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Felony case backlogs grow in Detroit area courts

As Michigan nears the two-year mark since COVID-19 was found in Michigan, efforts to address a backlog of felony court cases across the state are being sabotaged by the omicron variant and its record-setting case counts and hospitalizations.

With test positivity rates in the nine-county southeast Michigan region at 32.5% from Jan. 12-18 on the MI Safe Start Map, courts across the region are pivoting once again to place restrictions on in-person proceedings.

Courts statewide have had success reducing their misdemeanor cases, according to Michigan Supreme Court records. There were 19,112 pending misdemeanor cases past the 126-day guideline at the end of December 2020. The number declined 25% to 14,360 cases at the end of last year, said John Nevin, a spokesman for the state Supreme Court, which sets the rules and guidelines for Michigan's courts.

But more serious felony cases continued to pile up.

By the end of December 2021, the number of pending Michigan felony cases that were past the 301-day guideline totaled 4,975, a 20% increase from the 4,134 felony cases pending at the end of December 2020, according to the state Supreme Court. 

Virtual hearings, held primarily on Zoom and YouTube, have largely replaced in-person proceedings and allowed courts to handle routine hearings such as arraignments and preliminary hearings.

"Most courts are allowing virtual hearings to anyone who requests one," Nevin said. 

How Metro Detroit is affected

Jury trials in Oakland County have been halted until Feb. 25. Oakland County Court Administrator Kevin Oeffner said the Oakland County Circuit Court is trying to upgrade the face coverings worn by judges and court staff.

"Our judges will be encouraging all courtroom participants to wear KN-95 masks, if possible," Oeffner said. "We have put in a request to the county for hundreds of KN-95 masks which we hope can be delivered to the court soon." 

In Wayne County, court officials had been discussing a plan to hold more jury trials by using the Huntington Place, formerly the TCF Center, for prospective jurors, said Wayne County Circuit Court Chief Judge Timothy Kenny. The conference center was considered due to its large capacity, which would allow COVID protocols such as social distancing among individuals who show up for jury duty.

But the conference center is now being used by the city of Detroit for rapid COVID-19 testing after Mayor Mike Duggan announced the plan in early January.

Earlier this month, officials at Detroit's 36th District Court placed restrictions on in-person proceedings citing the increase in COVID cases in Detroit, limiting access to people who have scheduled hearings or paying a bond.

"Due to the rapid and dramatic increase in the City of Detroit’s COVID-19 positivity rate, it has become necessary to limit in-person transactions to every extent possible," court officials said.

Chief 36th District Court Judge William McConico said once the omicron variant "showed signs of an impending surge," the court reduced employee numbers in the building and expanded remote work. "At this time, only those employees whose jobs cannot be completed from home are on a rotation schedule for in-person duty."

He added the decision was made in hopes of "limiting contact and exposure" to the virus for employees "the community as a whole."

Courthouses in Macomb and Livingston counties have also implemented new restrictions and postponed some trials. 

Livingston County adjourned trials until the end of January.

There's no mandate to cancel trials in Macomb County, and decisions are being left to individual judges, said Chief Macomb County Circuit Judge James Biernat Jr.

"Some trials have been postponed, but there is no mandate to postpone all trials," Biernat said. "We continue to consult with the Macomb County Health Department and State Court Administrative Office regarding safety precautions.

"We have opportunities for remote proceedings and adjournments on a case-by-case basis. Timely resolution of matters is important for the sake of witnesses' memories, retention of evidence, and justice for the parties."

Waiting game

Detroit police Chief James White has condemned the delay in the court proceedings in connection with the fatal shooting of an off-duty Detroit police officer.

Officer Elaine Williams was shot and killed at her home in the 200 block of Belton Street in Garden City on June 3, 2019, during a suspected domestic violence incident. 

Williams' boyfriend, Eddie Ray-Jr. Johnson, is accused of shooting Williams, 34, four times in the head and then himself once in the shoulder as a cover-up for the shooting, prosecutors say.

Johnson is due back in court on Oct. 4. He was bound over in 2019 about three months after Williams was killed.

“This doesn’t make sense. There have been cases that happened before Elaine was killed, and they’ve already been adjudicated," White told The Detroit News. "Elaine was an exemplary officer who conducted herself in a way that any parent would be proud, who was murdered in cold blood in her driveway. What do I say to her family after three years? Her children are getting older. They’re asking questions."

Wayne County Circuit Judge Lawrence Talon came under fire last year when he refused to increase Johnson's $100,000/10% bond in April. Johnson posted the bond and has been on house arrest with a tether awaiting trial.

"His parents have been able to see him at Thanksgiving and Christmas," White said. "Elaine’s family had that taken away from them.”

Man accused in killings released

Livingston County's halt to trials derailed a high-profile second murder trial planned for Jan. 10.

Jerome Kowalski was convicted in 2013 for the 2008 murders of his brother and sister-in-law, Richard and Brenda Kowalski. He was sentenced to life in prison, but his conviction was overturned in 2019 because of the scandal surrounding former Livingston County Judge Theresa Brennan.

Brennan was removed from the bench by the Michigan Supreme Court in June 2019 for judicial misconduct. She was accused of having an affair with then-Michigan State Police Lt. Sean Furlong, who was a key witness in the first murder trial. The state Attorney General’s Office charged Brennan with three felonies, and in January 2020, she pleaded guilty to perjury, a 15-year felony, for lying under oath. Charges of misconduct in office and tampering with evidence were dismissed.

Jerome Kowalski's attorney, Mark Gatesman, said while he understands the delay due to the pandemic and the recent surge of omicron cases, he wants to see his client released pending trial.

On Thursday, District Judge Matthew Stewart granted Kowalski a $50,000 cash bond and ordered him to wear a tether if he is released while he awaits trial.

Gatesman told The News Thursday that he is pleased with the judge's decision and that Kowalski's relatives are working on getting the bond money together.

"We look forward to his day in court," Gatesman said. "He has not been free since May 2008."

Like many defense attorneys, Gatesman said while he feels the collective frustration of  having the justice system brought to a crawl, he understands the delay.

"It slows things down, but there is a reason for it," Gatesman said. "... These are unprecedented times. Things will never be the same."