State AG must hand off prosecution of ex-judge

By Ed White

Associated Press Writer

DETROIT (AP) -- The prosecution of a former judge charged with allowing perjury at a trial was thrown into doubt last Friday when the Michigan Court of Appeals threw the attorney general's office off the case.

The court said there was an "insurmountable" conflict because an arm of the attorney general's office previously defended the former judge, Mary Waterstone, in a civil lawsuit tied to the same allegations.

The court also said information given to a state investigator by Waterstone during a 2008 interview cannot be used against her.

Waterstone is charged with four felonies, including the concealment of perjured testimony at a drug trial in Wayne County Circuit Court in 2005. A prosecutor and two suburban police officers also are charged.

The charges were filed a year ago, but the case has stalled because of a dispute over the role of the attorney general's office.

The office's criminal division stepped forward to handle the case after the Wayne County prosecutor claimed an obvious conflict and prosecutors in four other counties declined to take it.

In 2008, Waterstone told an investigator that "there isn't any question" that police officers lied at the drug trial. She said she allowed their perjured testimony to protect the safety of a witness -- a paid police informant. Defense lawyers and the jury didn't know about the informant.

Waterstone waived her constitutional right to remain silent, but she was not told she was a target of the state's investigation, the appeals court said.

"This failure to disclose is especially significant because a judge in defendant's position could have a reasonable belief that her good-faith rulings at trial would not subject her to criminal prosecution," the court said.

"She could reasonably assume that the attorney general was not investigating her, but instead remained her counsel" because of the civil lawsuit in federal court, the appeals court said.

A spokesman for Attorney General Mike Cox said an appeal to the Michigan Supreme Court is likely.

"This isn't a fight over the merits of the perjury case. It's a fight over who will prosecute the perjury case," John Sellek said. "We've won this fight in two other courts."

Waterstone's lawyer, Juan Mateo, said the court "did what we thought it should do."

In the 2005 trial, Alexander Aceval was charged with dealing cocaine in suburban Detroit. It ended in a mistrial, but he subsequently accepted a plea deal and was sent to prison.

Published: Mon, Mar 8, 2010