In the summer of 2014, as the City of Detroit was shutting off water to thousands of homes a week, a small group of activists resorted to civil disobedience in an attempt to draw attention to the crisis.
They gathered before sunrise on East Grand Boulevard, outside a facility operated by Homrich, the demolition/environmental contractor paid more than $5 million to conduct the shutoffs.
The protestors’ goal was to prevent shutoff crews from being dispatched that day. About 20 people marched, chanted, sang songs, and blocked the gate to the company’s parking lot.
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Detroit police were on the scene early and spent much of the day on the sidelines watching a peaceful and low-key protest. Finally, a blue police bus was called in to take away nine protestors who were essentially asking to be arrested, to bring more attention to the issue and get the case in front of a jury.
One protestor was never charged with a crime, another settled the case without going to trial. Now, more than 18 months later, the cases of the seven remaining protestors arrested last summer have yet to be settled, with the city of Detroit Law Department dragging out the proceedings with one legal maneuver after another.
In late November, the city’s obstructionism hit a new low, according to attorneys representing the protestors.
In documents filed with Wayne County Circuit Court, attorneys for the protestors contend that city lawyers twice engaged in “unethical and illegal ex parte” meetings with Wayne County Circuit Court Judge Michael Hathaway.
Under most circumstances, in order to ensure that due process rights are protected, opposing counsel is required to ensure the other side is aware that a meeting with a judge is taking place so that they have the opportunity weigh in in whatever matter is being decided; meetings where that doesn’t happen are referred to as ex parte.
At least twice during the prosecution of the Homrich protestors city attorneys met with a judge without telling defense attorneys beforehand.
Melvin “Butch” Hollowell, the head of the city’s legal department, who participated in one of the ex parte meetings, declined to be interviewed for this story.
“The Law Department does not comment on on-going litigation,” he said in an email. “We will do our talking in court through pleadings, evidence and oral argument.”
In court on Friday, Linda Fegins, an attorney for the city, denied any wrongdoing on the city’s part.
But Judge Robert J. Colombo, chief judge of Wayne County Circuit Court, had a decidedly different opinion.
The ex parte meetings should not have occurred the way they did, said Colombo Friday during court proceedings involving the case.
“That should never happen,” he said. "Never.”
He also said that he was “very unhappy” with the way the city attorneys’ actions.
Furthermore, he said, the case had become a “disaster."
Secret meetings
The first secret meeting occurred in November, just before seven of the protestors were set to go to trial in front of 36th District Court Judge Garrett.
Two of the protestors – longtime community activists Marian Kramer and Rev. Bill Wylie-Kellermann – were supposed to have their cases heard by a jury. Another five defendants would participate in what is known as a “bench trial,” with the judge rendering a verdict. All seven were to be tried at the same time, in front of the same judge.
Attorneys for the protestors would have preferred to have all of their clients in front of a jury at the same time. That’s the most efficient and least costly approach for everyone. The city, however, insisted that no more than two protestors at a time be allowed to go before a jury.
Doing that would have the effect of stretching things out even longer, putting an additional strain on defense attorneys. So the combination jury trial/bench trial was proposed by the defense attorneys and approved by Judge Garrett.
The trial was set to begin on Nov. 18.
One day prior to the start of that trial, however, attorneys for the city – without informing defense attorneys – met with Judge Hathaway and obtained an emergency order stopping the bench trial over five protestors from going forward.
“At no time were any of the defense attorneys given any opportunity to be heard in opposition to this unethical and illegal ex parte motion for a stay of proceedings,” asserted defense attorneys in court documents.
There was no record of the city attorneys’ meeting with Hathaway.
According to the defense motion: “To this day, neither [Hathaway’s] court nor either of the [city attorney’s] who were present have prepared and filed any memorandum or document to settle the record and summarize for the Defendants and their counsel exactly what was said during the illegal ex parte hearing that occurred on Nov. 17.”
Making the case for action
Although the bench trial of five protestors had been postponed, the jury trial of Kramer and Wylie-Kellermann (who represented himself) was allowed to proceed as scheduled. A jury was selected, opening statements made and, over the course of seven days, witnesses took the stand and testified.
Prior to closing arguments on Nov. 30, attorneys for the city asked Judge Ruth Ann Garrett to declare a mistrial, claiming that the jury had wrongly been allowed to hear “highly inflammatory and unduly prejudicial testimony.”
Essentially, the defense wanted to establish why the protestors took the actions that they did.
Thousands of homes a week were losing access to water. Public health was being threatened. Parents without water risked having the state take custody of their children.
In short, the demonstrators felt morally compelled to engage in an act of civil disobedience to stop the shutoffs and raise public awareness of what was happening. They put themselves in a position to be arrested and insisted on taking the case to trial for the same reason.
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The city argued that allowing the jury to take all that into consideration was inappropriate. Judge Garrett disagreed and the trial was allowed to proceed. Closing arguments were made.
An attorney for the city told jurors that the defense was, in essence, throwing everything it could “against the wall” in an attempt to “see what would stick.” But none of that, she argued, was relevant.
There was only one simple and straightforward fact the jury needed to consider, the prosecution insisted: Did the defendants engage in an act of disorderly conduct?
For his part, Rev. Wylie-Kellermann made a point of reiterating who wasn’t on trial.
The city of Detroit wasn’t on trial, he noted. The Department of Water and Sewerage wasn’t on trial. The unelected emergency manager who ordered the mass shutoffs wasn’t on trial. The contractor being paid millions of dollars to shut off people’s water wasn’t on trial.
Speaking slowly and softly, appearing slightly disheveled in an inexpensive sports coat, he then delivered a line that summed up the essential point that propelled him and the other protestors to push the issue as far as they have:
“I’m on trial,” he said, placing a hand to his chest. “Marian Kramer is on trial. And I submit that, at this moment in history in Detroit, all of us are on trial.”
In other words, it wasn’t just a legal issue at stake. It was also a moral issue.
After Kramer’s attorney, John Royal, made his closing, the jury was poised to begin deliberations.
But they never got the chance.
Shortly before deliberations were about to begin, attorneys for the city informed the defense and Judge Garrett that Judge Hathaway, as the result of another ex parte hearing that no one else was aware of, had issued an order haulting proceedings.
The order was issued based on claims by attorneys for the city, including Hollowell, that a mistrial needed to be declared. The emergency stay was so that a judge above Garrett – Hathaway – could make that determination.
It was, defense attorneys now argue, an “unprecedented step” to halt a jury trial while in progress in a case involving a “minor city ordinance violation.”
Or, as defendant Kramer told reporters shortly after the deal went down, “The jury was seated, and was ready to go in and do their job, and it was snatched from up under them.”
In a court appearance on Friday, defense attorney Julie Hurwitz stated that, based on transcripts of the second ex parte hearing, attorneys for the city “blatantly misrepresented the truth” when they assured Judge Hathaway that the defense had been given notification of the proceedings.
They clearly had not been informed.
Judge Garrett was clearly upset with the city’s actions.
“A whole part of this trial has nip-and-tuck, hide-and-run,” she said after learning of the ex parte order halting proceedings on Nov. 30. “If something was going to be taken to the circuit Court, clearly the defense lawyers should have known.”
Attorney Julie Hurwitz, in an interview, pointed out that, between them, she and co-counsel John Royal have more than 70 years of legal experience, and that neither of them has “ever been confronted with judicial behavior or opposing counsel behavior that has been this blatantly in violation of fundamental court rules and due process procedures with the way case proceeds.”
Jumping the rails
On Friday, aspects of the case were heard in two different courts.
First was a motion brought by defense attorneys to have Hathaway remove himself from the case. It was argued that, by allowing the two ex parte hearings, Judge Hathaway had exhibited a favorable bias toward the city.
When Hathaway refused to recuse himself, action moved to the courtroom of Judge Colombo.
He agreed that the ex parte hearings should never have been allowed to occur, but that Hathaway had done nothing to justify being removed from the case.
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Declaring that the case “has gotten way off track,” Colombo looked at where things stand and determined: “This is a disaster.’
Members of the jury that was prevented from reaching a verdict after sitting through a trial are still waiting for word as two whether they will ever be called back. The five defendants whose bench trial was postponed still have not been able to have their day in court – and the city is now arguing that instead of having a judge decide their fate, they want to have those cases decided by a jury, two defendants at a time.
There are a whole host of issues that would have to be decided upon appeal for any of the trials to move forward.
All over a case involving seven peaceful protestors charged with the misdemeanor offense of disorderly conduct.
Colombo’s recommendation was a settlement conference – which he offered to preside over – with the goal of having the city drop all charges.
The mindboggling bottom line, though, was articulated by defense attorney Hurwitz in an interview:
“The fact that the city so threatened by these activists that its attorneys would go to such lengths, to the point where they would take actions that threaten their own professional reputations, is quite astounding.”