody advised us or apprised us that that meeting had taken place, and i t ' s my understanding that there was even more that was said when Mr. Weidemeyer was even told that if he was lying he could go to prison. He actually indicated he wanted to -- he wanted to plead the Fifth, he was advised that he couldn't plead the Fifth. He specifically and repeatedly denied- -he said the truth is I didn't see him give drugs to Mr. Prika or Mr. Prika take drugs. None of that - -that's exculpatory, that's not 21 protected by work product. That's exculpatory evidence that has not been disclosed. And, I am aware of the concern that Ms. Hand-that she might try to - -to say that somehow I -I had witnesses to the conversations that I had with Mr. Weidemeyer and I had recordings with the - - of the conversations.

 

MS. HAND: As - -as did I. I have witnesses - - MR. ROCKIND: If you have recording's I'd love to hear 'em.


MS. HAND: I don't have recordings, I had witnesses present with me for that very reason.


MR. ROCKIND: And, we don't - - you've never disclosed who the second witness was

 

THE COURT: Wait a minute, wait a minute. So how does Ms. Hand become a witness? Mr. Weidemeyer's going to get on the stand and he's going to say either I saw him give the drugs or I didn't see him give the drugs. And, if (indiscernible) contemporaneous statement that he signs saying he did see them give the drugs at some point?

 

MR. ROCKIND: There's no statement that he signed saving that - - there's no statement that Mr. Weidemeyer signed saying that he gave him the drugs. And that's just a burden to the defense to have to call Mr. Weidemeyer. If Mr. Weidemeyer denied - -

 

THE COURT: Is he - -

 

MR. ROCKING: - - it absolves Ms. Hand of what I believe are her obligations. She's the one that made affirmative statements to Mr. Weidemeyer and I think Mr. Weidemeyer would testify that Ms. Hand put pressure on Mr. Weidemeyer. That's her witness. They're on her witness list.

 

MS. HAND: It's a witness. It's a res gestae witness. I t ' s only my witness if I call the individual to the stand. And, if I call M.r Weidemeyer to the stand and said -- and he states for some miraculous reason yes I saw Mr. Remington give him the drugs and that - - he decides that's going to be his testimony for the day, then Mr.Rockind can certain impeach him with the fact that didn't he tell me on other occasions that he didn't give him the 1 drugs.

 

MR. ROCKIND: Who are my - -let's play that out. Who are - - who are my impeachment witnesses? One would be Mr. Balog and the second would be Ms. Hand. Mr. Balog has -- has already - there was an objection to hearsay when asked Mr. Balog what Ms. Hand said and that would lead Ms. Hand as to - -as the only person that could refute what Mr. Weidemeyer said in that meeting. That makes her the witness.

 

MS. HAND: I t doesn't make me the witness.

 

MR. ROCKIND: You're the witness that heard the inconsistent statements.

 

THE COURT: All right.

 

MS. HAND: I was not alone during the interviews. There are officers present during the interviews, or another investigator present during the interview that can testify to what was said during the interview.

 

MR. ROCKIND: And Mr. Balog - - I can pull the transcript out, I can pull it up here if the Court wants to see it, but at one point when I asked did Ms. Hand confront --

 

MS. HAND: So, I objected. Maybe the next judge won't sustain the objection. It is hearsay.

 

MR. ROCKIND: You objected to your own statement -- Your Honor, she objected to her own statement as hearsay.

 

THE COURT: All right, calm down everybody. Calm down. I mean I think Ms. Hand was doing - -was doing an - - was doing her job as a prosecutor, she was talking to a witness who was going to testify at trial. She decided not to call him for whatever reason. She thought that his testimony was going to be - -you know maybe she should have given you some information, Mr. Rockind, but at this point I'm not about to disqualify the prosecutor or the Prosecutor's Office.

 

MS. HAND: Thank you, Judge.

 

MR. ROCKIND: Thank you, Your Honor. THE COURT: I'm going to deny - -

 

MS. HAND: Your Honor –

THE COURT: - -deny the motion. I think- -I think you can still present a substantial defense, at least as I read the cases, that's what's required. You are presenting substantial defense. So, she's not DQed.

 

MR. ROCKIND: Thank you, Your Honor.

 

MS. HAND: Thank you, Judge. That being said, Your Honor, is there any possibility that the Court could see if Judge Valentine could hear these motions next week sometime?

 

THE COURT: (Indiscernible)

 

MS. HAND: Ms. Collins is - - sorry.

 

THE COURT: I don't know. I mean you can ask her if she wants to. I'm not sure that, you know, she doesn’t have a lot of -- well I don't want to say anything else. I don't know. I mean she doesn't take- -my- -my- -I'm done December - - or January first at noon. So, until then she really doesn't have my docket. You guys can meet with her and ask her, see if she'll set it up, but that's something that Mr. Rockind and Ms. Hand should do together.

 

MR. ROCKIND: If we want to do that.

 

THE COURT: If you want to do it. I'm not - - I'm not - - I'm not going to attempt to speak for either of the judges who are taking my dockets.

 

MR. ROCKIND: Thank you, Judge. I'11 prepare an order denying the motion. I appreciate that, Judge.

 

THE COURT: Okay. Anything else?

 

MR. ROCKIND: I don't know what your plans are for your retirement, but I wish you the best - -

 

THE COURT: Well, I didn't know it was public, it's public now. Judge Potts. I'm joining JAMS with Jerry Rosen and

 

MR. ROCKIND: Oh, wow.

 

THE COURT: We're going to be back together.

 

MR. ROCKIND: Congratulations. That's awesome.

 

MS. HAND: Congratulations, Judge.

 

THE COURT: Thank you.

 

MR. ROCKIND: Good for you. Hopefully -- I hope you're in good health, Your Honor, and I hope you get a chance to - - I had some football analogies ready to go cause I know vour son is football coach but I didn't get a chance to use them. So, you know, I don't know if they're playing or they're not playing. Are they playing?

THE COURT: Yeah, they - they - they played an entire season in Indiana. They were very few games that were called because of COVID. His team at one point was one and two and had given up 100 points in two games. Ended up nine and two and made the state quarter finals, SO.

MR. ROCKIND: Excellent. Good for you. Thank you very much, Your Honor. Take care.

 

THE COURT: Thanks. Good luck everybody.

 

MR. ROCKIND: We ' ll see you down the road.

 

THE COURT: Yeah. You will. I ' ll be around.

 

MS. HAND: Thank you, Judge.

 

THE COURT: Thank you. Thank you for a l l - -both, Ms. Collins, Ms. Hand, Mr. Rockind, i t ' s been a pleasure having you in front of me. I'm going to miss you terribly.

MS. COLLINS: We're going to miss you too, Judge. MS. HAND: We're going to miss you too, Judge. THE COURT: Okay. Have a good one everybody. (December 4 2020 11:34 a.m proceeding concluded.) December 4 2020: Motion Hearing Court Transcripts click here.


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