CINCINNATI (CN) - The 6th Circuit seemed unlikely Tuesday to throw out convictions against former Detroit Mayor Kwame Kilpatrick for corruption and extortion.
Kilpatrick is serving a 28-year prison sentence on the 24 charges of which he was convicted in March 2013 after a jury found that bribes, kickbacks and other crimes earned the disgraced mayor more than $840,000 on top of his salary.
Noting that Kilpatrick's onetime defense team has gone on to work at a firm suing Kilpatrick in civil court, the mayor's appellate attorney Harold Gurewitz claimed Tuesday that a conflict of interest renders the convictions void.
Barely two minutes into this argument, Judge Eugene Edward Siler Jr. interrupted Gurewitz to ask whether the attorneys participated in the civil suit or simply worked at the law firm.
In what would quickly become the mantra of the argument to follow, Gurewitz replied that he wasn't sure, but that an "inquiry" into the relationship should have been conducted by the lower court to answer such questions.
Siler's colleagues on the panel members, Judges Richard Allen Griffin and Helene White, also had doubts about Gurewitz's argument.
Judge Griffin conceded that the attorneys' actions violated Michigan law, but maintained that, to establish a Sixth Amendment violation, Gurewitz must show that the lawyers "actively worked against his client's interests."
When Griffin asked whether Kilpatrick knew why his previous attorneys withdrew their representation, Gurewitz once again pointed to the lack of a court inquiry into the matter.
He argued that the type of situation faced by his client "goes to the heart of the integrity of the justice system."
Judge White finished the line of questioning by wondering "if the judge had inquired and established a true division, would we be here today? We know Michigan rules were violated, but what about constitutional grounds?"
Gurewitz pointed to several cases cited in his brief, including Mickens v. Taylor, although Judge Griffin said he was "unconvinced" and that Gurewitz "must find reversible error" to prove a constitutional violation.
U.S. Attorney Andrew Goetz faced considerably less scrutiny from the panel, while citing the same case law referenced by Gurewitz.
Goetz clarified that in Mickens, the Supreme Court limited the Holloway rule to cases involving one attorney representing multiple defendants, and went on to point out that Gurewitz failed to cite any case law that did not conform to those requirements.
Judge White asked how much the lower court judge knew about the attorneys' relationships with Kilpatrick and their firm, to which Goetz responded that the judge knew there was "no financial connection whatsoever and no shared files."
Goetz concluded by pointing out that Kilpatrick was served with a court order informing him that his attorneys were withdrawing their counsel well before the conclusion of his criminal trial, and that the notice also included the reasoning behind their departure.
During his rebuttal time, Gurewitz faced more questions from the panel, most notably a line of questions from Judge Griffin concerning the court order.
Gurewitz once again claimed that, because no judicial inquiry was made into the matter, nothing in the record indicated whether Kilpatrick received the order.
Judge Griffin pressed further: "Are you saying he didn't read it?"
Gurewitz responded: "I'm not disagreeing, [but] there is no evidence in the record."
The panel also heard arguments from Susan Van Dusen, attorney for Bobby Ferguson, a friend of Kilpatrick and owner of several construction companies in Detroit.
Van Dusen centered on the admissibility of testimony provided by federal agents during the criminal trial.
She pointed out that, while only 151 text messages were introduced into evidence, the agents drew conclusions from a batch of over 370,000 texts collected in the case.
All three judges spent a significant portion of time during Van Busen's argument and rebuttal attempting to determine "the worst thing that happened" because of the testimony's inclusion in the trial, to little avail.
Near the end of her rebuttal, Van Dusen admitted it was like "asking which of my two sons I love the most," but finally cited several questions from the agents' testimony, all of which left the panel nonplussed.
While Van Dusen argued that the prosecutor "smuggled in" inadmissible evidence, Judge Griffin said he found nothing "egregious" about the testimony, and Judge White was left wondering, "Where is the smuggled-in evidence?"
No timetable has been set for the panel's decision.
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