Disqualifying Judge Timothy Kelly

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Attorney Ed Czuprynski filed a major action seeking the disqualification of Judge Timothy Kelly from all of his cases based on Kelly’s history of animosity and the judge’s abuse of his power.

The disqualification motion is supported by a 36-page affidavit (sworn statement) signed by Attorney Czuprynski that provides documented and specific instances of Timothy Kelly abusing his power: First, as a prosector. Second, as a judge.

For an eye-opening story, read the affidavit and gain insight on our CORRUPT Court system.

 AFFIDAVIT SUPPORTING MOTION TO DISQUALIFY JUDGE TIMOTHY KELLY

The undersigned, Edward M. Czuprynski, being duly sworn and solemnly affirmed, hereby states the following based on personal knowledge, primarily, and on information and belief, where noted:

  1. Licensed to practice law in 1982, I have maintained a sole practice throughout my career in my hometown of Bay City, Michigan. For the past 15 years, since his ascendency to the bench, I and the clients I represent have endured much abuse from Timothy Kelly, a district court judge, whose animus toward me adversely affected the rights of my clients.  The abuse became particularly acute and transparent when I challenged Judge Kelly’s re-election a few years ago, as detailed below.
  2. But since the adverse impact on my clients in 2012 flowed from my challenge to Judge Kelly’s re-election, I chose to refrain from seeking his disqualification from my cases until I had independent evidence, and obviously egregious evidence, of how his malice toward me personally is harming my clients. I believe such additional evidence is now available.
  3. What follows, then, is a chronology of facts in support of my motion to disqualify Judge Timothy Kelly from this case because he is prejudiced against me, personally and as an attorney; and, as a consequence, the clients I represent.   Based on objective evidence detailed herein, and reasonable perceptions, Judge Timothy Kelly has willfully failed to adhere to the appearance of impropriety standards set forth in Canon 2 of the Michigan Code of Judicial Conduct.  MCR 2.003(C)(1)(a)(b).
  4. In 1992, Timothy Kelly, then an assistant prosecutor, launched a full frontal assault on me, professionally, on both the state and federal levels in an effort to destroy my decade-long career as a criminal defense attorney. At the time, assistant prosecutor Timothy Kelly was motivated, politically, by my successful effort to publicly expose prosecutorial errors and political influence in the Office of the Prosecutor. Since then, via a combination of subtle and overt actions, his animus continues to the present.  Of particular concern, however, is the way Judge Kelly abuses my clients’ rights through abuse of judicial authority.  Hence, the necessity of this motion to disqualify him from all my cases.

1992 Federal Prosecution

  1. In 1992, as a byproduct of my long term effort to disrupt the politically tainted prosecutor’s office of Bay County, I became the only person in U.S. history to be federally indicted for the possession of a mere 1.6 grams of marijuana (the rough equivalent of 2 non-filter cigarettes) in a case not involving an international border crossing or federal property. Convicted, and then sent to a federal prison, I appealed and the story went national,  —  written up in The Atlantic, S. Today, and other national publications.  One professional magazine, The Champion, published by the National Association of Criminal Defense Lawyers, printed a series of articles by Barry Tarlow, a nationally prominent Los Angeles criminal defense lawyer, that twice awarded Timothy Kelly its annual “Hall of Shame Award”.   In the first of three stories, Judge Kelly won his first “Hall of Shame Award” in the August 1994 issue of The Champion for his involvement in trying to destroy me in 1992.  The first article was based on my initial victory in the first of three reviews and rulings by the U.S. Court of Appeals.  Since the article provides an excellent, objective, and detailed summary of Timothy Kelly’s  involvement in the Federal case of 1992, and some of the facts to support the long history of his animosity toward me, I am providing some excerpts from it that I can attest as being accurate and truthful, as follows:

Excerpt from The Champion – August, 1994

“Hall of Shame Award: Lawyer Prosecuted And Imprisoned For Possession Of 1.6 Grams Of Marijuana” 

– Emphasis added –

(a) “In United States v. Czuprynski, 8 F.3d 1113 (6th Cir. 1993), the Sixth Circuit reversed a marijuana possession conviction on the grounds that a search warrant for Edward Czuprynski’s law office was neither supported by probable cause nor based on a good faith belief of probable cause. One fact that distinguishes this otherwise unremarkable case as a worthy recipient of the coveted Hall of Shame honors is that government lawyers apparently had nothing better to do than waste our scarce tax dollars prosecuting a case based on two joints.”

*****

(b) “This is perhaps the first ever federal indictment for an individual charge of marijuana possession not involving either federal property or an international border crossing. It reveals a truly chilling abuse of power. In their zeal to obtain a conviction, federal prosecutors endorsed the purposefully deceitful manner by which state investigators obtained the search warrant [1] that was invalidated on appeal.  Perhaps the most disturbing aspect is that this case illustrates how unsupervised prosecutors [2] and investigators who are politically and vindictively motivated can destroy an individual’s life and livelihood.”

(c) “Ed Czuprynski was a successful criminal defense lawyer in the Bay City, Michigan area. His problems apparently began in February 1992 when he fired his associate Judith Sawicki for cocaine abuse.  Sawicki is an admitted user of nearly every scheduled controlled substance.  Soon thereafter, Sawicki filed assault charges against Czuprynski.”

(d) “About a month later, Bay County Assistant Prosecutor Timothy Kelly attempted unsuccessfully to obtain a search warrant for Czuprynski’s office, apartment, and car.  Two district judges of the 74th District Court in Bay City flatly refused to sign the search warrant, which was submitted along with an affidavit in which Sawicki stated that some of her books, papers, and work product were still inside Czuprynski’s office.”

(e) “Nearly two weeks later, Kelly again tried to obtain a search warrant for Czuprynski’s home and office, but this time in connection with a drug investigation that was spurred by Sawicki’s new allegations.  In the warrant’s supporting affidavit, Sawicki alleged for the first time that she used to smoke marijuana with attorney Czuprynski in his office on a daily basis.  However, Sawicki “did not recount any specific dates for these events.” United States v. Czuprynski, 8 F.3d 1113 at 1115 (6th Cir. 1993).  Sawicki also stated that she had previously purchased marijuana from Czuprynski in his office, but she could only vaguely place these events during sometime “in January or February 1992, sometime after Christmas.” Id. Moreover, the affidavit “did not support an inference that Sawicki had seen Czuprynski since the date she [was] fired, … almost a month  prior to the affidavit.”Id.

(f) “Prosecutor Kelly tried to bolster the warrant application by submitting a supporting affidavit from Officer Greg Tait of the Michigan State Police in Bay City, as well as two warrant returns for small amounts of marijuana found in Czuprynski’s possession back in 1974 and 1983. Czuprynski, supra, 8 F.3d at 1115.  However, Tait’s affidavit provided “no evidence corroborating Sawicki’s reliability or credibility in any way.”Id. Furthermore, the 1974 state conviction occurred when Czuprynski was still in his mid-20s, prior to his legal career.  As to the 1983 search, a jury exonerated Czuprynski of state marijuana possession charges in 1984. Id at 1116.”

(g) “The enormous deficiencies in the warrant application were apparent to both Tait and Kelly. The record reveals that Tait knew that “other police departments had declined to involve themselves with Sawicki’s complaint.” Czuprynski, supra, 8 F.3d at 1115.  Tait also resubmitted the application to one of the 74th district judges who previously declined to sign the records warrant, and that judge again refused to issue a warrant.[3]

(h) “Prosecutor Kelly was undeterred.  He advised Tait to submit the application to Magistrate Boes, who ultimately signed off on the so-called warrant at issue.  However, the record indicates that Magistrate Boes had previously served as the Bay County purchasing agent at the same time that Czuprynski was serving as the [elected] county’s auditor, and that Czuprynski attempted to have Boes fired from his position for alleged improprieties relating to certain sweetheart county works contracts. Id. Moreover, Tait admitted that he knew “hard feelings” and “disputes” existed between Czuprynski and the Bay County Prosecutor’s office. Id.

(i) “In striking down the search warrant, the Sixth Circuit concluded that the “warrant application in this case not only lacks information supporting Sawicki’s truthfulness, but also it gives rise to the probability that Sawicki was making her … allegations with a bad motive after Czuprynski fired her.” Czuprynski, supra, 8 F.3d at 1118. Interestingly, in Czuprynski’s separate trial on the assault charges alleged by Sawicki, he was acquitted and the trial judge remarked that Sawicki was “obviously a liar.Id. at 1115. The Sixth Circuit strongly condemned prosecutor Kelly’s effort at “judge-shopping” to find a personally vindictive magistrate to issue the warrant against Czuprynski. Id. at 1118. The U.S. government’s decision to make a “federal case” out of Czuprynski’s possession of minute amounts of marijuana represents an endorsement of the state officials’ disreputable investigative efforts to obtain the search warrant.”[4]

(j) “Why did this absurd prosecution become a “federal case?” Edward Czuprynski sees the reason as petty political vindictiveness.  After the two joints were found in his office, two weeks went by without any arrest or charges filed. When Czuprynski subsequently learned about the prior unsuccessful attempt to obtain a records warrant for his office, he filed a grievance claim against both Sawicki and then-Bay County Prosecutor George Mullison.  Within days after the claim was filed, Mullison turned Czuprynski’s case over to the feds, where a number of former Bay County Assistant Prosecutors now worked as Assistant United States Attorneys.[5] If Czuprynski’s string of bad luck was not long enough, the federal judge … was none other than a former prosecutor, who once served as a colleague of George Mullison on a [state] prosecutors association’s executive board.”

(k) “The indictment and conviction led to a 51-week suspension of Czuprynski’s law license. The Sentencing Guidelines’ range for his conviction was 0 to 6 months, but the trial judge departed upwards and imposed a 14-month sentence based on his 1984 acquittal on state marijuana charges and the two-decade-old state marijuana conviction. Czuprynski, supra, 8 F.3d at 1116.”

*****

(l) “In oral arguments before the Sixth Circuit, Judge Boyce Martin, Jr., himself a former United States Attorney, called the federal government’s prosecution of Czuprynski “the stupidest waste of public money…I’ve ever read about… [A]n institution…that allows for this man’s prosecution is a sad commentary.” Perhaps Judge Thomas Wiseman, Jr., summed it up best when he remarked, “Everything about this case has a distinct, bad odor.”

(m) “This case has been devastating to Czuprynski. He was forced to shut down his practice for 13-14 months.  His personal finances were depleted, and he was imprisoned without bail for a total of 7 ½ months while fighting his appeal.[6]

*****

(n) “…After his conviction was overturned, [Czuprynski’s] law license was reinstated and he has slowly begun to rebuild his legal practice…”

*****

(o) “However, Czuprynski has suffered a recent set back. The Sixth Circuit has granted the government’s motion for an en banc rehearing. United States v. Czuprynski, 16 F.3d 704 (6th Cir. 1994). This is a remarkable decision since such rehearings are granted in less than one percent of cases in that circuit. See Bay City Times. March 4.1994.  The order for rehearing also vacates the panel’s prior opinion, thereby reinstating Czuprynski’s conviction at least for the time being.”[7] (See Exhibit A., attached, with a copy of The Champion article published in August, 1994 entitled “Hall of Shame Award: Lawyer Prosecuted and Imprisoned for 1.6 Grams of Marijuana,”  followed by a copy of the court of appeal’s decision of that ruling in 1993).

End of Excerpt

  1. My federal case was reviewed by the U.S. Sixth Circuit Court of Appeals three (3) times, once en banc (as referred to in the last paragraph of the above excerpt) – before my conviction was ultimately overturned and the case dismissed after three-and-a-half years.  But as the Champion article mentioned, I lost my law license for 51 weeks, and I went through bankruptcy and had to start my law practice all over again from scratch – all as a direct consequence of the determined and prejudicial efforts of Timothy Kelly, as demonstrated by the record of facts.
  2. When all 15 judges of the full U.S. Court of Appeals for the 6th Circuit met en banc to review my case, it reversed the three judge panel’s decision in a 11-4 ruling and reinstated my conviction, which was ultimately thrown out again. That published en banc decision prompted The Champion to publish its second article about my federal case that drew from the en banc Again it focused on Timothy Kelly’s vindictive and destructive efforts to destroy me; and, for the first time ever, the magazine bestowed its “Hall of Shame Award” to a repeat recipient (Timothy Kelly included).  Accordingly, I’m including an edited excerpt of the second Champion article, as follows:

Excerpt from The Champion – September/October 1995

                           “Thou Hath No Shame:  The Czuprynski Affair”

       – Emphasis Added –

(a) “Never in the illustrious history of the Hall of Shame Awards has any case or individual earned the privilege of being named a repeat “winner” — until now. As we reported in the August 1994 issue of the RICO REPORT, the United States Attorney’s Office for the Eastern District of Michigan prosecuted and convicted successful Bay City, Michigan criminal defense attorney, Edward Czuprynski, in 1992 for possessing 1.6 grams of marijuana.”

(b) “This case garnered Hall of Shame honors not only because of the miniscule amount of contraband involved (about 1/28th of an ounce), but also because it was perhaps the first ever federal indictment for an individual charge of marijuana possession not involving either federal property or an international border crossing.  Moreover, the prosecution’s use of evidence obtained pursuant to a state search warrant that was later thrown out by a panel of the Sixth Circuit, United States v. Czuprynski, 8 F.3d 1113 (6th Cir. 1993), represented the federal government’s endorsement of the state officials’[8] unlawful investigative efforts.”

(c) “However, what propelled this case over the current slate of other worthy Hall of Shame candidates is the fact that the prosecution, apparently unchastened by the court of appeals’ rebuke and obsessed with destroying Czuprynski, petitioned for an en banc rehearing.  To the surprise of many local observers, such a hearing was granted last year.  The Sixth Circuit grants en banc rehearings in less than 1 percent of its cases. See, Bay City Times, March 4, 1994. Furthermore, in what can only be described as an unexpected turn of events, the en banc court decided 11-4 to reverse the panel’s opinion and reinstate Czuprynski’s conviction. United States v. Czuprynski, 46 F.3d 560 (6th Cir. 1995)(en banc)…”

*****

(c) “…One crucial question that the en banc majority opinion did not address, but which bears on the good faith and Czuprynski’s selective prosecution claim which the panel will consider on remand, is why did this case ever become a federal prosecution in the first place?…”

*****

(d) “…In a strong dissent, Judge Boyce Martin, who authorized the panel’s majority opinion, took notice of this disturbing fact, Judge Martin opined that the state officials’ 8 persistent “judge-shopping” and the federal government’s unprecedented prosecution of Czuprynski for essentially two joints suggest either a larger evil governmental motive or vindictive pettiness gone amuck.  In the dissent’s view, the cop who executed Czuprynski’s warrant, officer Tait, was “being taken advantage of by the local prosecutors.[9], who clearly, along with Czuprynski’s former employee, intended to do whatever they could to remove Czuprynski from his law practice.” United States v. Czuprynski, supra, 46 F.3d at 567-68 (Martin, J., dissenting).”

(e) “With particular regard to the search warrant at issue, Judge Martin concluded that the court should have evaluated the bad faith conduct of the prosecutorial agencies as a whole,[10] not only that of officer Tait.  One of the purposes of the exclusionary rule, he observed, is “to preserve the integrity of the judicial process by not having the judiciary, as one arm of the government, condone the wrongful conduct of another arm of the government.”United States v. Czuprynski, supra, 46 F.3d at 565, quoting United States v. Rodriguez, 596 F.2d 169, 174 (6th Cir. 1979).  In this case, Judge Martin believed that the prosecution (including specifically the state officials8 ) acted “in a way we should want to prevent in the future,” and the court ought not place its imprimatur upon such behavior by characterizing it as “good faith.” Id….”

*****

(f) “…[During oral arguments], Judge Martin pointed out that the United States Attorney’s Office in most other jurisdictions adopts a large minimum weight threshold for taking marijuana cases, and he pressed [Asst. U.S. Attorney] Nesi to identify any other federal prosecution for 1.6 grams of marijuana. Unable to respond, Nesi admitted, “I will say to you, I don’t pretend that we go around prosecuting 1.6 grams of marijuana.  We don’t!”  Analogizing to tax protester prosecutions, AUSA Nesi confessed that Czuprynski was indeed singled out because he was a successful attorney: “[We wanted to eliminate] the public perception that…you can get away with it [marijuana charges] if you are a middle-class lawyer.”

(g) “Judge Martin was deeply disturbed by Nesi’s answer.  In his dissenting opinion, he warned that the court “cannot condone the type of prosecutorial overkill that has taken place here; it only points out the great expense of this Court’s time and resources in rehearing en banc a case involving such an insignificant amount of marijuana.”United States v. Czuprynski, supra, 46 F.3d at 566. At oral argument Judge Damon Keith also expressed his grave distress: “I am disturbed with the awesome power of the United States Attorney’s Office when they go out of their way as it is here.”  (See Exhibit B, attached, a copy of the second Champion article published in the fall of 1995, with the published decision of February 10, 1995 attached).

End of Excerpt 

1992 State Prosecution

  1. Around the same time Timothy Kelly played a major role in the federal prosecution in 1992, he also initiated a state prosecution against me as well, charging me with assault and/or assault and battery against an associate attorney whom I fired in February of that year (1992), as mentioned in The Champion article (see Paragraph 5, sub-paragraph i at pg. 3, infra).  Timothy Kelly signed the criminal complaint himself and took full charge and control of the case.  (See Exhibit C, attached, a copy of the Complaint dated March 19, 1992, bearing Timothy Kelly’s signature).
  2. The state prosecution, like the federal one, was a sham. Timothy Kelly mounted a strong and obviously targeted effort, even requiring me to file a motion and secure a court order to obtain a copy of the affidavits that were used to obtain the search warrant on my office and home. Such supporting affidavits are routinely provided without court intervention.  (See Exhibit D, attached, a copy of the “Opinion and Order” dated May 26, 1992, requiring Timothy Kelly to provide me with copies of the supporting affidavits).
  3. Timothy Kelly’s star witness during the state trial was Judith Sawicki, the associate counsel I fired for non-performance and drug abuse in February of that year. Sawicki provided inconsistent and rambling testimony. At the conclusion of the trial, my defense attorney, James Gust, moved for a directed verdict, asking the court to enter an acquittal because a reasonable person taking all the evidence into consideration, and even in the light most favorable to the prosecution, could not find that the elements of the crime charged against me had been committed beyond a reasonable doubt.  Timothy Kelly opposed the motion for directed verdict, stating “There’s more than ample testimony to convict the Defendant and go to the jury, so we would ask that the motion be denied.”  (See Exhibit E, attached, Page 5 of Excerpt I – from the jury trial on December 4, 1992, File # 92-SM-308-A).
  4. The visiting judge by special assignment, the Honorable Edward Keller, asked Kelly what exactly the assault was that he was claiming in the charge against me. Kelly responded that there were several, to which the court noted there was only one assault charge against me. “Are you trying to throw a bushel basket to the jury, saying just try to find one in this basket somewhere?” he asked. (See Exhibit E, attached, Page 5).
  5. Following some colloquially between the judge and prosecutor, where Timothy Kelly advanced three different theories by which he could convict me for assault and battery, the judge asked “What if juror in seat number one settled on the first theory, and juror in seat number two settled on the pushing to the floor theory, do you have a unanimous verdict?” Kelly responded that he believed a unanimous verdict for assault would have been obtained. (See Exhibit E, attached, Pages 7-8).
  6. In response, the judge voiced his disagreement, noting how the fourth example Kelly provided for a basis of a jury verdict of assault and battery was the slamming of a door. He noted every witness who testified, including Sawicki, said the door slamming was not an assault by their description of it. “There is no way that could be characterized as an assault.  It was an accident in everybody’s view, including Ms. Sawicki’s,” the judge emphasized.
  7. Judge Keller further stated his belief that three theories could raise an assault question. But he also felt it was inappropriate and unpermitted for a jury to be sent into the deliberation room saying “fish around in this bag of facts and if one of you comes up with one assault, another comes up with another assault, and between you, as you all think, some assault occurred, it doesn’t matter which one it was, come back with a verdict.” (See Exhibit E, attached, Page 7).
  8. The judge instructed Timothy Kelly to determine which act it was that he was alleging as the assault as charged against me, so the jury would know what they’re deliberating. “Because they have to be deliberating on the same act as the crime charged here. Otherwise, there’s different crimes – the verdict would be on different crimes.”  He further ordered Kelly that by the time of instructions and closing argument, he be ready to tell the court and the jury what act it is that he was asking the jury to deliberate on.  “If you chose not to charge more than one count, that’s a choice that was made many, many months ago, one that you now have to decide.  If you haven’t before been able to decide which charge you think you can prove, now you’re going to have to decide on it,” the judge concluded before going into a brief recess.  (See Exhibit E, attached, Page 8).
  9. Following the recess, Timothy Kelly asked to go on the record for a moment before the jury returned so he could revisit the court’s last ruling about requiring him to elect between which of the offenses occurred. “I believe that the jury would be able to look at all of the events and make a determination as to which of those is an assault. So my feeling is, your Honor, that in order to avoid an election, I don’t believe that I should, is to break it down to the jury on the jury verdict form (sic).”  Kelly continued, “There is no prejudice to the Defendant, he knows all along what the facts are.  He knows what the allegations are and…they’ve been able to prepare and defend on it from beginning to end.  It’s not like something new came up.”  (See Exhibit E, attached, Page 9).
  10. The court responded by noting that during at least two of the five pre-trial hearings held on my matter, he had asked if the pleadings were in order and all the parties agreed that they were. “Essentially,” the judge stated in addressing Timothy Kelly, “what you seem to be doing here is to ask to amend the pleadings now to add two more counts of assault or assault and battery. Is that what you’re doing?,” he asked.  (See Exhibit E, attached, Pages 12-13).
  11. Denying that this is what he attempted to do, Timothy Kelly claimed “It’s one continuous event although it – you know, different things happen.” (See Exhibit E, attached, Page 12).
  12. Judge Keller’s retort: “I understand that might be preferable to the prosecutor. But frankly, Mr. Kelly, this entire trial has seemed like a prosecutor in search of a case. I think this is another example of it. The law requires a verdict to be returned beyond a reasonable doubt, that the jurors agree on that verdict.  There is one charge here.  You’re not requesting to amend your complaint.  You’re requesting to ask the jury to consider many possible different acts as one assault and battery or one assault.  And I don’t know of any law that permits that.  [So your] motion is denied.”  (See Exhibit E, attached, Page 13 – emphasis added).
  13. When the jury instructions were considered toward the end of the trial, Prosecutor Timothy Kelly objected to an instruction that Judge Keller indicated his intentions to give, prompting a revealing colloquially between the judge and the prosecutor, as follows:

The Court:       Well, I can see this – Mr. Kelly, I take into account that a good part of the prosecution today – and I hate to say this, I really, but a good part of the prosecution throughout this entire case has been a matter of throwing a lot of mud to see if something sticks.

There has been talk of illegitimate children, there has been talk of foul language outside of this context, there’s been talk of paydays (sic) and there’s been talk of all kinds of evidence that’s been attempted to be offered here to reach some conclusion. This prosecution is being forced very hard for some reason to attempt to reach a goal that the evidence doesn’t really direct properly, in my opinion at this point; and I’m fearful that the general aura of wrongdoing that keeps being thrown out by the prosecution improperly throughout this trial can cause the jury to believe that some act that they believe was incorrect is sufficient for them to consider the evidence in a different light, who was in the right and who was in the wrong regarding that bag being a key, key issue…”  (See Exhibit F, attached, Pages 5-6 of Excerpt III – from the jury trial on December 4, 1992, File # 92-SM-308-A – emphasis added).

  1. After less than a half hour of deliberations, the jury voted for acquittal. After the jury announced its verdict to the court, the judge remarked: “Your verdict is accepted, a judgment of acquittal is entered.  It is an eminently fair and reasonable verdict based on the evidence.  There is no question in my mind.  It is the verdict I would have returned. Frankly I think the case was baseless from the start and it’s a shame that all of us had to go through this.  Some bad judgment was used on bringing the prosecution in my opinion, and somebody has been defamed by it.  A lot of witnesses’ time was taken and a lot of governmental resources that the taxpayers had to pay for was used.  And some these games…”  After trailing off on that note, the judge excused the jury and they left the room.  (See Exhibit G, attached, Pages 3-4 of Excerpt II – from the jury trial on December 4, 1992, File # 92-SM-308-A).
  2. As the judge was wrapping up the matter, Timothy Kelly placed his objection to the judge’s comment on the record and engaged in a colloquially with the judge, as follows:

Mr. Kelly:        Just one comment, your Honor.  I object to the Court’s comments to the jury.  I didn’t feel that that was proper.

The Court:       Do you mean after the verdict was returned?

Mr. Kelly:        Yes, I wouldn’t mind if the Court wanted to talk to me and let me know it’s feelings but to do that in front of the rest of the jury, I don’t think it was proper.

The Court:       This charge was brought in front of the whole world, Mr. Kelly. And I doubt that there’s going to be any apology from your office if one is due. I have never seen such a baseless prosecution in my life. The witness was obviously a liarI didn’t mention it but when I swore her in here this morning before she took the witness stand, she faced me with her whole lower jaw trembling and her eyes watering giving the appearance of a person who is sad and somewhat fearful of having to recount an awesome time, some nine and a half months ago.

After listening to her testimony and other testimony in this case, there’s no doubt in my mind that it was a show entirely and that she’s a phony. And there was no reason base on the research and the investigation done in this case for you folks not to have known that. You either proceeded without any knowledge or concern for the fairness that’s expected of the prosecutor’s office or you had something else in mind in this case other than the administration of justice” (Emphasis added)

  1. My state acquittal on December 4, 1992, a couple months following my federal conviction, was short-lived glory, however, because about three weeks later, the federal judge claimed I tested positive for marijuana. This, I knew, could not be true because I had abstained for months.  The judge abruptly  revoked my bond (the revocation order was time-stamped after the closing of the clerk’s office) and placed me in jail two days before Christmas where I was held until my sentencing on or about January 5, 1993.  Whereupon I was sent to prison.

*****

  1. Ultimately, following three-and-a-half years and after being reviewed in the U.S. Court of Appeals three times, once en banc, my conviction was reversed and the charges dismissed because of the many violations of constitutional law orchestrated by Timothy Kelly, chiefly.
  2. When I was released from prison by the Court of Appeals (sua sponte, immediately following the initial oral arguments) after a total of 8.5 months incarceration, I had to wait about six months to regain my law license and then begin the long process of rebuilding my law practice from scratch again. During that interim period of months, I was forced into bankruptcy.
  3. The loss of my freedom and livelihood, and my law license, and my established law firm with a good staff built over a decade of time, and then being forced into bankruptcy, all flowed from the resilient efforts of Timothy Kelly’s willful and documented effort to destroy my professional career and halt my efforts to showcase problems within the Prosecutors office.

 

  1. And so, in 1994, I resumed my law practice in my hometown of Bay City,                                         Then, after eight years of effort to rebuild both my reputation and law practice, I decided to challenge Timothy Kelly’s re-election as judge in 2012. As a consequence, his animus toward me resurfaced, only this time it adversely affected numerous of my clients.

2012 Re-election Challenge to Timothy Kelly

  1. On May 1, 2012, I filed my candidacy for the judgeship then held by Timothy Kelly. By law, Judge Kelly should have disqualified himself from serving as a judge in any case involving me as a party’s attorney, particularly since there were two other district court judges who could handle them in his place.
  2. On May 7, however, Timothy Kelly issued a “Memorandum” addressed to the Court Administrator, Deputy Administrator, and Clerks of the District Court for the 74th District, directing them to reassign to a different judge any case in which I was the attorney of record and which had been assigned to Judge Kelly; and further, instructing them to refuse to accept any new appearances, whether original or by substitution, from my office in any pending and future cases that were assigned to Judge Kelly, based on an inapplicable ethics opinion he attached to the memorandum. (See Exhibit H, attached, copy of Judge Kelly’s Memorandum dated 5/7/12).
  3. However, no order containing the Memorandum’s directive was entered by Judge Kelly or any other judge when it was issued. Instead, the District Courts clerks, other judges, and everyone else treated Judge Kelly’s “memorandum” as if it was an order, and it wasn’t.
  4. The immediate affect of said Memorandum was to prevent me from representing the accused in any cases that had been assigned to Judge Kelly, who is one of three judges of the District Court, so I was precluded from handling a substantial portion of the potential cases proceeding through that Court.
  5. It also prevented me from handling any domestic violence cases because all domestic violence cases had been handled by Judge Kelly, exclusively, for over a decade, although the Court Rules required a blind draw that Judge Kelly circumvented through an Administrative Order he entered as Chief Judge assigning all the domestic violence cases to himself.
  6. Following the issuance of Judge Kelly’s Memorandum on May 7, and pursuant to it, my appearances were refused for filing by the clerk of the court, including, among others, the following cases:
  7. People vs Anthony Ellis – refused on May 11, 2012
  8. People vs Mark Simpson – refused on May 14, 2012
  9. Likewise, my substitutions as counsel were refused for processing, including, among others, the following cases:
  10. People vs Delane Bell – refused on May 3, 2012
  11. People vs Stephen Dubay, refused on May 8, 2012
  12. On Monday, May 7, Bruce Mannikko, Esquire, the attorney originally appointed to represent Delane Bell prior to my being barred from representing him through substitution (see Paragraph 34, infra), appeared before Judge Kelly for a preliminary examination that had been previously scheduled.
  13. At the start of that hearing, Mr. Mannikko placed Mr. Bell’s objection on the record about being required to proceed without my representation as the retained attorney of his choice. He also offered to waive Mr. Bell’s 14-day Rule to allow the time needed to transfer the case to another judge for handling, but Judge Kelly refused and proceeded to begin Mr. Bell’s preliminary examination, but then abruptly adjourned it for continuation at a later date shortly after the proceeding began. (See Exhibit I, attached, Bell transcript of May 7, 2012, Pages 4-8).
  14. On Wednesday, May 9, I wrote a letter to Judge Kelly regarding the two cases where my substitution was refused (Paragraph 34, infraPeople vs. Dubay and People vs. Bell) and questioned the legality of what the judge was doing because it was based only on Judge Kelly’s memorandum and in the absence of an order, stating my intent to not sit idle, and inferring I would take affirmative action if Judge Kelly continued to prevent me from representing various people as their attorney. (See Exhibit J, attached, a copy of my letter to Judge Kelly dated May 9, 2012).
  15. Accordingly, on Thursday, May 10, at the continuation of the preliminary examination on the Bell matter, I appeared and stated my objection on the record to Judge Kelly’s refusal to allow Mr. Bell to be represented by the attorney of his own choosing pursuant to the U.S. Constitution.
  16. After Judge Kelly declared his intention of resuming the preliminary examination and blatantly told me I was not to take part in it, and since the judge believed I had no right to do so under the Canons, I noted my belief that Judge Kelly had no right or constitutional authority to bar me from representing Mr. Bell. (See Exhibit K, Pages 6-10 of transcript-Vol. II from Preliminary Exam of May 10, 2012, in People vs. Bell, File #12-10339-FY, at Pages 6-7).
  17. Judge Kelly responded that he did not have to sign the order allowing me to take over Mr. Bell’s case “either,” and added that was the end of any further discussion on the matter. (Exhibit K, attached, at Page 7)
  18. To this, I suggested Judge Kelly join me in making a joint request of the State Bar for an ethics ruling on the issue as the best way to protect both of us from any incorrect process, and to prevent any further arbitrary action. (Exhibit K, attached, at Page 7)
  19. Judge Kelly, however, refused my proposal to seek a joint request for an ethics ruling, declaring that I could not practice law in his court “and that’s just the way it is.” (Exhibit K, attached, at Pages 7-8)
  20. Judge Kelly went on to state that he was going to take “about a 5-minute recess.” After 44 minutes he returned to the bench and adjourned the preliminary examination, disqualified himself from the Bell case, and indicated the matter would be reassigned by a blind draw to another judge. (Exhibit K, attached, at Pages 9-10)
  21. That same day, on May 10 at 2:49 p.m., an attorney, Robert Dunn, filed his appearance on behalf of Anthony Ellis, one of the two defendants whose appearance by me was refused at the outset before any appointment of an attorney was ever made. (See Paragraph 53 above)
  22. Forty-one minutes later, an order was entered by Judge Kelly that appointed Mr. Dunn to represent Mr. Ellis; hence, Mr. Dunn filed his appearance as court-appointed counsel on behalf of Mr. Ellis before an order was entered to provide for it.
  23. On Friday, May 11, I hand-delivered new substitution paperwork on the Stephen Dubay case to the office of Judge Kelly under the belief that since Judge Kelly disqualified himself the day before on the Bell case and allowed me to substitute in as Mr. Bell’s attorney, the judge was now allowing me to substitute in on cases assigned to him.
  24. However, Judge Kelly simply transferred the Dubay case to Judge Dawn Klida, another judge of the three judges on that court, for handling and without a blind draw, based on information and belief.
  25. Later that day, on Friday, May 11, Gloria Stamat, then an associate counsel with my law firm, was at the courthouse on an unrelated matter when, as she later related to me, she was informed by Mr. Kenneth Malkin, the attorney initially appointed by the court to represent Stephen Dubay, that Judge Klida, who received the Dubay file from Judge Kelly, would not sign the substitution for Stephen Dubay; and further, that he, Malkin, was not sure if Judge Klida’s refusal to sign the substitution was just for that case or whether her decision pertained to how all future cases involving Judge Kelly would be handled. So Ms. Stamat and Mr. Malkin went to Judge Klida’s chambers to find out exactly what was going on.
  26. According to Gloria Stamat, she and Mr. Malkin discussed the Dubay case with Judge Klida who said that Judge Kelly had assigned her the task of deciding how the substitutions would be handled on Judge Kelly’s cases. It was decided that no action would be taken on Mr. Dubay’s case that day because Judge Klida was too busy to research the topic, which she indicated she wanted to do as soon as possible.  She also said she knew that what she did on the following week  would set the tone for how the rest of the substitution cases would be handled.  Malkin reminded her that the Dubay preliminary examination was scheduled for the following Monday and expressed his intent to note Mr. Dubay’s wishes on the record that I represent him instead.
  27. The following Monday, on May 14, a Memorandum by Judge Klida was faxed to The Bay City Times from the fax machine in the office of Judge Joseph Sheeran, a circuit judge, at 7:43 p.m., according to the time and designation stamp at the top of the faxed memorandum. (See Exhibit L, attached, a copy of Judge Klida’s Memorandum dated May 14, 2012).
  28. Judge Klida’s one-page Memorandum basically reiterated Judge Kelly’s one-page Memorandum and likewise relied on Ethics Opinion RI-52, an inapplicable ethics opinion, in concluding that I was under a “reciprocal duty” not to handle cases assigned to Judge Kelly. Her Memorandum directed that “the District Court Clerks shall not accept or file any appearance or substitution from Mr. Edward Czuprynski on any cases that have been previously assigned to Judge Kelly. This shall be effective only until the general election on November 6, 2012.”
  29. Judge Klida’s Memorandum was sent to the Court Administrator, the Deputy Administrator, all District Court Clerks, the State Court Administrator’s Office, Judge Kelly, and Judge Janer, the third judge of the three-judge court. However, her Memorandum regarding “reassignment of cases for Edward Czuprynski” did not indicate a copy being sent to me, nor was I ever provided one.
  30. It wasn’t until the following morning, on Tuesday, May 15 at 9:28 a.m. that I learned of Judge Klida’s Memorandum when a reporter with The Bay City Times phoned me regarding it and then faxed me a copy of what had been faxed to the reporter from Judge Sheeran’s office the evening before.
  31. That same day, on May 15, The Bay City Times published an electronic news story on M-live that focused on Judge Klida’s Memorandum of May 14 and carried the headline “Can Lawyers Running for Judge Appear in their Opponent’s Courtroom?” In it, the news story, which was disseminated throughout the community, quoted Judge Klida stating that until the election is over, a person accused of a crime who wants to hire me must do so before the case is assigned to Judge Kelly.  (See Exhibit M, attached, a copy of the electronic news story published by the Bay City Times on May 15).  Typically, a judge is assigned to a case when it is first opened and before any attorney is hired.  Hence, it would be very unlikely that any lawyer would be hired by a defendant before a court case is ever begun.
  32. Two days later, on May 17, an order was finally entered related to the issue of my handling of cases assigned to Judge Kelly’s court. The order, signed by Judge Klida as “Chief Judge Pro-tem, 74th District Court”, made reference to her attached Memorandum of May 14 (identical in content to Judge Kelly’s Memorandum of May 7) and stated as follows: “Pursuant to the internal memorandum dated May 14, 2012, attached and incorporated herein by reference, the District Court Clerks shall not accept or file any appearance or substitution from Edward Czuprynski on any cases that had been assigned to Judge Kelly. This shall be effective only until the general election on November 6, 2012.”(See Exhibit N, attached, a copy of Judge Klida’s order dated May 17, 2012).
  33. A number of persons had desired to retain me to represent them, pursuant to their Constitutional Right to counsel of their choosing, but were actually prevented from doing so under the near identical Memorandums issued by Judge Kelly and Judge Klida, and the order Judge Klida entered on May 17, 2012.
  34. Because my practice was primarily criminal defense work in Bay County, I stood to lose substantial income from the representation of those persons who wanted to hire me, and other persons with the general election more than five months away. Since Judge Kelly handled all of the domestic violence cases, exclusively, by virtue of his extra judicial power as Chief Judge, plus one-third of the other cases, I was prevented from any involvement in about forty percent of the cases then being processed through the District Court. As a consequence, defendants seeking representation by an experienced and highly regarded defense attorney were denied access to an attorney of their own choosing.
  35. The refusal of the District Court to accept appearances from me under the Memorandums submitted by Judge Kelly and Judge Klida, and Judge Klida’s order of May 17, 2012, clearly violated the rights of those persons who wanted to retain me from having the attorney of their choice, as protected by Amendment VI of the United States Constitution and Article 1, Section 13, of the Michigan Constitution of 1963.
  36. I had no adequate remedy other than superintending control because I would not have a right of appeal from any final judgment in cases involving persons who wanted to retain me in cases involving Judge Kelly, but refrained from doing so in light of the publicized Memorandums submitted by Judge Kelly and Judge Klida barring me from handling them.
  37. Accordingly, on or about June 6th, 2012, I filed an action for superintending control against both Judge Kelly and Judge Klida, based on her apparent collaboration with Judge Kelly in restricting my ability to practice law in my hometown. Immediately there after , however, Judge Klida entered an order barring me from filing any appearances in cases assigned to her court because I sued her.
  38. Hence, I was then prohibited from being involved in approximately 75% of the cases in the local District Court. Prior to the filing of my candidacy to challenge Judge Kelly’s re-election, I was handling more cases in the local District Court than any other attorney. District Court handles primarily criminal cases.  So the economic impact on my practice was very harsh and severe.  It took two months before an outside judge came to town to review the matter and issue a ruling reversing the local judges’ improper action.  For the duration leading up to that remedial ruling, however, I estimate a direct economic loss of $45,000, at the very least, and substantially  more, given the confusion and fear now embedded in the community.
  39. An outside judge by special appointment from Isabella County, the Honorable Mark Duthie, was assigned to handle the superintending control case. He traveled 50 miles from Mt. Pleasant to Bay City to preside over a special proceeding. During it, Judge Duthie noted on the record that in his county, the challenge of a sitting judge’s re-election would have simply resulted in the challenging attorney’s cases being reassigned to a different judge within that court since there is more than one judge there.  Bay County was no different from the community where Judge Duthie conducted court.  With three judges in the Bay County District Court, there were two judges who could have handled my cases during the 2012 campaign period.  Instead, Judge Kelly chose to inflict economic harm on me, and deny my clients’ their Constitutional Rights, by preventing me from handling cases involving him, early on in the absence of an order to authorize such prohibitionary action; e.g. the entire 74th District Court treating Judge Kelly’s “memorandum” as some type of order when I was abruptly barred from handling any case involving him.  (See Paragraphs 29-34, infra).
  40. At the conclusion of the hearing, Judge Duthie ordered that the blanket prohibition against me from handling any cases assigned to Judge Kelly be immediately halted. To ensure that his order was properly worded and promptly entered, Judge Mark Duthie wrote the order himself, and made sure it was entered with immediate effect, before he left town to return to his county of jurisdiction. So in one swift afternoon, Timothy Kelly’s 2012 efforts to inflict economic harm and tarnish my reputation was temporarily suspended.

People v. Autumn McPhee

  1. Employed to clean commercial buildings and offices after closing, Autumn McPhee left work at about 1:00 am, February 13, 2014 and was pulled over by a squad car hosting two State Police officers shortly thereafter. The officers told her that they pulled her over for a “dangling object” from her rearview mirror and “loud exhaust”. No investigation occurred regarding alleged defective equipment.  Nor was there any ticket issued for it or obstruction of vision, and there was no mention of erratic driving or speeding in the police report.
  2. The officers immediately began a DUI investigation without any reasonable suspicion that Ms. McPhee was intoxicated or impaired. Although she denied using any alcohol or drugs, they required her to exit the vehicle and perform three (3) roadside field sobriety tests; however, the evidence reflected that the tests were not administered properly, and the officers failed to adequately note the woman’s performance in the police report.
  3. After completing the field sobriety tests, the officers administered a preliminary breath test (PBT), which indicated Ms. McPhee had 0.00 breath alcohol level; notwithstanding, the officers arrested her anyway. She was investigated at the scene for over an hour before being driven away.
  4. Autumn McPhee was transported to the State Police Post for a second set of field sobriety tests by a Drug Recognition Expert (DRE) because one of the arresting officers was unsure whether she was, in fact, intoxicated or under the influence of anything, based upon her performance on the first set of sobriety exercises. She was held at the Post for approximately one hour before the DRE began administering the second set of tests. Near the end of the DRE tests, the officer asked Ms. McPhee whether she was prescribed any medications by a doctor, and she stated she was prescribed fen-phen for weight loss, but advised she had not taken any since approximately 4:00 p.m. the previous day.  Based on this statement, Ms. McPhee was charged with operating a motor vehicle while under the influence of a controlled substance.
  5. After being advised of her Chemical Test Rights, Ms. McPhee agreed to a blood test. She was then transported to a hospital for a blood draw, and then transported to the Bay County Jail for booking. Altogether, Ms. McPhee was arrested and detained for approximately five hours before being booked at the jail.
  6. McPhee’s blood was sent to the MSP Forensic Science Lab for an alcohol test. After it came back negative, showing no presence of alcohol, the prosecutor then requested that the blood be tested again for marijuana. After the results showed no presence of marijuana, the prosecutor requested that the client’s blood be tested yet again for fen-phen.  The test results indicated a very small amount of the prescribed medication in Ms. McPhee’s blood.  The repeated testing of her  blood spanned about 5-6 months from the time she was first booked to the when the last blood test results came in.
  7. I filed a motion to dismiss the charge on November 14, 2014 with a supporting memorandum. However, when the motion and supporting memorandum were filed and served on the prosecutor with a copy provided to the judge, my support staff errored and failed to obtain a hearing date and schedule the matter for a hearing before the court. Judge Dawn Klida, who was assigned to the case, allowed me several opportunities to get the notice filed and a hearing held; however, this was not achieved when the matter was yet again scheduled for a pre-trial hearing on the eve of yet another scheduled trial date that had been rescheduled several times before.
  8. When I tried to get a hearing scheduled and the McPhee motion heard by the court the week before the scheduled trial date, Judge Klida said it was too late because her calendar was full and she had given me numerous opportunities to bring the matter before her during the course of at least three adjournments required for the numerous blood testings and some conflicts in my court calendar, as defense counsel. So I could not slight the judge for her position. She had given me several opportunities to correct the initial mistake made by my staff, and it was too short of a period of time before the last scheduled trial date to bring the matter on for her consideration. So I accepted this.
  9. However, the prosecutor sought yet another adjournment of the upcoming trial date of December 15, 2014 due to some problems with her witnesses, and the adjournment was granted. When I tried to get the McPhee matter scheduled immediately thereafter, my office was called by the Judge Klida’s secretary to advise that the judge transferred the case to Judge Kelly because Judge Klida was assigned to do probate work due to that judge retiring; and further, that my motion on behalf of Ms. McPhee would not be heard or considered by Judge Kelly either, emphasizing that I simply had put the matter off too long and missed a cutoff date Judge Klida imposed sometime prior to the trial date of December 15, which was eventually adjourned at the prosecutor’s request.
  10. In response, I sent Judge Klida a letter noting that she had no legal authority to instruct Judge Kelly not to hear or consider the McPhee motion, and that I fully intended to go forward with the motion and notice it for a hearing following its transfer to Judge Kelly. (See Exhibit NN, attached, a copy of the letter to Judge Klida dated December 21, 2014).
  11. Within a day or two after she received the letter, she called me into her office following an unrelated hearing to inform me that she did not mean to imply that she had the legal authority to instruct Judge Kelly not to hear the matter after it was transferred to his court. She stressed that she had allowed me several opportunities to straighten out the matter, which I acknowledged. However, I could not understand why it would make any difference to Judge Klida what happens with the matter since it was being transferred to another judge; and further, that since the prosecutor needed an adjournment, then I should not now  be precluded from bringing on the motion I filed on November 14 for a hearing to obtain the Court’s consideration before the next trial date would occur.  Effectively, delays by the court had negated the earlier filing error acknowledged by me.
  12. Accordingly, about ten days later, I submitted a notice of hearing on notice the Autumn McPhee motion that was filed in November, only to discover that it would not be accepted, because of a notation entered on January 6, 2015 in the McPhee docket entries indicating that no clerks should accept for filing any motion I may attempt to file on behalf of Autumn McPhee.  So I was prohibited from filing a notice of hearing and bringing the McPhee motion on for a hearing.  (See Exhibit O, attached, a copy of the posted computer printout of the court’s Register of Actions indicating the entry on January 6, 2015 that stated: “**Do not schedule motions on this file** Have attorney speak with Judge Kelly’s office***”).
  13. I decided it was useless to speak with Judge Kelly, per the notation. But since the motion and its supporting memorandum had been filed in November (when the noticing of the motion for a hearing was overlooked), I figured that the court clerks may not catch it if I simply filed the McPhee notice of hearing amongst a bunch of other filings on various other cases, which I did. My plan worked, and on February 3, 2015, the clerk of the court accepted the McPhee Notice of Hearing for filing with a hearing date my office scheduled to coincide with a date previously scheduled for a settlement conference on the McPhee  (See Exhibit P, attached, an attested true copy of the McPhee Notice of Hearing filed on February 3, 2015).
  14. The week before the hearing was to be held, however, my office was contacted by Judge Kelly’s secretary and informed that the hearing on the motion was being cancelled, and it would not be considered.
  15. As it turned out, I was in Judge Kelly’s court on Friday of the week when we were told by phone that the McPhee motion would not be heard and considered. So when I was before him on Friday, February 6, on an unrelated matter (People v. Daniel Thompson, file #: 14-32643-SM), I brought up the McPhee case at the end of that hearing.  I asked the judge why he wouldn’t hear the motion on Autumn McPhee that I had filed. He response: ” My recollection is that the case is quite old, and there was a cut off date for motions to be filed, and its well beyond the cutoff date, so I am going to honor what judge Klida had done previously as not to hear the motion that.” (see Exhibit Q, attached page 4 of a short transcript on the hearing held on February 6, 2015 in People vs Daniel James Thompson, File No. 14-32643-SM).
  16. The following week, on Wednesday, February 11, during another final pre-trial on McPhee before the trial date scheduled for the following day, the prosecutor presented Judge Kelly with an Order of Dismissal acknowledging that she did not have a case against Autumn McPhee. When Judge Kelly called the case in court that afternoon, and Ms. Margaret Leming, the assistant prosecutor, told him that her office was dismissing the case, and then walked to his bench and handed him the Order of Dismissal to sign, he had a very stunned look on his face.  With obvious reluctance, he signed it and dismissed the McPhee case “…in the interests of justice.” (See Exhibit R, attached, a copy of the Order of Dismissal signed by Judge Kelly on February 11, 2015).
  17. It was at that moment, I again realized the difficulty of practicing law in Judge Kelly’s court because of the way Autumn McPhee was treated in my efforts to have her matter heard and considered by a judge, a case that had no merit and should never have been brought in the first place.
  18. In checking the actual McPhee court file afterwards, I discovered that my Notice of Hearing dated and filed on February 3, 2015 has the date and time stamp on it whited-out with liquid paper. (See Exhibit S, attached, a copy of a photograph of the McPhee Notice of Hearing that depicts the whiting out with liquid paper, and another copy of a blown up photograph of the whiting out with liquid paper). In addition, I noticed that the listing of docket entries (Exhibit O) contains no listing of the Notice of Hearing that was filed on February 3, 2015.  Hence, the official court file and docket entries had been altered in an apparent effort to circumvent the McPhee Notice of Hearing on a motion that eventually convinced the prosecuting attorney to dismiss the case because it had no merit.

                                    The Stanley Yascolt Case

  1. I represent the Defendant in an eviction from his family homestead by his sister following their late mother’s passing. His sister (the plaintiff) was represented by an attorney and Stanley Yascolt sought my representation to defend him. I prepared and filed my appearance and a motion to clarify what the lawsuit was actually claiming before a pending court date. Since the case was assigned to Judge Kelly, I could not risk the decision made by this particular judge ,so  I needed a jury as a fact finder instead.
  2. On August 5, 2015, at the beginning of the eviction hearing against my client, the tenant, I informed Judge Kelly and opposing counsel that I filed a demand for a jury trial just minutes before the bench trial began, along with an objection to the written complaint in a motion seeking clarification of what the lawsuit was actually claiming.
  3. By law, the eviction proceeding had to be postponed so a jury trial could be scheduled instead. Judge Kelly would no longer be the fact finder because the jury would now fulfill that role. This visibly upset the judge, but yet he had to adjourn the hearing after I asserted the applicable law.
  4. At the conclusion of the hearing, Judge Kelly said something about a pre-trial hearing, but I didn’t hear exactly what he said. (Judge Kelly and the legal community is generally is aware that I have a long standing hearing loss in my right ear). I wasn’t concerned, however, because a written notice of hearing is always given by the District Court , either through an “Action in Court” given to counsel on-the-spot (sometimes mailed in follow up),  or by a written Notice of Hearing issued by the court clerk.
  5. An Action in Court is a carbon copy of a template form used in the courts to indicate what action was taken during a hearing, who was present, and any future dates that may be scheduled at the conclusion of the hearing. In this case, I received no Action in Court at the conclusion of the hearing and assumed that the notice would come through the mail instead, as sometimes happens. (See Exhibit T, attached, an example of an Action in Court from another unrelated case)
  6. However, I never received an Action in Court at the conclusion of that brief hearing, and I never received a written notice of hearing in the mail either. It was a bit surprising, then, about a week later when my secretary received a call from Judge Kelly’s court clerk on August 12 wanting to know where I was because he was about to conduct a pre-trial hearing on the Yascolt case. My secretary explained that the hearing was not on my court calendar, and that I was away out-of-town in another court and county. In turn, Judge Kelly’s court clerk informed my secretary that he was going to enter a default judgement against my client for his eviction because I was not there. (See Exhibit U, attached, a copy of the “Action in Court” dated August 12, 2015 signed by Judge Kelly wherein he awarded a default judgement in favor of the plantiff).
  7. From experience, I knew that a default judgement must be handled in a relatively short amount of time once entered or the tenant can be forcefully and physically evicted. So for the next day and for each day thereafter I went to the District Court and requested a copy of the default judgement Judge Kelly was supposed to have entered. But each time I was told that the file was still in Judge Kelly’s office.
  8. So the following week, I renewed my efforts only to again be told the same thing: the file was still in Judge Kelly’s office. Then on Thursday of that week I pressed the issue with the court clerk, Evan Griffith, who informed me that Judge Kelly was on vacation and the file was locked in his office. I found this upsetting because I believed Judge Kelly was simply trying to keep the file away from me so the time would run out for an appeal of his default judgement that was never mailed to me or my client. So I finally and forcefully asserted myself, demanding that the file be produced that very afternoon. Surely someone has the key to Judge Kelly’s office to retrieve the file for my review, I exclaimed.
  9. Apparently the court clerk conveyed my demand for the production of the file to District Court Judge Dawn Klida who, on December 17, 2014, had been appointed Chief Judge Pro Tempore by Circuit Judge Kenneth Schmidt, who was selected as Bay County’s Chief Judge through a fairly new process that started a few years ago that provided for the appointment for a chief judge and another judge directly below him.
  10. Judge Klida took the landlord/tenant file into her office, reviewed it privately, and then entered an order that set aside Judge Kelly’s default order without request. In other words, she removed the default and reinstated the case on her own initiative and without being asked.
  11. If Judge Klida had not taken action, I would have lost my right to timely challenge Judge Kelly’s default judgement (that had been improperly entered). Based on the date Judge Kelly signed the judgement, I would have had to take action by the following Monday, when Judge Kelly was scheduled to return. With the file locked in his office while he was away on vacation, I was shut out from being able to take the appropriate action, as a lawyer. But after Judge Klida intervened and set aside Judge Kelly’s improper, if not illegal, default judgement, an appeal was not necessary. The actual wording of Judge Klida’s order invalidating Judge Kelly’s default judgement read as follows: “After review of the file and ON THE COURT’S OWN MOTION the court sets aside the Default Judgement entered on August 12, 2015. This matter is to be set for jury trial as soon as the court’s docket will allow.” – emphasis added See Exhibit T, attached, a copy of Judge Klida’s order entered on August 12, 2015 that set aside Judge Kelly’s default judgement entered the prior week.  (See Exhibit V, attached, a copy of the Action in Court signed by Judge Klida and entered on the record August 20, 2015).
  12. Following Judge Klida’s order of August 20, 2015 setting aside Judge Kelly’s default judgement, my office never received any further communication from the court regarding this file. On December 30, 2015, and in preparation for the filing of this affidavit, I ordered expedited copies of the transcripts to be prepared of the two Yascolt hearings held on August 5 and August 12, 2015. Then on Saturday, January 2, 2016, I received a mailed list of witnesses and exhibits from opposing counsel on the Yascolt case. This seemed odd because a list of witnesses and exhibits are seldom employed on landlord/tenant cases, and the parties were never ordered to submit such lists, nor was any trial date scheduled.
  13. So the following Monday, on January 4, 2016, I went to the courthouse to review the Yascolt file to determine if there was any activity with the file since Judge Klida’s order was entered on August 12, 2015. The file, however, was not available because it was in Judge Kelly’s office so I obtained a list of the docket entries instead.
  14. The docket entries I received on Monday, January 4, were very revealing. The listing of docket entries itemizes all activity that occurs on a court file involving the setting of dates or the entry of documents into the court file. In this instance, the docket entries indicated there was a settlement conference scheduled for January 27, 2016, and a jury trial scheduled for January 28, 2016.  However, I never received any notice from the court or any other source about the settlement conference and jury trial dates that were scheduled for later that month.  So although the docket entries indicated those two court dates were set, I was never made aware of it.  (See Exhibit W, attached, a copy of the Yascolt docket entries that were produced and dated on January 4, 2016).
  15. On January 6, 2016, I finally received the two expedited transcripts I ordered on the hearings held on August 5 and August 12, 2015. In reviewing the transcript from August 5, I was able to ascertain exactly what it was in court that I did not hear. According to the transcript, the judge scheduled a pre-trial for August 12 at 10:15 a.m.  The transcript also reveals my uncertainty as to what the judge had just said (“I didn’t quite catch it”).  What’s particularly revealing, however, is how the judge ended the hearing by stating that there would be no Action in Court, and that the date scheduled for the following week would be given verbally only.  Since I did not hear clearly what the judge said, and since I knew that a written notice is always given on court dates by the local district court (except in this case).  I relied on the written notice that I never received.  It appears, then, that Judge Kelly capitalized on my uncertainty about the future scheduled timetable by conducting a pre-trial hearing the following week (without written or formal notice), and then taking the most extreme action allowed under the court rules by entering a default judgment against my client because neither of us were in attendance because neither of us heard what the judge said toward the end of the hearing on August 5.  (See Exhibit X, attached, Pages 12-13 from the transcript of the Yascolt hearing held on August 5, 2015).
  16. Given the lack of formal and/or written notice of the hearing Judge Kelly scheduled for the following week on August 12, 2015, it seems inappropriate that he would enter a default judgment against my client simply because neither of us heard what he said and failed to show up on August 12. Although the court rules do allow a judge to enter a default against a party who fails to attend a court hearing, such an extreme measure is rarely taken by most courts because scheduling difficulties, or lack of formal notice (as here), may occur. Most judges would have simply adjourned the matter to a new date and made certain that a formal, written notice of the upcoming hearing would be provided to both parties.
  17. In some instances, a judge may assess costs against the party who failed to appear, rather than take the most extreme action allowed by entering a default judgment. In other words, rather than follow the course of conduct that most judges would have taken under such circumstances, Judge Kelly took advantage of the situation and entered a default judgment against my client, even though he appeared with me the week before on August 5 and demanded a jury trial on the matter.
  18. This is the problem that my clients and I face in dealing with Judge Kelly. I always have to be on guard with him. If there’s any way he can take advantage of me or my clients, he’ll do it.  His handling of the Yascolt matter, and the way he was so quick to enter a default judgment against the man to have him thrown out of his house, illustrates his manipulation of the court docket and proceedings.  It also explains why Judge Klida entered an order to set aside Judge Kelly’s default judgment
  19. Why is it that an Action in Court was entered into the Yascolt file by Judge Kelly when he entered the default judgment against my client, but he specifically stated on the record that no Action in Court would be filed in the record following the August 5, 2015 court hearing? Notice how both Judge Klida and Judge Kelly entered written Actions in Court when they took official action in the handling of the Yascolt file, yet Judge Kelly didn’t follow the standard procedure at the conclusion of the August 5 hearing. It’s ridiculous that as a practicing lawyer, I am required to repeatedly check the court file, obtain listings of docket entries, and be on alert for Judge Kelly’s judicial maneuverings to abuse the rights of me and my clients.  Notice how the docket entries that I obtained on January 4 (Exhibit W), lists Judge Kelly’s Action in Court of August 12, 2015 that he signed to enter the default judgment against my client, and the Action in Court Judge Klida signed on August 21, 2015 to set Judge Kelly’s default judgment aside.  So why wasn’t an Action in Court likewise utilized when the parties appeared in Judge Kelly’s court on August 5, 2015 and provided to them by mail or in person, per the standard procedure?  Unless, of course, Judge Kelly (who often speaks softly in court) took advantage of my hearing loss, which is common knowledge in the courts in which I practice?
  20. In addition to the documentation I’ve provided regarding the problems I have faced in trying to practice law in Bay County with Timothy Kelly as a district judge, it should also be noted that the evidence animus toward me I provided may flow, in part, from the campaign I launched against his reelection in 2012. (See Exhibit Y, attached, a copy of the piece of campaign literature I used in an opposing Judge Kelly’s reelection in 2012. The first page entitled “Birth of DV King” informed the voters of how Judge Kelly began handling all the domestic violence cases shortly after his initial election, contrary to the court rules. The second page of the campaign flyer “Lawless Judges Ordered to Follow Law” provides the voter with the background story of how I had to sue Judge Klida and Judge Kelly, and win a ruling against them, in the superintendent control action I was forced to bring when their combined efforts  deprived of me about 75% of my income, as detailed in Paragraphs 28-63, infra.
  21. Further, Affiant Sayeth Naught.

__________________________

Edward M. Czuprynski, Affiant

[1] Search warrant and the affidavit supporting it were drafted by Timothy Kelly, according to reliable information.

[2] Referencing Timothy Kelly, the only state prosecutor actively involved.

[3] Timothy Kelly also knew that other police departments had declined to involve themselves with Sawicki’s complaint, and he orchestrated the submission of the warrant application to the judges through Tait.

[4] Referencing Tait and Kelly as the State Officials.

[5] Upon information and belief, Timothy Kelly hand delivered affiant’s file to the federal authorities whose office was four blocks away from him.

[6] Affiant also served one month prior to the conviction for a total of 8 ½ months.

[7] An en banc hearing is rare and involves all 15 judges of the full Court at a hearing .  In this instance, the hearing was on the government’s appeal of the initial decision in Czuprynski’s favor by 3 judge panel – the normal procedure followed in the Court’s review,  rather than the full court hearing a case.

[8] “….State officials” references Timothy Kelly, chiefly.

[9] i.e. Timothy Kelly

[10] “Prosecutorial agencies as a whole” included the only active state prosecutor involved: Timothy Kelly.

 

Motion to Disqualify Trial Court Judge that Affidavit Supports

Defendant, NICHOLAS ELLERMAN, by and through undersigned counsel, Edward Czuprynski of Bay Justice Associates, PC, file this Brief in support of Motion to Disqualify Trial Court Judge, and states the following:

 

1.“A judge is disqualified when he [or she] cannot hear a case impartially.” Van Buren Charter Twp v. Garter Belt, Inc, 258 Mich App 594, 598 (2003).

2.  Pursuant to MCR 2.003(C)(1)(a), judicial disqualification is necessary if the judge is biased or prejudiced for or against a party or a party’s attorney.

3.  Judicial disqualification is necessary under MCR 2.003(C)(1)(b), if, “based on objective and reasonable perceptions,” (1) the judge has a serious risk of actual bias impacting the due process rights of a party as enunciated in Caperton v Massey, 556 US 868 (2009), or (2) the judge has failed to adhere to the appearance of impropriety standard set forth in Cannon 2 of the Michigan Code of Judicial Conduct. If any of the above reasons exists for disqualification, a judge must sign an order of disqualification. See MCR 2.003(C).

4. The relevant sections of Cannon 2 of the Michigan Code of Judicial Conduct provide:

A) Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

B) A judge should respect and observe the law. At all times, the conduct and manner of a judge should promote public confidence in the integrity and impartiality of the judiciary. .

C) A judge should not allow family, social or other relationships to influence judicial conduct or judgment. A judge should not use the prestige of office to advance personal business interest or those of others . . .

5.  Judge Kelly must be disqualified as the judge on this case, and all other cases in which Mr. Czuprynski appears, because he has longstanding personal prejudice against Mr. Czuprynski. The specific facts supporting this claim are set forth in Mr. Czuprynski’s supporting Affidavit being filed and hereby incorporated by reference

6.  Judge Kelly must be disqualified as the judge on this case and all other cases in which Mr. Czuprynski appears because there is a serious risk of actual bias and/or predudice by Judge Kelly, impacting the due process rights of Mr. Czuprynski’s clients, particularly, here the defendant, as enunciated in Caperton v. Massey, 556 US 868 (2009). The specific facts supporting this claim are set forth in Mr. Czuprynski’s supporting Affidavit.

7.  Judge Kelly must be disqualified because Judge Kelly has failed to adhere to the appearance of impropriety standard set forth in Cannon 2, Code of Judicial Conduct in this matter and other matters in which Mr. Czuprynski appears. The specific facts supporting this claim are set forth in Mr. Czuprynski’s supporting Affidavit.

8.  In the event that Judge Kelly denies this Motion, defendant requests that the motion be referred to the Chief Judge for a decision de novo as required by MCR 2.003(D)(3)(a)(1).

9.  Simultaneous with this Motion and its Supporting Affidavit, defendant filed a brief in support of this Motion to Disqualify Trial Court Judge, which sets forth the specific legal analysis for this Motion and the application of the facts found in Mr. Czuprynski’s supporting Affidavit to the law.

WHEREFORE, defendant NICHOLAS ELLERMAN and his counsel EDWARD CZUPRYSNKI, respectfully requests that this Court grant the instant Motion and enter an Order disqualifying Judge Timothy Kelly from presiding over this matter, and any other matter in which Mr. Czuprynski appears, and granting defendant any other such relief as this Court may deem just and proper.

BAY JUSTICE ASSOCIATES, PC

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