Attorney Daniel D. Hajji and Kwame Kilpatrick talk during a Restitution Court Proceeding
There comes a time when one must wonder why people do what they do. Here we have the case of the Wayne County Prosecutor. She was relentless in her pursuit of former Mayor of Detroit Kwame Kilpatrick, who lied to a Wayne County jury about his having an affair with one of his aides. As result, Mr. Kilpatrick lost a lot. He lost his position as Mayor of the City of Detroit. He was disbarred from the practice of law; He spent a number of months in jail; He was disgraced; his status was destroyed; and he became a pariah.
He had to leave Michigan to obtain employment. Mr. Kilpatrick, after his release from jail, was placed on five years’ reporting probation. As a result of his felony convictions, he is forbidden from seeking election to any public office. He is required to pay the sum of $1 million by the end of his 5-year probation period.
There are those who think he did not suffer enough. There are those who wanted him to rot in Jackson Prison for many years. There are others who wished him and his family to be ruined irreparably. Invective was spewed at him by those who wished him ill-will. The worst are those who injected folklore allegations for their personal gain. However, Kwame Kilpatrick is not one to allow adversity to keep him down. He is essentially an optimist who seeks to make the best out of whatever condition in which he finds himself.
Thus, having suffered losses which might have annihilated a lesser man, Mr. Kilpatrick moved to Texas. Instead of being employed at a minimum wage job, he has a decent salary; instead of working in a hostile environment, he has a nice job selling complex computer equipment to the health care industry and a nice office in a nice building. Instead of living in a decrepit part of town, he lives in a nice community. Instead of driving a battered, used car, he drives a nice vehicle. His children attend nice public schools in a good school district. In short, he has managed to prevent the total destruction to which many who have been convicted of felonies are consigned.
There are those who resent the fact that Mr. Kilpatrick is not living in a cardboard box on Woodward Avenue. There are others who are bitter that he does not have to scrounge garbage cans in search of food. These people have a decided antipathy towards Mr. Kilpatrick. Many of them are mean-spirited. Many of them wallow in hatred. Too many of them are so blinded by their loathing of Mr. Kilpatrick that they believe he is doing wrong when the facts of which they are aware show the exact opposite.
Now there are questions about his “lifestyle.” Is there anything in the law or in his sentence which dictates the type of house in which he lives or the vehicle which he drives?
Mr. Kilpatrick is a debtor who owes the City of Detroit $1 million, less the money which already has been paid in restitution. Where restitution is required as part of a criminal sentence, the earnings subject to garnishment can be no more onerous to the probationer/debtor than would be the case of one who was a debtor based upon a civil judgment.
Now, the Prosecutor, who has political ambitions beyond her present position which may place her on the ballot in next year’s general election, is seeking to have the Mr. Kilpatrick hauled before this Court. She claims that he has “flagrantly” violated probation orders. Yet, the truth is that he is in compliance with those orders, even though those orders are not in compliance with the law. The Prosecutor makes accusations claiming lack of compliance, the following is alleged:
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a. The Prosecutor claims that the $3,000.00 that Mr. Kilpatrick paid on September 16, 2009 was “exactly half of the payment he was ordered to make monthly.” False! Mr. Kilpatrick’s plea agreement and sentence did not require that any monthly payments be made. On March 10, 2009, the Court Ordered Mr. Kilpatrick to pay $6,000.00 a month for the first six months of his employment. That was accomplished when the August payment was made. Thereafter, pursuant to that same Court Order, Mr. Kilpatrick was ordered to pay 30% of his monthly income. His income was reduced to $10,000.00 per month because he did NOT receive any draws from his Employer. Thus, he was required to pay $3,000.00 for the restitution on the $10,000.00 income. If the Prosecutor read the order march 2009 before making accusations that Mr. Kilpatrick “flagrantly” violated this Court’s orders, she would not be in a position to claim any legitimacy to her accusation. She received the Court’s March 10, 2009 order at the time it was issued. She has known for a full 6 months that the 30% garnishment would be adjusted according to the Mr. Kilpatrick’s income. Moreover, she knew that Mr. Kilpatrick’s income would be reduced after 6 months once the advances on future pay ceased, pursuant to the letter of March 2, 2009, which Mr. Kilpatrick’s employer sent to the Court. At the latest, that letter was sent to the Prosecutor 2½ weeks before she made the accusation against Mr. Kilpatrick; however, it is believed that she received a copy in March, 2009. In any event, at the time of the Prosecutor’s Motion, dated September 23, 2009, and signed by her, the Prosecutor was fully aware that the $6,000.00 payment was no longer applicable.
Query: given the fact that the Prosecutor was in possession of documentation establishing that the $3,000.00 payment was not in contravention of this Court’s orders, why did she make the false accusation that Mr. Kilpatrick was “flagrantly” violating this Court’s orders by paying the $3,000.00 September restitution payment?
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b. The Prosecutor claims that other than his last two pay stubs from his employer, Mr. Kilpatrick failed to disclose financial information to the probation department or this Court. False. In February, 2009, Mr. Kilpatrick made a full disclosure to this Court and the probation department of his assets. Either the Prosecutor has no knowledge as to the facts which are applicable to the issue of Mr. Kilpatrick’s disclosure of his financial information, in which case the Motion should not have been filed because there was a lack of a proper grounding in fact to provide a foundation for her claims; or she was aware that Mr. Kilpatrick had provided financial disclosure in February, 2009, as a result of which she made a knowingly false statement to the Court. In the first situation, she would be failing to possess knowledge of which one in her position should be aware; in the other, she is willing to disregard facts which are not convenient for her personal ambitions. In either case, a serious question arises as to whether the Prosecutor is so blinded by her animus toward Mr. Kilpatrick and by her own personal interests that she is failing to perform her responsibilities in a professional and appropriate manner.
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c. The Prosecutor claims that Mr. Kilpatrick has violated the Court’s orders by failing to disclose the assets of his spouse, Carlita Kilpatrick. Such assumes that Mr. Kilpatrick is in possession of such information. Certainly, one can only disclose that of which one is aware. However, the Prosecutor has not set forth the basis upon which she claims that Mr. Kilpatrick has the information which is sought. If all the Prosecutor has in support of her claim that Mr. Kilpatrick “flagrantly” violated this Court’s orders is supposition, assumption, guesswork and conjecture, such do not constitute facts. In order to claim that Mr. Kilpatrick has violated the Court’s orders, whether “flagrantly” or not, the Prosecutor must have facts upon which to base the claim that Mr. Kilpatrick did not make disclosures of information in his possession. In other words, the Prosecutor must make disclosures of the basis upon which she claims that Mr. Kilpatrick did not make disclosures. This has not been done.
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d. The Prosecutor claims that Mr. Kilpatrick has not made disclosure of assets held for Mr. Kilpatrick by third-persons. What assets? What third persons? The Prosecutor does not identify any such assets or persons. If the Prosecutor knows of such assets or persons, she should disclose the same. If not, it is unprofessional and improper to make such an accusation.
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e. The Prosecutor claims that Mr. Kilpatrick has failed to disclose gifts or benefits received. Obviously, such is not true. Mr. Kilpatrick disclosed certain gifts for which he was required to forfeit 30% of said gifts’ imputed value. This has been known to the Prosecutor for several months. If there are gifts which Mr. Kilpatrick received other than those disclosed by Mr. Kilpatrick, the Prosecutor should reveal the same. There has been no basis to claim that a third-person is paying for any of the costs for Mr. Kilpatrick to live in a residence in Texas. The Prosecutor should be in possession of facts which support a conclusion that Mr. Kilpatrick is receiving a gift from a third-person, rather than basing the same upon an assumption. The fact that the lease for the residence in which Mr. Kilpatrick is living may be in someone else’s name does not mean that Mr. Kilpatrick is not making payments on the same. The Prosecutor simply assumes certain facts rather than being in possession of them. This appears to be a pattern—rather than being possessed of facts to form a foundation for the motion, the Prosecutor makes assumptions. Clearly, assumptions are no substitute for facts.
A motion should be well grounded in fact. By signing the Motion, the Prosecutor has certified that it is well grounded in fact. It is difficult to comprehend how the Prosecutor, in filing this Motion in the absence of facts establishing a good-faith basis for such a motion, comported herself with the requirements of the Court Rules. It should be remembered that, under MCR 6.002, the Rules of Criminal Procedure, as set forth under Chapter 6 of the Michigan Court Rules, are intended to promote a just determination of every criminal proceeding. They are to be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.Such is in keeping with the purpose of MCR 2.114, which the Prosecutor appears to have violated. -
f. The Prosecutor also claims that Mr. Kilpatrick failed to report the benefits wherein his legal expenses for criminal defense were paid for by a third party. Such a claim is specious. First, the requirement to report gifts and other benefits was first set forth in this order march 2009. Thus, the payment of fees, which occurred prior to March 10, 2009, was not required.
Moreover, this issue was reported over five (5) months ago in The Detroit News of April 9, 2009, wherein it was disclosed that prior to his taking his plea or being sentenced, Mr. Kilpatrick’s re-election committee paid legal expenses for Mr. Kilpatrick’s criminal defense. The newspaper reported that according to records filed with the Wayne County Clerk Elections Division, the last such payment was made on September 2, 2008. Such records are public records which have been available to the Prosecutor, the Court and anyone who is interested. A major business newspaper, on July 10, 2009, reported that although Michigan campaign finance laws relating to allowable expenditures of campaign funds are vague, the Wayne County Clerk determined that the expenses were proper. Inasmuch as the expenditures were made prior to any plea, prior to the sentence, and prior to the March 10, 2009 order of this Court, and have been reported fully in the media and scrutinized by the Michigan Secretary of State and the Wayne County Clerk, it is difficult to understand why the Prosecutor is alleging that such constitutes a violation of this Court’s orders. This appears to be yet another instance in which the Prosecutor is making baseless accusations when no impropriety has occurred. -
g. The Prosecutor makes the silly claim that Mr. Kilpatrick has not assigned the bond which he posted at the time of his arraignment. The bond is on deposit with the Court. If the Prosecutor provided Mr. Kilpatrick with the paperwork to have the assignment made, he would sign the same. If the Prosecutor were truly interested in having proceeds of the bond turned over to the City of Detroit, the Prosecutor could have made a motion with this Court for the bond to be forfeited to the City of Detroit, inasmuch as Mr. Kilpatrick already agreed to the same. However, in the 11 months since the bond was to have been turned over to the City of Detroit, the Prosecutor has done nothing except to cast blame on others for her own neglect in presenting paperwork to Mr. Kilpatrick or otherwise filing a motion with this Court to have the bond forfeited to the City of Detroit. It seems that the Prosecutor is more interested in casting blame on Mr. Kilpatrick than in securing restitution for the City of Detroit.
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h. The Prosecutor also claims that Mr. Kilpatrick has failed to make assignments of his Michigan and Detroit pensions to the City of Detroit. Once again, Mr. Kilpatrick has not been presented with paperwork by either of the two pension systems. Apparently, the Michigan system requires some procedural activities to be undertaken before they are prepared to present paperwork to Mr. Kilpatrick. The delay in the Detroit pension system’s presentation of paperwork to Mr. Kilpatrick is unknown. Neither the plea nor the sentence called for Mr. Kilpatrick’s Detroit pension to be forfeited.
In conclusion, the Prosecutor’s Motion is based upon statements which are false. The entire premise for relief stems from untruths. In the real world, where untrue statements entitle the purveyor of the falsehoods to nothing, a request for relief would be denied upon discovery of the falsehoods. There is no reason why such result should not occur in this forum. Mr. Kilpatrick’s restitution payments were dropped consistent with the Court Order. In that order, it states that his payment would be adjusted to 30% of his wages after the first 6 months. So, in the first 6 months, his wages (and Employment draws) were $20,000 per month, thus he was required to pay $6,000 per month. In that same Order, it states that after 6 months his restitution payment would be adjusted in accordance to his wages; so when his wages dropped from $20,000 to $10,000 per month, so too should his restitution amount, i.e., 30% of $10,000 (monthly wage) = $3,000. This is a simple mathematical equation even a 5th-Grader can figure out.
