Michigan: Perjured Testimony at Trial Results in Habeas Relief, but Reversed on Appeal

by David M. Reutter

A Michigan federal district court ordered the immediate release of a man convicted in a “sham” trial that involved the police, prosecutor and a trial judge who knowingly allowed witnesses to perjure themselves. The court’s grant of habeas relief also found the state court had denied the defendant’s right to counsel of his choice. The Sixth Circuit, however, disagreed and reversed.

Alexander Aceval was convicted of possession with intent to deliver 1,000 or more grams of cocaine. He was arrested on March 11, 2005 after police officers Robert McArthur, Scott Rechtzigel and others conducted surveillance on a bar as a result of information obtained from confidential informant (CI) Chad W. Povish.

The officers were informed by Povish that Aceval had offered him $5,000 to drive drugs from Detroit to Chicago. They watched three individuals load two black duffel bags into the back of Povish’s car.

Before trial, Aceval requested that the CI be identified, which compelled Judge Mary Waterstone to conduct an in camera interview of McArthur. It was revealed that McArthur and Rechtzigel both knew Povish was the CI, and that Povish had received $100 for his services plus “he was going to get ten percent [of] whatever we got.” According to Michigan Supreme Court Justice Stephen Markman, that amount was estimated to be up to $100,000. Judge Waterstone declined to order the disclosure of the CI’s identity at trial.

At a hearing on Aceval’s motion to suppress, Rechtzigel lied by denying he had had contact with Povish prior to March 11, 2005. In a sealed hearing, Wayne County Assistant DA Karen Plants admitted she allowed Rechtzigel to commit perjury because “I thought an objection would telegraph who the CI is.” Judge Waterstone said she thought it was “appropriate for [the witness] to do that.” Further, she added, “I think the CI is in grave danger.... I’m very concerned about his identity being found out.”

During trial, Povish falsely testified he had never met Rechtzigel or McArthur before they stopped his vehicle on March 11. He also said neither of them had offered him a deal of any kind. In another ex parte sealed bench conference, Plants and Waterstone indicated they knew his testimony was perjured. The jury was unable to reach a verdict and a mistrial was declared; Aceval’s defense counsel was unaware of the perjury until after the trial.

Once the false testimony was uncovered, state officials took action. Judge Waterstone retired and was reprimanded by the Michigan Judicial Tenure Commission. She initially faced felony charges which were later dismissed. Plants was convicted of misconduct, disbarred and sentenced to six months in jail; Assistant Attorney General William Rollstin called her “the hub of the wheel of the perjury.” Officers Rechtzigel and McArthur pleaded guilty to neglect of duty and received 90 days in jail.

Despite the known perjury during Aceval’s first trial, the state tried him again in June 2006. Accused of witness tampering during the retrial, he pleaded guilty – then appealed on double jeopardy and other grounds. Michigan state courts refused to reverse his guilty plea and 10-to-15-year sentence, but the federal district court had no such reservations.

“Retrial is barred where the judge or prosecutor knowingly engages in misconduct with the intention of prejudicing the defendant’s chances of acquittal,” wrote U.S. District Court Judge Arthur Tarnow, noting that Waterstone and Plants had “conducted a sham trial that tilted the scales strongly in favor of the prosecution.”

Tarnow also found the state court judge who oversaw the case after Waterstone recused herself had denied Aceval’s right to his counsel of choice. That denial was a structural defect that was not overcome by his subsequent guilty plea.

The district court’s September 30, 2013 order granting Aceval habeas corpus relief was unconditional, requiring that he be released “forthwith.” He was freed from prison the next day. See: Aceval v. Maclaren, U.S.D.C. (E.D. Mich.), Case No. 2:12-cv-120897.

The state, however, dissatisfied with that outcome, appealed to the Sixth Circuit, which reversed in a September 15, 2014 amended ruling. The appellate court found that the Michigan Court of Appeals’ rejection of Aceval’s double jeopardy and choice of counsel claims “Rested on a reasonable application of Supreme Court precedent.” That is, the state courts had not unreasonably applied clearly established case law, precluding habeas relief.

The Sixth Circuit wrote that it was unaware of any Supreme Court precedent “that would bar retrial on double jeopardy grounds when the prosecutorial misconduct in the first trial aimed only to secure a conviction.” The district court’s judgment was reversed and the case remanded for consideration of Aceval’s claim that his re-prosecution violated his due process rights. See: Aceval v. Maclaren, 578 Fed.Appx. 80 (6th Cir. 2014), amended, 2014 U.S. App. LEXIS 18325 (6th Cir. 2014).

Following remand, on February 10, 2015 the district court granted the state’s motion to return Aceval to prison. In July 2015, the court denied habeas relief on Aceval’s due process claim, stating: “The argument that the Due Process Clause alone might bar retrial after pervasive prosecutorial and judicial misconduct resulting in a sham trial is a novel one. And unfortunately for Petitioner, novel legal theories do not fair well under the [Antiterrorism and Effective Death Penalty Act].” Aceval has since filed another appeal; he remains incarcerated. See: Aceval v. MacLaren, 2015 U.S. Dist. LEXIS 86960 (E.D. Mich. July 6, 2015).

Additional source: Detroit Free Press

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