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November 2013 - Home Court Advantage

Whenever I have a case out of town, I worry about getting “home-towned.” My first experience, which I remember as if it were yesterday, assuming a few decades ago qualifies as “yesterday,” was in San Diego. San Diego had a notorious reputation in those days for favoring local counsel. I was less concerned than I should have been because my case was in federal court. I was part way through my argument when the judge interrupted me with a question that took me completely by surprise. He asked me if I was a member of the Southern District Bar. After what I’m sure was more than a moment’s hesitation, I said that I was.

That, it turned out, was not the end of the inquiry. He stopped my argument in its tracks and asked his clerk to go check. These were the days before computers and the clerk had to physically leave and go somewhere. After an excruciating delay, the clerk returned from the bowels of the clerk’s office and allowed as how I had, despite contrary suspicions, told the truth.

After the hearing, I asked my opposing counsel, “What was that all about?” His one word answer which I am still not sure I believe was, “Revenue.”

Several years later, I had a series of land fraud cases in El Centro. I had no idea where El Centro was. I since found out. You drive to San Diego and turn left and just before you get to South Carolina, there is an off-ramp past a prison. It is a long, boring drive except for the part through a mountain pass where sudden huge gusts of wind can blow your car into the next lane, which is a problem because the next lane is oncoming traffic.

Everything turned out well, and in talking to one of the judges in the aftermath, I told him that I had worried about getting home-towned but was pleasantly surprised. He told me that they only had a half-dozen or so lawyers there and they were delighted to see a fresh face.

Geniene Mott did not have to worry about being home-towned. She definitely had a home-court advantage, Detroit style. She was the “complaining witness” in People v. King wherein Mr. King was subject to a sentencing hearing in which he was ordered to pay Ms. Mott child support arrearage. Unlike you and me, Ms. Mott did not have to park with the hoi polloi. She parked in the judges’ reserved spaces. She was able to bypass security requirements banning cell phones by placing her phone in the hearing judge’s truck. The hearing judge, Wade H. McCree, retrieved the cell phone from his truck, put it in a manila envelope and then gave it to a courtroom deputy to hand to Ms. Mott so that she and the judge could exchange text messages during the hearing. Judge McCree ordered Mr. King’s plea agreement to be “placed on a tether” until back support was paid and said he “would consider withdrawing the plea agreement if the amount due was not paid by the end of the month.”

In another case, People v. Tillman, the defendant, one Damone Tillman, was Ms. Mott’s “cousin or uncle.” Mr. Tillman had a child support problem that resulted in his landing in jail. Ms. Mott sent Judge McCree a text message saying that “she and her family would be in his courtroom shortly on the Tillman case.” It seems that Mr. Tillman’s case was not on calendar that day and, indeed, was never called. Nonetheless, the judge reduced his bail and arranged for his release upon showing a bail receipt.

How was it, you ask, that Ms. Mott secured such favorable treatment? The answer is not complicated: she was “doing” the judge. Or maybe the judge was “doing” her. From a perspective of judicial ethics it is, I suspect, a distinction without a difference. The venue was his chambers, bringing full meaning to the phrases ex parte communication and in camera review.

I would say that it was one of those May-to-December relationships, but in this case it ended in mid-November when Judge McCree reported to the county prosecutor that he was being “stalked and extorted by Ms. Mott,” leaving out the fact that she had been a complainant in a case before him. (Note to self: be careful what you report.)

In any event, Judge McCree ended up in formal hearings before the Michigan Judicial Tenure Commission. It didn’t help that he testified that it “did not ‘dawn’ on him to recuse himself from People v. King,” that it was an “oversight,” and he “wasn’t thinking about it.”

While the Commission probably would have disbelieved that testimony all by itself, it had the benefit of the judge’s actual text message to Ms. Mott: “Second, you are the complaining witness on a case that is before me. Naturally if it got out that we were seeing each other before your B.D.’s case closed, everybody could be in deep shit.” That was, if not eloquent, at least prescient. “B.D.” according to the commission “presumably refers to ‘baby daddy.’”

I think it is probably fair to say that this was not a difficult call for the Commission which recommended that Judge McCree be removed and conditionally suspended without pay if the judge was re-elected in the November 2014 election. Do they re-elect removed judges in Detroit? I guess financial bankruptcy is not the city’s only problem, but I digress.

If there is just one moral of this story, as opposed to many, I guess it could be said that voluntary disrobing can lead to involuntary disrobing.

Richard W. Millar, Jr. is a member of the firm of Millar, Hodges & Bemis in Newport Beach. He can be reached at millar@mhblaw.net.

 
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