Michigan Prosecutorial Misconduct

A study of criminal appeals from 1970 to the present revealed 212 Michigan cases in which the defendant alleged prosecutorial error or misconduct. In 37, judges ruled a prosecutor’s conduct prejudiced the defendant and would have reversed or remanded the conviction, sentence or indictment. In 12, a dissenting judge or judges thought the prosecutor’s conduct prejudiced the defendant.

Out of the 37 cases in which judges found the prosecutor’s conduct prejudicial to the defendant, 31 involved improper trial arguments, witness questioning and other tactics. Four involved the prosecution not disclosing evidence to the defense. Two involved pre-trial tactics.

The Oakland County Prosecuting Attorney’s office was responsible for 16 out of the 212 cases in which defendants alleged prosecutorial misconduct. Out of those, appeals courts reversed five convictions due to a prosecutor’s conduct. Four of those, all of which occurred in the last ten years, dealt with improper arguments at trial.

Former prosecutor Steven Cabadas said the Oakland County office was unique because of then District Attorney Richard Thompson’s “no plea bargain policy.”

“Nowhere in the country was there anything quite like Oakland County,” Cabadas said. “We tried a horrendous amount of cases.”

He said the large number of cases brought before a jury affected how some perceived their work. “When it came to that office, we were often being accused of being cowboy prosecutors,” he said.

In 2001, the state appeals court reversed Prek Leshaj’s criminal sexual conduct conviction because former Oakland County prosecutor Michael Salhaney made prejudicial arguments and comments to the jury.

“[The defendant] lied,” Salhaney said to the jury. “And who are you going to believe, the liar, or [the complainant] with her sense of deep-rooted belief in God and righteousness?”

The appeals court held that this argument, coupled with other improper comments, denied Leshaj a fair trial.

Salhaney said he was shocked to learn that the court reversed Leshaj’s conviction.

“It’s horrible,” he said. “That guy is a rapist.”

Salhaney said it should have been proper for him to argue that the victim’s religious beliefs prevented her from lying, especially because the defendant was attacking the victim’s credibility.

“Generally, such an argument is improper,” he said. “All I said was, look, this woman is so wrapped up in her beliefs that she wouldn’t lie—it’s against her being.”

After the reversal, the Oakland County prosecutor’s office said, Leshaj pleaded no contest and the court sentenced him to a year in prison. Salhaney worked as a prosecutor for ten years before moving into private practice and working as a municipal attorney.

In 1995, the state appeals court reversed Eric Hurt’s conviction for criminal sexual conduct because former Oakland County prosecutor Steven Cabadas “snatched defeat from the jaws of victory.”

“That was a clean trial,” Cabadas said. “There is no question in my mind that Hurt brutally raped this girl—the co-defendant testified against him for Christ’s sake.”

In response to defense counsel’s objection to the introduction of the victim’s psychologist, Cabadas said he “intend[ed] to use every prejudicial and detrimental means necessary in prosecuting” Hurt.

“The excesses of the prosecutor are apparent in the entire record,” wrote the appeals court judges. “His conduct was egregious and touched nearly every aspect of the trial. It was offensive to the maintenance of a sounds judicial system.”

“I stand by what I said [at trial],” Cabadas said. “If the truth inflames, I’m sorry--but it’s still the truth.”

After the reversal, the state retried and convicted Hurt of the same charges, Cabadas said. He worked as a prosecutor for about eight years before moving into private practice.

In 1993, the state appeals court reversed Saad Bahoda’s conviction for conspiracy to possess with intent to deliver cocaine because former Oakland County prosecutor Lawrence Bunting used Bahoda’s Iraqi nationality against him.

During the trial, which took place in 1991 during the third and fourth weeks of the Persian Gulf War against Iraq, Bunting made numerous references to Bahoda’s nationality. He vouched for the credibility of a state informant and appealed to the jury’s fear of drugs in their neighborhood.

“The prosecutor also elicited the Arabic nationality of several witnesses who allegedly conspired with defendant to sell drugs and asked them about the large Chaldean population in the Detroit area,” wrote the appeals court in the decision that reversed Bahoda’s conviction. “He even referred to ‘the Arabs’ during closing argument.” Bunting said he referred to “the Arabs” because that was the exact language a state’s witness used when he took the stand.

“The major prosecutor witness in that case was a Cuban national who testified that he delivered cocaine to ‘the Arabs,’” Bunting said. “There was no attempt to ask the jury to convict based upon nationality.”

The state appealed the reversal, alleging the prosecutor’s arguments were not prejudicial. In 1995, the state Supreme Court reversed the appeals court’s decision and reinstated Bahoda’s conviction.

“We are not persuaded that the cumulative effect of these errors in this six-day trial warrants a new trial,” wrote Justice Dorothy Riley. “Although frequent, the ethnicity references were not deliberately injected, did not mislead the jury, and, in the context of other evidence … do not rise to the level of error requiring reversal.”

Justice Charles Levin dissented, writing that there “should be zero tolerance of ethnic references.”

“The prosecutor opened and closed with ethnic references…In his closing argument, the prosecutor referred to “99 kilograms that the Cuban said he was delivering to the Arabs,” Levin wrote. “If the prosecutor had spoken of the Irish, or the Jewish, or the Italian, or the German connection, we might be more sensitive in our reactions.”

Bunting served as a state prosecutor for about 12 years and a federal prosecutor for about three years before moving into private practice in criminal defense.  ¶ 9:26 PM