Circle of lies
Perjury and its consequences a Wayne County court
Published: April 20, 2011
"They were the dummies who were stupid enough to be carriers, the mules, on March 11. Bryan Hill set it up, acted as the pimp for his friend. Chad Povish was stupid enough to go along. They may not have known exactly what was in the duffel bags, but they knew they were getting into something illegal. Ladies and gentlemen, God bless Chad Povish and Bryan Hill. They gave us enough information so that we could try Mr. Pena, but they didn't want to give enough information to totally implicate themselves. ..."
As Moffitt later asserted: "[Karen Plants] intended to create the false and misleading impression with the Pena jury that Povish was a 'dummy,' and not someone knowingly involved in the narcotics transaction so as to bolster his credibility before the Pena jury and to hide his involvement as the confidential informant from the defense."
Pena was found guilty.
The Aceval jury, however, was unable to reach a verdict. When Judge Waterstone talked with the jurors afterward, they told her that a primary reason that they ended hung was that no one ever offered an adequate explanation of what was going on with the "Mexicans" who were at the bar but inexplicably let go.
Before the start of Aceval's trial in front of Judge Waterstone, his attorney at that time filed a motion seeking proof that a confidential informant actually existed.
Responding to the motion, the judge met privately with Inkster police officer McArthur, who provided the judge with a file disclosing that Povish was the informant, that he had been paid by the department for work on the case, and that there was a deal to provide him with 10 percent of the assets seized.
At a subsequent hearing in open court, Pena's lawyer asked Sgt. Rechtzigel if he'd had any previous contact with either Povish or Hill. He said that he'd met Hill while the two were in college, but that'd he'd never had any contact with Povish, which was a lie.
And so, in early September 2005, prosecutor Plants, with a court reporter taking down the conversation but without defense attorneys knowing of the meeting, met with the judge in her chamber and told her that defense attorneys were trying to get phone company records for Povish and Hill's cell phones. The judge issued an order telling the companies not to release the information.
Plants also told the judge that she had a "jailhouse snitch" who "tells me that Pena and Aceval have narrowed the informant" to either Hill or Povish.
Plants also told the judge that, in response to a question from a defense attorney during an evidentiary hearing, Rechtzigel had lied about knowing Povish before the bust.
"He knowingly committed perjury to protect the identification of the CI [confidential informant]," Plants explained. "To answer yes would have indicated that he had met them in a confidential informant capacity.
"I did not object at that point because I thought an objection would telegraph who the CI is. I let the perjury happen. He committed perjury knowingly, all in efforts to comply with the Court's order to keep the CI confidential."
Waterstone agreed and said that, given the circumstances, it was "appropriate" for the officer to lie.
"It is too bad," said Waterstone. "I'm sure the question came from left field. No one would have expected such a blatant attempt to do nothing but find out the name of the CI ..."
The record of that conversation was then sealed.
As Moffitt later pointed out, Plants didn't bother to tell the judge that one of the defense attorneys had already expressed his belief that Povish was indeed the informant. Nor did she disclose that "in prior proceedings ... Rechtzigel, McArthur, and Povish had testified similarly falsely, sometimes under her own [Plants'] questioning."
Neither did she offer any more information about the jailhouse snitch, and she failed to mention that she had never personally talked to the snitch, "as she had inferred."
As Moffitt asserts in court documents, trial transcripts also show that Plants asked questions of Povish and both officers that elicited untrue responses, which she left uncorrected.
For her part, Judge Waterstone had no doubt that the juries were presented perjured testimony. She confirmed that view in an interview with the Attorney General's office.
Just as prosecutor Plants, faced with either disclosing the identity of her confidential informant or losing the star witness (because they were one and the same) chose the fatally flawed tactic of deception, Waterstone faced a dilemma of her own.
The law is clear: There's no circumstance in which perjury should knowingly be allowed to be put before a jury. And if it is discovered afterward, it needs to be corrected. That's true even in a case such as this one, Wayne State law professor and former federal prosecutor Peter Henning told Metro Times.
"You wouldn't expect a judge to let a person lie on the witness stand," Henning said. "That's just not an option."
But that's exactly what Waterstone did.
'It was way too big'
Unlike the grilling Povish got from the AG's office when he provided a sworn deposition after the perjury came to light, an interview with Waterstone at her Detroit home in December 2008 was decidedly easygoing.
It was also secretly recorded by the investigator.
The two share a cup of coffee — he takes his black, and says instant is fine. "Cops and their coffee," he says, "aren't too particular."
The investigator Michael Ondejko spends many minutes marveling at the grandeur of the judge's Indian Village home.
"What a beautiful house," he remarks. "I've never been in one of these houses."
She offers him a quick tour, pointing out the pool in the yard. She notes that she and her late husband bought it for $28,000 in 1972. For many years a corporate attorney for Michigan Bell Telephone, she was appointed to the district court bench by then-Gov. John Engler in 1991, and then appointed by him again to the circuit court in 1997.
She talks about her neighborhood, and how much she loves it, noting that some friends thought she might move to the suburbs when her salary rose after moving from district to circuit court.
"I said, 'Why would I do that. I wanna be here.'"
After some more chitchat about the investigator's diminishing eyesight and Waterstone's recent cataract surgery, Ondejko gets down to the reason for his visit.
"I work for the Attorney General's Office now, and I've been tasked with doin' an investigation into the perjury that occurred at the Pena/Aceval trial."
Waterstone expresses some surprise that this interview is a prelude to her receiving an investigative subpoena that will require her to provide a deposition taken under oath.
She doesn't hesitate in telling Ondejko that she has no doubt the officers perjured themselves.
"There's no question about it," she says.
Then she begins offering her views of the case. Among other things, she states a belief that prosecutor Plants, facing the high-priced legal teams brought in by the defendants, "was way over her head." She also worried that if she brought in Aceval's attorney at that time, and disclosed to him the situation, and that there's been perjury, "he's gonna go back and tell Aceval."
Uncertain of how to handle the matter, she said that she considered consulting fellow Judge Tim Kenny, a man she considered to be "kind of my godfather," to obtain his advice.
Before that could happen though, Plants came in with a suggestion offered by Tim Baughman of the prosecutor's office.
"... When Tim Baughman speaks, judges listen, defense attorneys listen, police officers listen. And she [Plants] said, 'Tim says the way to handle this is to have a sealed hearing.'"
In retrospect, she added, it would have been better to have contacted Kenny.
(In an ironic twist, Kenny is the judge that will be presiding over Waterstone's upcoming trial.)
The plan, Waterstone said, was to seal the information, and then unseal it if either man were convicted and were to appeal the verdict.
She talks about her perception that, after the first trial ended in a hung jury, Plants seemed to be a bit overconfident with regard to the prospect of winning the retrial.
"I don't mean to criticize her," said Waterstone, "because she is a very nice person ... [but] I never thought she was a good enough attorney to be the head of the narcotics unit. I certainly never thought she was good enough to handle that case."
Part of the reason Plants felt cocky, explained the judge, were incriminating recorded phone conversations of Aceval.
"I think she said this on the record [that] Aceval said, 'My attorney is so good, even I thought I was innocent.'"
And so Plants, the judge declared, was both out of her depth and too overconfident.
"But you know, they don't ask me who — they never say, Judge, which prosecutor should we assign to — nobody asked me that."
There's no indication that she's being ironic. In a way, the statement gives some hint to the close working relationship judges develop with the prosecutor's office.
"It's a little bit like the old TV show Night Court," Henning told Metro Times. "Everyone knows everyone else, and it takes on a life of its own. But, clearly, there was a level of trust there that should not have been."
At one point, Waterstone disclosed that she was close enough to Plants — the prosecutor having been assigned to her courtroom for more than a year — to have steered an abandoned cocker spaniel her way.
"You know, we had a kind of a relationship."
During the interview, Ondejko offers that the "the plan to put somebody in the middle of a deal like that with Povish, and then try to conceal him is just — it's doomed for failure. You can't do that."
"Yeah," said the judge. "I don't know why they didn't hand it over to the feds,"
That certainly would have been one of the options law professor Henning referred to.
"It was way too big," she continued. "And it turns out the feds had guys in the bar."
The suspicion is that one of the Mexicans was working as a federal informant. The Aceval jury, she recalled, told her after they had been unable to come to a unanimous verdict, that part of the reason was that there was no real explanation for their presence in the bar, or why they too weren't arrested.
"I found out later," she added, "that the other guys had been captured by the feds."
She certainly thought that the DEA would have been a much better agency to deal with a case involving 47 kilos of high-grade cocaine.
"Why they [Inkster] thought they were capable of handling something of the magnitude of $27 million — that's crazy. They should have turned that guy over to the feds."
"But you know," she added by way of explanation, "I think everybody ... had dreams of glory. Not that they're bad people. I thought McArthur was good. Rechtzigel, to me, was an arrogant, promoted-too-soon, smart aleck. ... I mean, I don't think he was a bad guy either."
"I always thought the real, hard-working guy was McArthur. Rechtzigel wanted the glory. And Karen probably did too."
The whole thing is "such a tragedy 'cause the guy is such a jerk. I mean, Aceval."
"He's a big-time delinquent," agreed Ondejko.
"... not just a jerk," added Waterstone. "He's a very pleasant man, but a very bad man."
Later on, Ondejko steers the conversation in a way that suggests that it wasn't just the cops and prosecutor who were in over their heads dealing with a case of this magnitude.
"I don't pretend to be an attorney," Ondejko said, "but there just seems to be really no choice there; either there's a mistrial or you give up the informant. But at any rate, you gotta include the defense in what's goin' on."
Meaning that, if the prosecution is to continue, Povish's true role has to be exposed.
"Well, you know, I understand that. But the problem is, if you care about the informant being killed ... I don't want to be the one who [says] that Chad Povish is the guy. Because he'll be dead tomorrow."
(Moffitt, who didn't represent Aceval during the original trial, points out that there has never been any evidence introduced that showed tangible proof Aceval posed a threat to the informant. The Wayne County Prosecutor's Office eventually conced the point in court filings. The state Attorney General's Office agrees as well. However, Waterstone claimed that Povish's house had been ransacked.)
"You know," she explained, "I just didn't want his life on my conscience."
And so, Baughman — "he's the appellate guru" — appeared to have a solution to the dilemma.
It is at this stage that Ondejko makes a point that takes much of the air out of all the claims that the perjury was intended to protect Povish — rather than, as critics of the prosecution have claimed, simply a desire to obtain a conviction at any cost.
"... having him [Povish] testify really, it just kind of took that out of the picture to me. His testimony was going to get him hurt regardless of his motivation being an informant. ..."
"Well, see, to me, I didn't think that. ... I mean, to me, it was, as long as he wasn't identified [as the confidential informant] he was probably OK."
"It would have been a good idea, though, if the Inkster cops would have at least charged the guy."
Ondejko, the seasoned investigator, didn't think it made any real difference. Secret snitch or witness for the prosecution — if you cross a drug cartel and it is of a mind to retaliate, you are in an equal amount of trouble either way.
Shortly after the interview at her home, Waterstone responded to a subpoena and went to the AG's Detroit office to give a sworn deposition.
During that question-and-answer session, First Assistant Attorney General William Rollstin pressed the point of Povish being allowed to play two roles.
As the unseen confidential informant he was able to provide police with crucial information that led to the arrest of Pena and Aceval. And, if they were convicted and their assets successfully seized, he was due a share of the haul.
In fact, according to his statements, it was necessary to gain a conviction for him to collect his "pay." So he definitely had a stake in seeing Aceval declared guilty. He anticipated a $100,000 payday.
On the other hand, he was allowed to present testimony on the witness stand unencumbered by the concern that jurors might think his testimony is being shaded by the desire to collect that cash. They wouldn't know about that.
It was a point Waterstone seems to have trouble grasping. She noted that, at some point in the trial, it was disclosed that the confidential informant was indeed being paid.
Rollstin tries to explain that the jurors had no clue that the witness they were seeing was secretly the one in line to get paid off if there was a conviction.
Obviously, said Rollstin, "his payment or potential payment ... goes to his interest, bias and prejudice to tell the truth."
"I don't necessarily agree with that," responded Waterstone.
"So," parried Rollstin, "if he testifies that he had the potential to receive $100,000 for this case, that wouldn't be something you'd find material?"
"If it had come to me, yeah," said the judge. "But it never did."
The bottom line, she indicated, was this: "So, you know, to me, it didn't seem to me like he was getting paid an outrageous amount, and I didn't really regard that as important. What I regarded as important is that he gave information and the information he gave was corroborated by things the officers themselves [sic] saw ..."
And then she added: "Now, maybe if I was a sophisticated federal judge who had tried hundreds of these cases, I would have done it differently."
As with the cops and the prosecutor, she had never dealt with anything nearly this big.
Rollstin pressed on, trying to discern the "logic" of why Waterstone would allow perjured testimony, and then make a secret record that, if the case were appealed, would open the door to a new trial.
"I just took the word of the Oracle of Delphi, Mr. Baughman, and I was really mistaken and I'm sorry I did that but I did."
(Citing the upcoming trial that is scheduled for Waterstone, both Baughman and Prosecutor Kym Worthy, through the office's spokesperson, declined to comment for this story.)
Before going to the AG's office, Waterstone talked specifically about Moffitt during her more casual meeting at home with Ondejko.
She made note of the "horrible" names he called her as he accused her in open court of suborning perjury, then said, "He's a nutbreaker ..."
The chips fall
By the time his second trial was approaching in 2006, Aceval had dismissed the attorney who represented him in the first trial and brought in a new one. In addition, Moffitt was hired as co-counsel.
However, shortly before the trial was scheduled to begin, Plants, for reasons that aren't entirely clear, made a phone call to the defense team and informed them that Povish was actually the confidential informant.
(She did so after consulting with Povish, according to Plants' attorney Ben Gonek. By way of explanation, he said that Plants had come to realize things weren't handled properly in the first trial.)
Given that, and the fact that revealing Povish's identity also revealed that he had lied on the stand, and that Waterstone surely knew that, Moffitt demanded that she recuse herself from the case. Which she did.
The Free Press was the first paper to report the controversy. Other media, including this paper, jumped in. Plants was taken off the case and a new attorney assigned.
That was in early 2006.
The new judge assigned the case, Vera Massey Jones, in response to a motion filed by Moffitt, ordered that all sealed documents be opened. It was then that the two secret conversations between Plants and Waterstone — where they freely admitted perjured testimony had been allowed to be presented to the jury unchallenged — came to light.
As a result, Povish testified about his true role in that second trial.
All attempt to have the states higher courts rule that Aceval shouldn't have had to face a second trial because of the damage done by government malfeasance n the first failed. As a result, Aceval had to face a second trial.
Pena was granted a second trial because the Wayne County Prosecutor's Office formally admitted it had erred in the handling of his case. During the course of that trial, Pena agreed to admit guilt and take a plea bargain and testify against Aceval.
Along with that setback for Aceval, there was also another twist thrown in: It was discovered that while his attorneys were claiming that a mistrial should have been declared in the first trial because of the perjured testimony, Aceval was found to have been in contact with Povish's friend Bryan Hill, who had been granted immunity in exchange for promising to testify truthfully. He admitted that, at the behest of Aceval, he had lied under oath, and asked to have that testimony purged.
That double blow prompted Aceval to take a deal of his own in return for pleading guilty. He is currently serving a maximum sentence of 15 years. According to Moffitt, plans are in the works to appeal Aceval's case in federal court.
More guilty pleas
Attorney Moffitt, who was removed as attorney for Aceval by Judge Jones before the start of the second trial because of a conflict with his co-counsel over how to pursue the case — even though Aceval wrote a letter saying he preferred to keep Moffitt — is back on the job.
Over the years he has been relentless in his criticism of Waterstone, Plants and the two police officers. What they did, he has contended, undermines the very foundations our justice system rests on.
If police and prosecutors are allowed to lie under oath, how are jurors — or any of us — supposed to have any faith in our courts?
To be sure, he is representing his client. But he leaves the distinct impression that there is more to it than just that. He comes across as a man truly outraged by the lies, expecting a price to be paid by those who participated in what he has called a "vertically integrated criminal conspiracy."
But seeing the four have their day in court — as defendants — was a long time coming.
After taking no action initially, the Wayne County Prosecutor's Office said it wouldn't pursue prosecution of any of the four because of the conflict of interest created in pursuing charges against Plants.
Four different prosecutors in other counties also declined to pursue the cases. Then, in March 2009 — three years after the perjury first came to light — then-Attorney General Mike Cox brought felony charges against Waterstone, Plants, Rechtzigel and McArthur.
It took another two years for the charges to be resolved in three of the cases. Rechtzigel and McArthur each faced potential life sentences if convicted on perjury charges. Instead, they pleaded guilty to one misdemeanor count of neglect of duty. In exchange for the deal, which required them to spend 90 days in jail, they agreed to testify against Plants and Waterstone.
Attorney Douglas Gutscher, who represents McArthur, said that given the fact that his client risked spending his life in prison if convicted, even though there was a good chance his client could have been found not guilty by a jury, pleading to a misdemeanor was a rational decision. But he also said that the cops were put in a bad spot by the way the case was handled by the prosecutor's office from the start.
A former prosecutor himself, Gutscher said that he handled cases where cops didn't want to risk having the identity of a confidential informant disclosed. The right thing for a prosecutor to do when put in a position like that to either plead out the case before going to trial or dismiss the charges.
McArthur has retired from the police force and now owns a tanning business.
Rechtzigel's lawyer, David Griem, is former chief of the drug unit in the U.S. Attorney's Office in Detroit. He said that his client "did everything he was told to do to protect the life of a confidential informant. The Michigan Attorney General's Office has argued that the confidential informant was in no danger. That's bullshit. This was a Mexican drug cartel operation. To say that an informant was not in danger when the cartel lost more than 100 pounds of pure cocaine is beyond belief."
As Rechtzigel was being sentenced, his wife, surrounded by a small group of supporters, sobbed uncontrollably.
"This price this officer has paid for his mistake has been enormous," Griem said.
Rechtzigel now has a business cleaning commercial and industrial buildings.
After the two former officers agreed to testify against her, Plants then accepted a deal of her own, agreeing to spend six months in jail in return to pleading guilty to one count of misconduct in office, a felony. Her license to practice law was immediately suspended as a result.
The Attorney Grievance Commission has filed a complaint against Plants, but action was postponed while her criminal proceedings were still ongoing. She now faces a hearing before the Attorney Disciplinary Board. It is possible her that she could be disbarred.
Her attorney, Ben Gonek, said that his client too has suffered much because of her "poor judgment." At the sentencing, he pointed out that she went from making $120,000 a year as a prosecutor to $24,000 a year working as a social worker at Cass Corridor Community Services in Detroit.
As a courtroom packed with supporters looked on, Plants told the judge, "I apologize for the damage done to the criminal justice system."
As with Rechtzigel, she's allowed to participate in a work release program while serving her sentence.
That leaves just Waterstone's case open. She faces one count of misconduct in office, a felony that carries a maximum sentence of five years. Three other counts brought against her were dismissed by Kenny. The state is appealing that ruling, trying to get the other three counts reinstated. Waterstone's lawyer, Gerald Evelyn, has appealed in an attempt to get the remaining count thrown out.
Evelyn told Metro Times that his client should not be facing criminal charges at all for her role.
Normally, he explained, a "misconduct in public office" charge is associated with officials breaking the law for personal gain, such as taking a bribe. That's not an issue in this case.
"What she did is called a mistake, it's not called a crime," Evelyn said.
In 2006, after Waterstone had announced she would be retiring at the end of the year, the Judicial Tenure Commission admonished her for what it delicately termed her "failure to be faithful to the law" by allowing the perjured testimony to stand and holding meetings with the prosecutor without informing defense attorneys.
He thinks the state could have a difficult time getting a conviction — should the case proceed to trial — because proving criminal intent could be a challenge.
"What she did was not right, but that doesn't make it a criminal act," Henning said.
Henning also said that, in a sense, Waterstone is the person in this case he has the "least amount of sympathy for," because it is the judge's role to be a "backstop," bearing the responsibility to make sure everyone else is playing by the rules and that a defendant gets a fair trial.
Attorney Gonek, who represents Plants, pointed out that the whole tragic mess was completely avoidable.
"This is a case where, if anyone had done what they were supposed to do — the police officers, the prosecutor, the judge — we wouldn't be having this conversation," he said.
Attorney Moffitt, a former Oakland County Commissioner who runs a one-man private practice in Bingham Farms, has been a driving force in seeing that the public officials involved in this case are held accountable for their wrongdoing.
At the start, he concedes, it was primarily a matter of doing his job — being an advocate for his client.
And there's certainly a practical aspect to all this in that regard. He contends now that, had the perjury issue been exposed, and those who were involved in it prosecuted when it first became known to higher-ups in the Wayne County Prosecutor's office in 2005, then the damage done to the credibility of the Inkster officers and Waterstone — all three of whom testified for the prosecution at the second trial — could have affected the outcome.
But that didn't happen.
And even now, after six years, important questions remain to be answered.
He asserts that chief among them is this: How high up the chain of command did knowledge of Plants' actions go before it was publicly exposed? And why wasn't action taken to address what has clearly proven to be illegal activity?
Certainly, there's been an embarrassing double standard on the part of Prosecutor Kym Worthy, argues Moffitt. As he points out, she took the lead in condemning former Detroit mayor Kwame Kilpatrick when his perjury came to light. And she wasted no time in prosecuting him for that crime, with her office seeking jail time for him.
As she was quoted in the press saying at the time:
"We learn those things as children and it strikes me that a lot of the things we learn in kindergarten as children, as young as 4, 5, and 6, the principles in the criminal justice system, especially about promising to tell the truth, et cetera, it strikes me that even children know that these are things you're not supposed to do, lying and things like that."
But the situation was much different when it was a member of her staff accused of being involved with perjury.
"The way that this case has been reported is disturbing," Worthy said after Aceval pleaded guilty in 2006. "The actions of the defense — not this office or any of our witnesses — led the press to question the character of one of my principal attorneys, Karen Plants. She is known throughout the criminal justice system as a lawyer of high integrity and competence. When questioned about this matter, I asked that some members of the press wait until the whole truth could be told as the prosecution would not and could not join the further exploitation of the facts of this case before its resolution. Not only was Ms. Plants vindicated, it was shown that it was Mr. Aceval was the one engaging in, supporting and encouraging perjury in a grand scheme. He was caught and pled guilty to these charges. Even though this matter got ugly at times, the truth has prevailed, as I knew it would, and once again, justice has been served. Justice can sometimes be slow, but we are patient and confident that it won out."
Now, instead of being vindicated, Plants has been incarcerated.
It remains an open question whether the Attorney Grievance Commission will pursue how higher-ups at the prosecutor's office handled the whole perjury issue. In a confidential letter Worthy provided in response to the commission's initial inquiry, she denied any wrongdoing.
That letter, it should be noted, is now in the public record because Moffitt included it in a court filing. So is his letter requesting a formal investigation of the prosecutor.
He sums up his complaint this way:
"At best, it represents gross dereliction of duty, and at worst, plain criminal obstruction, deliberate deception and cover-up. As to that dichotomy, it strains credulity that anyone would remain that ignorant, or if in fact informed, that derelict ..."
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