Public Corruption Detroit Opinion

MI Lawyers Weekly

From Michigan Lawyers Weekly, 8/17/09, page 1

'Wide array of charges' could await ex-monitor

Vague descriptions of 'personal' matters make speculation cloudy

By Douglas J. Levy

In the wake of Sheryl Robinson Wood's resignation as monitor for the Detroit Police Department -- after allegations that she had inappropriate discussions and "personal" meetings with disgraced Detroit ex-mayor Kwame Kilpatrick -- the Baltimore attorney could face criminal, civil and professional charges for her role.

Just what those charges would be, and how many of them would apply, is up for debate.

"Since we don't know ... what this personal relationship was, and, more specifically, how it may have affected her ability to be an impartial monitor of [a federal consent decree], it's impossible to speculate charges," said Allen M. Wolf, a former assistant U.S. attorney who now handles white-collar defense in Lake Orion.

Indeed, Saul A. Green, Detroit's group executive of public safety, would only say that the encounters were "of a personal nature."

And Maria Miller of the Wayne County Prosecutor's Office said that there is "an ongoing investigation regarding matters concerning the Kilpatrick investigation," but would not say whether there would be state charges against Robinson Wood.

Yet, "With any case like this, there would be a concern that the monitor would be facing an investigation by a grand jury, either federal or state," said Steven H. Levin, a Washington, D.C.-based white-collar criminal defense lawyer and former federal prosecutor. "There's a wide array of potential charges."

Can we get a refund?

Andrew C. White of Silverman, Thompson, Slutkin & White LLC in Baltimore said Robinson Wood could face a type of fraud charge for failing to provide "honest and faithful services."

That's because around $13 million was paid to Robinson Wood and her team over the last six years by the city.

And, U.S. District Judge Julian Abele Cook Jr. recently said that the city and police department have met only 39 percent of provisions in the consent decrees and were making "grossly inadequate" progress in correcting the abuses that brought the department under federal supervision.

"It could be as easy as saying, you're taking money to be an impartial arbiter or watchperson over a group, but by your actions, you're showing yourself to be not disinterested," said White, a former federal prosecutor who now does white-collar criminal defense and civil litigation.

Although it was reported that Kilpatrick rallied for Robinson Wood to be hired as monitor, Green said that "there is no way to tell" what impact their relationship may have had on the consent decree that required the city to spend what it did for Robinson Wood and her team.

White said the city would probably have a civil case against Robinson Wood but might find it easier to recoup some of the money through criminal proceedings, if there are any. If there are federal fraud charges brought, the city could be deemed a victim and could use federal criminal restitution statutes to get repaid.

Questioning depth of friendship

There also is the possibility of contempt proceedings from the judge in the police case, which stems from a 2003 lawsuit the U.S. government filed against Detroit for a broad range of police misconduct.

"What she should have done is, if she started engaging in some type of relationship that would compromise her ability to do her job, she needed to make a choice and either terminate the relationship or step aside and let someone else do the job," White said.

But John Freeman, a former federal and state prosecutor now doing criminal defense in Troy, said that it's hard to determine how the depth of their relationship would be a factor.

"What evidence is there, if any, that her professional judgment and actions were in any way influenced inappropriately?" he asked. "Can somebody have a friendship with the mayor, perhaps more than a friendship, and still act in accord with professional obligations? I think, certainly, in theory, the answer is yes."

He added, "Until there's any evidence of her professional judgment being compromised by their friendship, I'd have a hard time seeing where there's any malfeasance. ... If people are hypothesizing that she didn't do her job because she had a personal relationship with the mayor, absent any proof of that, I think that borders on being slanderous."

Karl J. Marlinga, a Clinton Township defense attorney who was former prosecuting attorney for Macomb County, said that it would be difficult to determine whether there's impropriety in a relationship between a city mayor and a federal court monitor.

But, taking a cue from the scandal involving Kilpatrick and former chief of staff Christine Beatty, "it only becomes problematical when they've lied about [the relationship] under oath, and it becomes a matter of perjury. If not for that, it would very much be their own personal matter."

Breaching standards, ethics

White added that, as "the eyes and ears of a federal court," someone like Robinson Wood is "held to the highest standards of conduct."

This means that the former monitor also could face trouble from the Attorney Grievance Commissions in Michigan and Maryland, as both say it is misconduct to engage in conduct involving "dishonesty, fraud, deceit or misrepresentation."

"All of which, as far as I understand, this seems to be, if proved, a clear example of that," said University of Baltimore School of Law Professor Robert Rubinson, who teaches a class on professional responsibility.

He said the fact that the alleged conduct stemmed from Michigan would not stop Maryland Bar Counsel from investigating and pursuing sanctions. He cited Rule 8.5(a), which states that a lawyer admitted in Maryland can be disciplined for actions that happen elsewhere.

Considering her background, including time spent as a federal prosecutor at the Department of Justice, Wolf said it's troubling to consider the personal and professional fallout.

"Any criminal charge against an attorney could affect one's ability to practice law, and irreparably affect her reputation," he said. "Even if there aren't criminal charges brought, the publicity from what has happened will have an effect on her practice."

If you would like to comment on this story, please contact Douglas J. Levy at (248) 865-3107 or douglas.levy@mi.lawyersweekly.com. Dolan Newswire reports contributed to this story.

About the Case

Sheryl Robinson Wood, a partner at Venable LLP in Baltimore, served six years as an independent monitor of the police department, under the terms of a federal consent decree, before resigning July 23.

According to a spokesman for the office of current Detroit Mayor Dave Bing, the Department of Justice provided U.S. District Judge Julian Abele Cook Jr. with text messages from summer 2003 to January 2005 showing that Robinson Wood and Kilpatrick met in Detroit, Washington, D.C., and other cities.

Cook said Wood also improperly discussed with Kilpatrick the city's consent agreements with the U.S. Justice Department's Civil Rights Division to reform police use of force and prisoner treatment. The agreements were reached in 2003, when Kilpatrick was mayor.

As well, the two met at hotels and meals for matters that were not related to the consent decree.

Cook, who is overseeing the consent decree, said Wood had "engaged in conduct which was totally inconsistent with the terms and conditions of the two consent judgments in this litigation."

He has given the city until Sept. 30 to nominate a replacement.

Kilpatrick faced several scandals while in office, most notably obstruction of justice charges for lying under oath about an extramarital affair with Christine Beatty, his former chief of staff. He resigned his post in September 2008, went to jail and lost his law license.

Detroit City Council recently passed a resolution asking the Department of Justice to investigate the relationship between Robinson Wood and Kilpatrick.