
MOTION FOR RELIEF FROM ORDER TRANSCRIPT
THE CLERK: Your Honor, now calling the case 2019-272593-FC, People v Remington. Wednesday, June 9, 2021 At 9:53 a.m., proceedings convened.) Pontiac, Michigan
MR. KEAST: Thank you, Judge. Marc Keast on behalf of the People.
MR. ROCKIND: Neil Rockind, counsel on behalf of Nicholas Remington.
MR. LEWIS: Good morning, Your Honor. Randall Lewis, co-counsel on behalf of Mr. Remington.
MR. LAVIGNE: Good morning, Your Honor, for the record, Joseph Lavigne. I'm appearing on behalf of non-party Beth Hand. This is our motion for relief from order. motion.
THE COURT: Okay, sir, go ahead with your
MR. LAVIGNE: Thank you. Your Honor, I know the Court's had an opportunity to review the motion and the brief, so I'm just going to summarize. I did not receive a response from any party, so I don't know anybody else's position, so I'd like to reserve a little bit of time to respond. But the nuts and bolts of it are that Ms. Hand is not a party to this case. She's not an employee of a party or a representative in any capacity. At this point she's completely unconnected to the case and is a private citizen. The People, who are the party to this case, are
well-represented, both by the prosecuting attorney and assistant prosecuting attorney Keast. The Court has jurisdiction to direct a party to do or refrain from doing certain things, but with all due respect, the Court does not have jurisdiction to compel a former employee to make an affirmative affidavit of facts as the Court has purported to do in its May 21st order. The authorities are laid out in our brief. I've also raised a couple of secondary concerns beyond jurisdiction, one of those being that the Court is essentially directing fact-finding on behalf of a party, which I think is a dangerous proposition to take. The Court has already fashioned a remedy, has already ruled, yet is still asking for parties to come forward, or for a non-party to come forward and provide a sworn affidavit of facts. The second issue is, that that affidavit is something that can only be done based on personal knowledge, and the proposed affidavit deponent has not had access to this file now for almost six months. There has been very little substantive that has occurred. The Court's basically asking for a page-by-page or set-by-set recitation of what was available and when and what was turned over and when, all of which the People are in a position to answer, but Ms. Hand is not. The primary issue, Your Honor, though, is the jurisdictional issue. I don't believe the Court can compel Ms. Hand to file the affidavit that it has ordered. For that reason, we're respectfully asking that the Court amend its order and that she be granted relief from the order and that the Court strike the requirement that Ms. Hand file an affidavit. You know, I also have raised in the brief the issue that the Court has made some very specific findings about how her actions may have affected the constitutional rights of Mr. Rockind and Mr. Lewis' client. Obviously, that puts her in a further very difficult position with respect to making an affidavit. But I don't believe we even get to that point because I don't think the Court has authority to order her, a private citizen at this point relative to the case, to do anything. So with respect, Your Honor, we are asking that you amend that portion of your order and strike the
requirement of an affidavit from Ms. Hand. respond?
THE COURT: Mr. Rockind, would you like to
MR. ROCKIND: I would. I have no idea I say that after giving it a lot of thought and sort of debating among the team of defense lawyers representing Mr. Remington, I have no idea what Ms. Hand and Mr. Lavigne are talking about. Let me say why I have no idea what they're talking about. You didn't order Ms. Hand to do anything. You ordered the Oakland County Prosecutor's Office, on behalf of the State of Michigan, who's prosecuting this case, to attempt to -- and I thought you came up with a remedy --attempt to solve or attempt to give the State an opportunity to create, to attempt to put some salve on the gaping wound that has been discovered and identified and that's been ultimately pointed out by the Court in the disclosure short comings by Ms. Hand, contained in your order, identified in your order, prior to Your Honor issuing that order and prior to Ms. Hand leaving the prosecutor's office. That's correct hasn't ordered Ms. Hand to do anything. Unless I'm mistaken, I don't believe the Court sent Ms. Hand a subpoena. As far as I know, the Court didn't send Ms. Hand a demand for an affidavit. As far as I know, the Court didn't order Ms. Hand to appear personally and have to answer any questions. What I do believe is that the Court fashioned a portion of a remedy and then addressed another portion to the State, which was, that if you want to move forward with this case, then you need to be able to satisfy the Court, you, Judge Valentine, that there is -- that there are no outstanding Brady issues, outstanding non-disclosures, outstanding failure to disclose, and all the issues that the Court is already aware of that came in the -- during the prosecution of Mr. Remington in the district court and following before Judge Alexander. Unless I missed something, the issue that it seems like Mr. Lavigne and Ms. Hand are attempting to address, is one that really is between the State and Ms. Hand. Your Honor [sic] was directed to the party, which is the State of Michigan, and you provided an order and a direction for the State of Michigan, to attempt to continue to salvage this prosecution. And those are my words, not yours. I know that I'm advocating here, but that's how I interpreted your order. Your order was, there's been some procedural and substantive unfairness, and if the State, one way for the Court to be satisfied that this unfairness is capable of being remedied, you fashioned one issue, which was the one portion of the order, which was the exclusion of the Snapchats in this case. And the other was that Mr. Keast would prepare an affidavit on behalf of the State, and that the State should gather an affidavit from Ms. Hand, because she was the prosecutor who had intimate and personal knowledge of things that occurred on her watch while she was the prosecutor on this file. So I'm not sure what the relief from order is. The prosecutor hasn't sought leave for relief from the order. The prosecutor, as far as I know, Ms. McDonald's office and Mr. Keast, have attempted to comply with the Court's order by having -- I believe Mr. Keast reviewed the matter and prepared a very detailed affidavit. Am I right, Mr. Keast, you did that?
MR. KEAST: Correct, I did.
MR. ROCKIND: He's submitted that and he made us aware of it. And I believe he submitted it to the Court. So I'm not sure what relief from order Ms. Hand is seeking. She, of course, can choose to tell the State, which apparently, she has, that she has no interest or is unwilling or incapable of providing that affidavit. If she's unwilling, incapable, or unable to sign an affidavit and cooperate with the State prosecutor's office, then that is something that the Court will have to deal with, with the State prosecutor's office. But this isn't an issue that even involves -- this isn't a petition – this is really Ms. Hand's attempt to spare the prosecutor's office from having to deal with Your Honor and Your Honor's directions. I mean, I don't know how else to explain that. I mean, to me, the other thing that I thought is interesting, this is between the prosecutor's office and Ms. Hand. It's not between the Court and Ms. Hand. The Court --
THE COURT: Mr. Keast, go ahead, sir.
MR. ROCKIND: I'm sorry, Your Honor, I wanted to say one other thing.
THE COURT: Go ahead.
MR. ROCKIND: I know that Mr. Lavigne referred to Ms. Hand as a private citizen now. And I think that that is a title -- that is a title and a designation that is too conveniently capable of being adopted by somebody who was essentially the captain of a capital case, capital prosecution I'm referring to as a case, for well over a year. And we've already discovered in this case that Ms. Hand is aware of and had -- as I think Mr. Lavigne pointed out, an affidavit would have to be based on personal knowledge. And I think one of the Court's
concerns -- I don't want to speak for Your Honor and of course you'll tell me if I'm overstepping my bounds, I don't want to speak out of turn -- but that there were things that were within Ms. Hand's personal knowledge, exclusively within her personal knowledge regarding the investigation and prosecution of Mr. Remington. Mr. Keast is simply not in a position to be able to answer some of those questions. He doesn't have that personal knowledge. Mr. Balog doesn't have that personal knowledge. Apparently, Mr. Terry Healey [ph] himself, who is purportedly this person who was involved in this, I'll call it an as-yet phantom interview with a res gestae witness, because there's not a single bit of documentation of Mr. Healey and Ms. Hand sitting down with this eyewitness. We know that it took place. It's been conceded by Ms. Hand on the record before Judge Alexander that it took place. Judge Alexander specifically asked her whether she intended to provide it, and she at one point – Judge Alexander said, well, I think it was -- she acknowledged that there was a second interview, and she said we haven't -- the judge said on page 17, "You didn't give him any of the information from the second interview?" This is from December 4, 2020. Ms. Hand's response, "The second interview after the preliminary examination? No, Your Honor, not yet." "Not yet" means it's coming. Now, I will say, as an officer of the court, that I wasn't present at that interview. I think I can speak for Mr. Lewis, who's sitting pensively with his hands over his mouth watching, that he wasn't present for that interview. I know for a fact that Mr. Lavigne wasn't present, because he wasn't involved in the case, and probably had no idea that any of this was going on before he agreed to represent Ms. Hand in this hearing. Mr. Keast, I think I can say with a hundred percent confidence, was not present during that interview. There were only three people who were arguably present during that interview; one was Ms. Hand. The one was Terry Healey, who has apparently no memory of it, and no notes of it, and no information about it. And Ms. Hand conceded that, during that hearing on December 4th before the judge, that the witness had changed his story. And ultimately, in the end, on page 18, he said something that is the most exculpatory thing that could happen in a case in which there's an allegation of delivery, which is -- and then he started to say, well, he didn't see him give it to him. In a case in which there's an allegation of someone giving something to another person, and that person then dying, that is -- can't get any more exculpatory than that. So I don't even understand what we're even talking about here. I don't even think Ms. Hand has to review the file, she could simply decide that she's capable of putting pen to paper in a sworn statement and saying what -- what she -- what her exchanges with Detective Balog were, what information she received from Mr. Balog, when she received it, what she was told. If she's comfortable putting that in an affidavit, and she wants to make that affidavit, then she can. The Court didn't order her to do that. The Court attempted to order the prosecutor's office --
THE COURT: Mr. Rockind, I specifically indicate that she is to provide an affidavit.
MR. ROCKIND: Right, but that is an order directed to the State.
THE COURT: Go ahead Mr. Keast.
MR. KEAST: Thank you, Judge. I was just going to reiterate what the order said, in that the Court -- I'm reading the order right now, the Court does order Ms. Hand to file an affidavit. In my own pleadings I indicated that this file is the property of the Oakland County Prosecutor's Office. As the assistant prosecuting attorney on the matter, I have that file. I have everything that this office has ever had.As I indicated in a prior pleading on May the 5th of this year, I met with the officer in charge and I reviewed his police file. Everything that the police file showed was turned over to me, and in fact turned over to defense counsel, and I outline that, Judge. I do believe that Mr. Lavigne's motion is correct. I believe that it is legally correct and factually correct, for nothing more than the fact that I'm not going to give Ms. Hand this file to review. I can't do that, Judge, she's no longer a prosecutor at the Oakland County Prosecutor's Office. I think that -- I don't know what she would be able to write as far as what evidence there would be to admit. And, you know, Mr. Rockind can interpret it one way, and he's certainly entitled to do that, but as I look at this order, it does appear to me that this Court did in
fact order Ms. Hand to detail a list of all evidence in the case. And as I stated, Judge, I don't think that she's in a position to do that, and I believe Mr. Lavigne amply laid that out in his motion.
MR. ROCKIND: But isn't the Court directing that-- I mean, aren't we just sort of quarreling or quibbling over, I guess a dot on a page, which is on page 8. I know the Court's order is directed to the State.
MR. KEAST: But, you know, it's dangerous to play fast-and-loose with interpretation of the Court's order. Only the Judge can interpret the order --
MR. ROCKIND: I understand. What I'm saying is, this order wasn't -- this order wasn't served on Ms. Hand. She wasn't ordered to appear. This was an order that was directed to the State. The State is the party. And if the State can't provide, can't gather an affidavit from the former assistant prosecutor about the case, then the State can't satisfy the Court and its concerns about Brady evidence.
MR. LAVIGNE: May I respond, Your Honor?
THE COURT: Go ahead, Mr. Lavigne.
MR. ROCKIND: I mean, I don't want to even get into all of the implications why -- I mean, I think --
THE COURT: Go ahead, Mr. Lavigne.
MR. LAVIGNE: Thank you.
MR. ROCKIND: -- Ms. Hand is currently a practicing lawyer. I think she's still a lawyer --
THE COURT: Mr. Rockind, let Mr. Lavigne speak.
MR. ROCKIND: Sure, Your Honor.
MR. LAVIGNE: Thank you, Your Honor. I will agree with Mr. Rockind about his indications of the lack of notice and service on Ms. Hand. I think the Court's already indicated, and Mr. Keast has, the reason that we're here, I'm not trying to waste anybody's time, but I read the order to say the Court orders that an affidavit from both the former assistant prosecutor Hand and the current assistant prosecutor Keast shall be provided. So my reading of the order is the reason that we filed this motion, which is I don't believe it is limited to its application to the current Oakland County Prosecutor's Office only. So I will tell the Court, we're not trying to intervene or spare the prosecutor's office any kind of an obligation, as is suggested. The Court can, and it sounds like has, satisfied any outstanding Brady issues through the party to the case, the People. Mr. Rockind talked about the affidavit or the supplemental document filed by Mr. Keast. I haven't seen that --
THE COURT: Mr. Lavigne, I don't think that's correct. The problem is that the violations that are alleged, and the violations that have been agreed to by the prosecutor's office, involve Ms. Hand. How can I secure the satisfaction that the evidence has been produced when there has not been information put in the file? According to the arguments of Mr. Rockind, and the information that Mr. Keast has now gathered, there are interviews with no notes, there's information that was -- that was given, allegedly, to Ms. Hand, that hasn't been provided for. How can I put that on the prosecutor's office, that doesn't have the information? And how could the Court not have jurisdiction over Ms. Hand, in a capital murder case, felony case, on behalf of the Oakland County Prosecutor's Office, who didn't put things in the file, allegedly?
MR. LAVIGNE: Well, I think that the Court can fashion the remedy that it has and it can order the prosecutor's office to do --
THE COURT: What do I know -- what is there that no one knows of? I think that with regard to the information that's in the file, that's sufficient. That's not as far as the Brady violations that are alleged go. It's information that hasn't been put anywhere. We have reports that were drafted 18 months after information was given to the prosecutor's office. How do I know, how can I secure that information, for the due process of the defendant and for the benefit of the community, without Ms. Hand?
MR. ROCKIND: And, Judge, can I add, for Mr. Lavigne's benefit, that the report that was generated 18 months after the interview was prepared at the direction of Mr. Keast, who saw that there was another hole in the disclosure issues with Ms. Hand and Mr. Balog. He saw that and directed that Mr. Balog, to the best of his ability, prepare a report 18 months later to document an interview that Mr. Balog and Ms. Hand had with a witness, in which, again, exculpatory evidence was – that evidence was exculpatory. I mean, there are no contemporaneous notes. I don't know if Mr. Lavigne knows the file, but Ms. Hand objected to her own statements to the witness during the preliminary examination, which we would argue were statements that were potentially admissions by a party opponent or weren't even offered for the truth of the matter asserted, but Ms. Hand objected. Then there's no report prepared. And that's not the only issue. I mean, we've detailed --
THE COURT: So Mr. Lavigne, as your argument goes, Ms. Hand is a private citizen now; so is she
entitled to be called as a witness at the preliminary exam?
MR. LAVIGNE: I certainly think she -- in terms of entitled, I certainly think she has the capability to be subpoenaed. Whether she can be compelled to actually testify, I think is a different story.
THE COURT: Well, why wouldn't she be compelled to testify? Tell me, why wouldn't she be able to be compelled to testify?
MR. LAVIGNE: Well, there could be a number of different reasons. You could be talking about work product issues. You could be talking, quite candidly, about Fifth Amendment issues, in light of the findings that the Court has made. I think everybody on this motion hearing that has a P-number would understand the implications of what the Court or somebody examining her on the stand could potentially be trying to seek. And I'm not conceding that she's done anything that would have to, but the question is, could the question have any tendency. I think you have those issues as well. I mean, it's an interesting academic question. I'd be happy to, you know, go into it further with Your Honor, but I think that if the Court decides to allow the parties to go that route, they have that right, and we could address that at that point in time before the district court, if that's what happens. But I don't know that the Court, again with all due respect, can compel an affidavit from a non-party as to facts that the Court is ordering in its May 21st order.
MR. ROCKIND: I mean, it sounds like --
THE COURT: But then at the same time, you believe that she could be summoned or subpoenaed to go and testify, but that she could waive -- or she could raise some issues, such as her Fifth Amendment, which, sir, I'm not sure that -- that the factual questions that are asked, that she'd be able to have a Fifth Amendment right. And when you say work product, this isn't work product, sir. These are Brady violations. This isn't work product.
MR. LAVIGNE: With respect, Your Honor, I'm doing the best I can to try to address the Court's hypothetical.
THE COURT: I understand, Mr. Lavigne.
MR. LAVIGNE: And as I indicated before, I'm not conceding any issues on her behalf. But in terms of the Court's query about, could she be subpoenaed, I think she could at least be subpoenaed. And then where it goes from there, I think is an open issue, let's say, at this point.
THE COURT: Anything else?
MR. LAVIGNE: Just ask the Court to grant the motion. If the defense decides they want to subpoena Ms. Hand to testify for exam, we'll address it at that point. But at this point there's no basis for the Court to order the production of the affidavit.
MR. ROCKIND: I have to back up. Why is it that the defense has to carry the water here? I mean, the Court has already made its finding regarding Brady violations. The State has conceded that there were Brady violations committed by Ms. Hand. There are other --
MR. LAVIGNE: Why does there have to be an affidavit?
MR. ROCKIND: Because the Court, I think, was trying to come up --
THE COURT: There's still a case pending. There is still a case pending. There are still issues that are outstanding. If this is a case that's going to be pursued, it needs to be -- everything needs to be presented appropriately as if there is no Brady violations. Now how do we do that if there's things not in the file?
MR. ROCKIND: So the answer to Mr. Lavigne's question, he wanted to know why there was an affidavit, or why the Court -- obviously I can't get into the Court's thinking, but we've had enough conversations with the Court and enough arguments before the Court that I believe the Court was trying to fashion a remedy to address what evidence Ms. Hand was aware of and what was out there that was not contained in the file, and that an affidavit from a lawyer, with all of the potential repercussions that an affidavit has with it, being a statement, a statement under oath, that that would potentially address that issue. I think we lost the Judge there for a second.
THE COURT: Nope, I'm right here. The Court is going to take this under advisement.
MR. ROCKIND: I was going to say, Judge, that I don't think that Mr. Lavigne is right, that the defense should have to call Ms. Hand. If Ms. Hand is going to have to -- if she can be compelled, she can be compelled by the Court. If she wants to assert a privilege, she can assert a privilege. And you know, if she wants to plead the Fifth, she can plead the Fifth, never going to deny anybody the right to plead the Fifth if that's what they believe is in their best interest. opinion.
THE COURT: Okay. Thank you. I will issue an
MR. ROCKIND: Thank you very much, Your Honor.
MR. KEAST: Thank you, Judge.
MR. LEWIS: Thank you, Your Honor.
MR. LAVIGNE: Thank you, Your Honor. Your Honor, if I could make one request of the Court. The efile system that changed over on Monday only allows parties to the case to receive electronic service. I filed a document yesterday, a SCAO form specifically requesting to be added to the case so that I could receive eservice. That was rejected by the court clerk --
THE COURT: I'll have you added, by anything that's filed, Mr. Keast and Mr. Rockind, you are required to serve Mr. Lavigne.
MR. KEAST: Judge, would you like me to serve Mr. Lavigne the affidavit that I filed?
THE COURT: Yes, please. Thank you.
MR. LAVIGNE: I just wanted everybody to know I wasn't connected with the case any longer, so I appreciate that, Your Honor.
THE COURT: Thank you.
(June 9 2021 10:17 a.m proceedings concluded.)
June 9 2021: Motion for Relief from Order Court transcripts click here.
July 21 2021: OPINION AND ORDER REGARDING FORMER ASSISTANT PROSECUTOR'S MOTION Judge Valentine click here.
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