13th Circuit Court Judge Thomas Power was nationally criticized this week when he gave a woman a longer sentence than others because she was pregnant. The Court of Appeals called Power extremely biased. Judge Power said, “Yeah, so?”
We here at Dirty Traverse pointed out several other cases where Judge Power threw up a middle finger to the laws and constitution. Someone commented by pointing out another case from 2016 where he was overturned. Since that predated Dirty Traverse, let’s talk about that now.
Michael Gary Cohen. No, not that Michael Cohen, Cooley Law School’s finest, but a local, different Michael Cohen.
The prosecutor accused Cohen of sexually assaulting coworkers at the Dairy Queen by Pirate’s Cove. The jury found him guilty. The Court of Appeals overturned it because of errors in admitting evidence. Judge Power is the one who made the errors. Grand Traverse County Prosecutor Noelle Moeggenberg is the one who asked Power to make the errors.
The Court of Appeals said the problem was that Power essentially allowed a smear campaign. He allowed the prosecutor to put in stuff that wasn’t relevant that just painted Cohen as a bad person. We don’t convict based on character in this country. We don’t let the prosecutor march witnesses in to talk about what a bad person someone is and then decide whether they deserve prison.
So the court rules require the prosecutor to give the defendant and the court a heads up when they want to admit evidence of other acts by the defendant that aren’t a part of the charges. And the prosecutor has to have a good reason that it makes the person more likely to be guilty. It can’t just be that they’re a bad person.
The Court of Appeals said that there was a problem with the notice the prosecutor gave: “The witnesses did not offer the testimony represented by the prosecutor.” Moeggenberg said that the extra witnesses were going to say things that the defendant had said. What the witnesses did was say things that the defendant said, and then the witnesses guessed at what the defendant meant by those statements. The witnesses read things into the comments and added meaning that the defendant hadn’t really said. The Court of Appeals said you can’t put words in someone’s mouth, and that the prosecutor’s notice of other evidence needs to accurately state what the other evidence is, and not be misleading.
So my question is how much of that mistake was intentional on the part of the prosecutor’s office? Did they know that the witnesses weren’t going to say what they represented to the court that they were going to say? Did they know that the witnesses were going to add “meaning” to the defendant’s statements? Did the prosecutor ask probing questions and prompt the witnesses to provide that meaning? If not, did they not know because they failed to do their due diligence in advance of the trail?
The case ended up quietly getting dismissed. Not only that, but the defendant had to file a motion to get the court to return the fines and costs that he had already paid. It appears from the ledger that the prosecutor’s office opposed the defendant getting his fines and costs back even though his conviction was thrown out. They also didn’t complete an order discharging the guy from probation until 8 months after his conviction was thrown out.
Cohen has been wrapped up in this court case for three years. For something he was never even convicted of.
Also, one thing I found in the court record that was interesting was that Judge Power refused to allow the defense to discover evidence of text messages. We don’t know what was in the text messages, but it may have been probative. According to the Court of Appeals opinion, the text messages were pretty central to the entire thing. Perhaps that would have been its own grounds for appeal if the other hadn’t been successful.