Editor, Clare court spar over withheld docs

April 19, 2013

By Pat Maurer
Review Correspondent

By Pat Maurer
Review Correspondent

Wednesday, Morning Sun Editor Rick Mills lost the first round in court of an ongoing issue with Clare Magistrate Karen Willing, Prosecutor Michelle Ambrozaitis and 80th District Court Judge Joshua Farrell.
For three months, Mills said he has been trying to obtain a public court record concerning the investigation into the death of Floyd Odell Dennis Jr., 68, of Harrison. In a Facebook post Wednesday, Mills said, “the prosecutor and magistrate worked very hard for three months to illegally hide key information. There is something they do not want made public.”
Finally Mills requested the document under the Freedom of Information Act [FOIA].
Just last Tuesday, Mills received the document, an “Affidavit in Support of Complaint for Warrant,” which he had first asked for the day after Oanh Kieu Bass, 32, was arrested for the murder in January.  But, more than 16 lines of the document had been “redacted” [crossed out], which Mills says is illegal for that type of document.
Dennis was a longtime employee of the Harrison School District and a member of the Board of Education. He was found January 18 dead on a couch in a home on Huckleberry Trail.
According to the recently released information from Detective Sgt. Michael Coon, when he arrived at the scene he identified Dennis, who he had known for 20 years and observed what he called, “an apparent gunshot wound to the back of his head. The ensuing investigation, as reported by Coon, led to the arrest of Bass, 32, a Remus woman who had moved to mid-Michigan two years before. She was taken into custody and charged with open murder.
Coon also said in his affidavit that he had observed three sets of footprints going into the house and two coming out. The largest prints led from Dennis’s vehicle to the house but not back out. He also said he found tire tracks that indicated another vehicle had arrived before, and left after Dennis’s vehicle was parked at the home. His investigation led to Bass.
In a letter responding to the FOIA request sent to Mills along with the document, Clare Prosecutor Michelle Ambrozaitis said she had withheld the [redacted] information because of the “Michigan Rules of Professional Conduct” that she, as prosecutor, “exercise reasonable care to prevent investigators, law enforcement personnel, employees, or other persons assisting or associated with the prosecutor in a criminal case from making an extra judicial statement that the prosecutor would be prohibited from making under Rule 3.6.”
She cited Section 2 under the MRPC, which said, “In a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission or statement given by a defendant or suspect, or that person’s refusal or failure to make a statement.”
In the letter, she also said she had denied Mills’ request for a copy of the police report because “we are still receiving information form the crime labs…;conducting interviews and follow-up investigation; the defendant is still pending criminal responsibility determination; and we have not yet had a preliminary examination in this matter.”
The preliminary exam was held Wednesday morning and Judge Farrell ruled that Bass is competent to stand trial for Dennis’ murder.
At the hearing on sealing portions of  Detective Coon’s request for a warrant, Ambrozaitis presented a  motion to keep the redacted portions of the affidavit supporting the arrest warrant sealed. Judge Farrell ruled that he found cause to keep the redacted parts “sealed.” He agreed with Ambrozaitis’ claim that releasing the information could jeopardize a witness or Bass’s right to a fair trial.
In her response to Mills’ request, Ambrozaitis had said, “…at the present time, the Freedom of Information Act may be in direct conflict with my ethical obligations and also the defendant’s Constitutional right to a fair and impartial trial.”
When asked Tuesday if she could clarify what type of information she was referring to, Ambrozaitis said she couldn’t release any additional information before the hearing.
Wednesday, Tom Weiss of Mt. Pleasant, the attorney representing the Morning Sun at the hearing, filed a reply to the prosecutor’s motion. He said the matter isn’t about the Freedom of Information act and that the defendant already had due process, according to a Thursday Morning Sun article by Susan Field.
In an editorial column in the Morning Sun last Sunday, Mills charged that the record had been “hidden” because of an apparent “cozy relationship” between the magistrate and prosecutor.  He said he could only speculate why “Magistrate Willing, at the request of Prosecutor Ambrozaitis, had sealed the document from public inspection.” He added that court staff including Judge Farrell told them “it [the document] was sealed for 56 days as allowed under law.”
After searching and consulting two attorneys, Mills said he found that, “No such state law or court rule exists. Affidavits used to obtain search warrants are covered under a 56-day closure option, but not those for arrest warrants.” He said he contacted Judge Farrell about the matter and was referred to Sheriff John Wilson and Prosecutor Ambrozaitis. Wilson, when contacted told him he had been told to “say or release nothing.”
Under Michigan Court Rules, Mills said, closing a court record in Michigan is “very difficult” and can occur “only as a last resort.” He said the process includes a written motion reviewed and considered by a judge after hearing all concerns followed by a ruling made “on the record and preferably in writing.”
Mills went back to the courts with that information and requested the “written motion and court order.” After two trips, he was told by what he said was an “angry” magistrate, that there was no written opinion or court ruling to seal the document. “The prosecutor only filed the motion after she found out it was required,” Mills said.
“What bothered me the most was that the court kept this file secret for three months, refusing all requests to see it, and that during that time neither the magistrate, the judge or the prosecutor knew the procedure for closing a court file in Michigan. Or, if they did know, they intentionally chose to ignore it,” Mills said Wednesday evening. “Further, we know of other affidavits closed under the same willy-nilly illegal process. This is not an isolated case. It’s a systematic effort to keep key documents secret – documents that serve as a check and balance. In our society, police should not be able to arrest and judges jail someone without explaining why they were arrested.”
In the courtroom Wednesday, Ambrozaitis said, “The people are not trying to keep secrets. The information will come out in due course.”
On Facebook Mills said, “The Judge basically said that if the prosecutor and defense agree that a file should be shut, then shut it will be in Clare County.”
He said that the matter may go to the Attorney General, Court of Appeals or the Michigan Supreme Court next.

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