By Clarence Walker
Assistant District Attorney Karen Plants was head of the narcotics unit of the Wayne County District Attorney Office in Detroit Michigan when the Inkster Police Department scored a major narcotic bust in 2005. Acting on a reliable tip, officers collected 47 kilos of cocaine, the largest haul the Inkster authorities ever had in its history.
This was the epitome of the American way to carry out “the war on drugs”: A swift take down of Alexander Aceval, Ricardo “Richard” Pena, Chad Povish and Brian Hill along with the seizure of the cocaine worth millions of dollars.
While the community celebrated the bust, the subsequent investigation blew the lid off an egregious case of corruption in Michigan’s Jurisprudence. The drug bust included lies orchestrated by the prosecutor, the judge, the informant and the police. The string of charges ranged from “obstruction of justice” to perjury.
Circuit Judge Mary Waterstone, in charge of the trials against Aceval and Pena, was complicit in the perjury scheme. She told a Michigan Attorney General investigator that prosecutor Plants expressed concern for the safety of Chad Povish who set up the men to be arrested.
Both Plants and Judge Waterstone felt the informant’s life was in danger and would be killed if he was exposed as the person who helped police retrieve 47 kilos of cocaine from the Mexican drug cartels. However, no testimony from a witness or police came forward to substantiate the judge’s and prosecutor’s theory.
Judge Waterstone said in subsequent interviews that she was motivated by concerns to protect Povish’s safety, while guarding against any legal missteps that could let two big time drug dealers walk free.
But what happened to the Constitution governing the right of the accused?
Plants supposedly told Waterstone that she discussed the officers’ and the informant’s perjury with Tim Baughman, Chief of the DA office Appellate division, and that Baughman had told Plants to inform the judge but without the presence of the defense team
Judge Waterstone recalled that Plants mentioned Baughman’s suggestion of sealing the record.
Attorney Moffitt insists the perjury was already established when the officers reported seeing Aceval and Pena place the narcotics into Povish’s Oldsmobile . Yet, Povish’s testimony indicated that he and Bryan Hill had loaded the drugs into the vehicle.
“Immediately upon the arrests of Alexander Aceval and Ricardo Pena, the perjury scheme went into motion,” Michigan attorney David L. Moffitt stated at the time.
Moffitt represented defendant Alexander Aceval on appeal.
“There’s no circumstance in which perjury should knowingly be allowed to be put before a jury. And if it is discovered afterward, it needs to be corrected and that’s true even in a case such as this one,” Wayne State law professor Peter Henning told Curt Guyette of Metro Times News.
Prosecutor Plants later confessed her role in the scheme, “I informed the court when the witnesses lied and I did so in a manner to protect the identity of the confidential informant.” “In retrospect, I would have handled the case differently. I realize that allowing false statements is wrong.”
The scheme orchestrated in this legal drama shook the city of Detroit when Moffitt and James Feinburg, Aceval’s attorneys, discovered secret meetings between prosecutor Karen Plants and Judge Mary Waterstone.
During these meetings, Judge Waterstone and Prosecutor Plants agreed with Sergeant Scott
Rechtzigel, Detective Robert McArthur, and police informant Chad Povish to hide evidence from the attorneys that implicated Povish as the snitch who set the bust up
Povish later told investigators that Plants coached him to testify falsely that he wasn’t an informant but only an innocent party to the offense.
Povish said the message from then-prosecutor Plants was clear: “I didn’t know either of the officers.” But this wasn’t true. Povish was a paid informant for the Inkster police. He also personally knew the officers whom he helped to make the biggest drug bust of their careers.
Officers contradicted Povish’s story when they finally confessed that he tipped them off about the cocaine in order for Povish to make 10 percent of the assets seized from Aceval, whose home, club and other property were worth hundreds of thousands of dollars. Povish had given up other drug dealers to the officers in the past.
Michigan Attorney General granted Povish immunity for the lies he told in Aceval’s and Pena’s trial in exchange for truthful testimony against Plants, Waterstone and the two officers.
Prosecutor Plants’s mishandling of the high-profile dope case led to criminal charges in March 2009, against Plants, Waterstone, and both officers—Scott Rechtzigel and Robert McArthur.
Judge Waterstone was charged with misconduct in office, a felony which carried five years in prison. Plants and the officers were charged with obstruction of justice and perjury, offenses punishable by life in prison.
When news broke of the case, lawyers and concerned citizens were stunned.
If the charges were proven, Plants go from holding a prestigious position as an anti-drug chief for the DA office to being a criminal ringleader in the biggest case of her drug fighting career.
“Prosecutor Karen Plants intentionally conspired with Judge Mary Waterstone and the officers to hide the truth about Chad Povish being the informant”, Moffitt recently told this journalist during an interview.
“Plants and Judge Waterstone was in on the fabrication from the beginning, yet Plants told the court she had not spoken to Povish before Aceval and Pena’s preliminary examination. “Without Povish perjury at the preliminary hearing Mr. Aceval could not have been bound over for trial,” Moffitt stated.
Povish and his friend Brian Hill were never charged in the cocaine case.
Perjury in the Aceval-Pena case is another classic example of prosecutors and law enforcement officers engaging in shady tactics to win at all costs. When DA Karen Plants allowed lies to dictate the case against Aceval and Pena her actions amounted to prosecutorial misconduct.
Rampant prosecutorial misconduct across the nation has led Senator Lisa Murkowski(R-Alaska) to propose a Congressional bill called “The Fairness in Disclosure of Evidence Act.” The Disclosure of Evidence Act is a bipartisan proposal requiring federal and state prosecutors to turn over to defendants all evidence favorable to their case. Further, the proposed bill would implement appropriate penalties when prosecutors fail to do so.
A Trail of Perjury: Chad Povish Meets a Wealthy Club Owner
Alexander Aceval owned a popular club in Farmington Hills outside Detroit–called “J-Dub.” Aceval’s club generated much business. He made lots of money. Chad Povish was a professional carpet installer whom many say he once wanted to become a cop. Sometimes Povish acted like one. But instead he became a paid “snitch” for the Inkster Police Department under narcotic detective Robert McArthur.
Povish met Aceval through a friend named Bryan Hill. Hill worked at Aceval’s club as a bartender. During conversations between Povish and Hill, Hill confided to Povish that Aceval sold more than liquor. This startling news piqued Povish’s interest.
On March 11, 2005, according to press reports and court records, clubowner Aceval offered Povish $10,000,00 to drive a load of cocaine to a designated location when the drugs arrived from a Mexican drug cartel with Texas connections.
First, he contacted Detective Robert McArthur and laid out the plans. McArthur called Sergeant Scott Rechtziel to assist. A perfect trap was set for the suspected dealers, and the officers were anxious to make the biggest drug bust of their careers.
Once Aceval’s Texas connection delivered 47 cocaine kilos–Povish and Hill stashed the contraband into duffel bags and placed them into Hill’s 1986 Oldsmobile located outside Aceval’s club. Aceval allegedly directed Povish and Hill to transport the drugs to a certain location. Aceval followed in a separate vehicle. Pena was arrested near the club with cocaine in his pocket.
But a fix was in. Soon as the vehicles hit the highway the police swooped in and stopped Povish and Aceval’s vehicle. Everyone was arrested. But Povish and Hill were released. Aceval and Pena were charged with possession with intent to distribute over 1000 grams of cocaine including conspiracy to deliver over 1000 grams of cocaine.
Courtroom Drama: Here Comes the Judge
What led to Michigan’s worst criminal justice scandal involving the prosecution of Alexander Aceval and Richard Pena was, as stated earlier, a conspiracy between the judge, a prosecutor and two police officers. They knew it was important to hide the disturbing fact that Chad Povish was the informant who set up the defendants to be arrested. Povish was motivated to have Aceval busted in exchange for compensation and to receive a percentage of Aceval’s assets.
Judge Waterstone and Prosecutor Plants would later say they hid the information about Povish informant status from the defense to protect him from being killed.
“It was always known that there was an informant,” says Aceval’s appellate Attorney David Moffitt. Aceval’s trial attorney, James Feinberg, had also suspected Povish or Hill as the informant.
How could Feinberg not feel suspicious about Povish’s and Hill’s testimony? Remember his client Aceval was there at the scene when police made the bust.
Before trial, attorney Feinberg requested the court to identify the confidential informant. During evidentiary hearing on June 17,2005, Judge Mary Waterstone conducted an interview with Detective McArthur. McArthur informed the judge that he and Sergeant Rechtizigel knew that Povish was the confidential informant, that Povish had been paid $100 for his services, and that “he was going to get ten percent of whatever we get.” The conference meeting was privately sealed as part of the record.
Judge Waterstone denied Feinberg’s motion to identify the informant although she knew the officers had already told her that Chad Povish was the informant.
The conspiracy got worse.
As a court reporter took down notes during a meeting between prosecutor Plants and Judge Waterstone, Plants looked worried as she explained how defense attorneys for Aceval and Pena were trying to obtain phone company records for Povish’s and Hill’s cell phones. Plants mentioned she heard from a jailhouse informant that Aceval and Pena had targeted Povish or Hill as the guys who gave them up. Waterstone listened intently to Plants.
Instead of letting the defense attorneys know about the meeting as the law required, Judge Watersone decided to sabotage the case by issuing an order to the phone carriers informing them not to release the cell records.
Subsequently, attorney Feinberg fired off another motion to have Waterstone suppress other specific evidence. At a hearing on September 6th 2005, Sgt. Rechitzel lied when he testified, in response to defense counsel’s questioning, that he “never had any contact with Povish before the arrest of Aceval and Pena on March 11th 2005.” Prosecutor Plants knew the officer was lying but she never objected.
The perjury scheme persisted.
On September 8th 2005, in another private conference without defense attorneys present, the prosecutor admitted to Waterstone she knew Sgt. Rechitzel lied about denying involvement with Povish and Hill—prior to the date he arrested Aceval and Pena. “I let the perjury happen because I thought an objection would reveal the identity of the informant.”
Judge Waterstone agreed with Plants. “Given the circumstances, it was appropriate for the officer to lie.”
An investigation later showed a record of this meeting was sealed.
In his appeal, attorney Moffitt asserted in court records that a transcript showed that Plants asked pointed questions of Povish and both officers, questions which elicited false responses, which Plants never corrected.
The showdown went to trial on September 12th 2005, Chad Povish repeated the lie he never met officers Rechtizgel or McArthur before they stopped his cocaine loaded vehicle. He further stated that neither officer offered him a deal of any kind. He also testified he never knew what the duffel bags contained.
In closing arguments to jurors, Plants characterized Chad Povish and Bryan Hill as “dummies stupid enough to be mules.” Moffitt said, “the prosecutor’s argument misled jurors about Povish true role in actually helping police to arrest Aceval and Pena.”
Aceval’s trial ended in a hung jury while Pena was convicted on drug charges. Meanwhile the attorneys for both men filed appeals on their behalf. Pena’s conviction was overturned. Pena’s reversal exposed what the attorneys already knew: a cover-up.
Prior to Aceval’s new trial, Moffitt and his co-counsel encountered another shocker[PB3] : despite Judge Waterstone’s and prosecutor Plants’s admission that they allowed perjured testimony by the cops and the informant in the first trials, the new judge would allow DA Paul Bernier to call Waterstone, Plants, informant Chad Povish and the cops as witnesses in the new trial against the defendants to explain why false testimony wound up in the original case.
“It was incredible,” Moffitt told me.
Once the court records were unsealed, Moffitt filed a motion to quash indictment against Aceval to prevent a retrial.
A new appointed judge, Vera Jones, denied Moffitt’s motion to dismiss. Moffitt appealed to Michigan Supreme Court. In December, 2010, the Supreme Court rejected the appeal filed by Moffitt alleging the judge, prosecutor and the two others lied under oath during Aceval’s trial.
The Appellate Court rejected the case without much explanation and also the court rejected prosecutorial misconduct in [PB4] spite of the perjury presented at both trials. One judge, Maura Corrigan, refused to issue an opinion because she planned to testify as a character witness on behalf of her friend, Judge Waterstone.
Moffitt responded in a Detroit news article, “The high court’s failure to summon a majority to review whether judicial and prosecutorial misconduct can be a basis to convict may relegate Michigan’s justice system to one worthy of a third world dictatorship.”
A Lawyer’s Quest For Justice
Attorney David Moffitt is not a quitter when it comes to fighting for the underdogs caught up in the criminal justice system. He has been a passionate advocate to see that the public officials in the prosecution of Alexander Aceval and Richard Pena are punished not only in state but also in federal court.
“This case should be looked at closely by the feds,” Mofitt wrote in an email. Although many years have passed, Moffitt brings up the million dollar question: How much did the upper-echelons in the DA’s office know about Plants’ intent to allow the perjury happen in Aceval and Pena’s trial?
Moffitt cannot shake off the thought of a memorable statement that Chief Prosecutor Kym Worthy had made about her duty to prosecute former Detroit Kwame Kilpatrick for perjury.
“Witnesses must give truthful testimony and we demand that they do.”
According to Moffitt, “Ms. Worthy does not hold herself or her employees to the same standards.”
“There’s absolute proof that Worthy’s Assistant DA Karen Plants confessed to allowing lies in my client’s case and Worthy didn’t have the moral turpitude to fire Plants for actually committing a crime in a court of law. She allowed her to retire.”
When Aceval and Pena returned to court for retrials in 2006, Pena opted for a plea of 5-15 years in prison while Aceval took 10-15 years. Both cases were appealed on the basis that prosecutorial misconduct sullied the entire legal process.
Charges Against Judge Dropped
After a series of appeals and pretrial challenges, on April 11th 2012, Michigan Appellate Court dismissed the last pending felony charge against the now retired Judge Mary Waterstone.
This latest ruling was a victory for Waterstone because last year, Wayne County presiding judge Timothy Kenny, dismissed three other counts against Watersto[PB5] ne. She had retired after the Aceval-Pena scandal.
Judge Kenny ruled that the “meeting between Waterstone and Plants were not a neglect of duty as alleged in the indictment but instead their actions were deliberate acts taken out of concern for informant Povish’s safety.”
Yet, on an opposite note, Kenny had ruled that “Waterstone must face trial for allowing the perjury to go to the jury because she had a duty to correct the lies.”
Michigan Attorney General John Selleck hinted that the last ruling in favor of Waterstone would be appealed. “We are reviewing the opinion and will make a decision on which action to take at a later time.”
Waterstone was elated. “I’m going to get a good night’s sleep for the first time in three years,” she told a Detroit news reporter.
Former DA Plants wasn’t so lucky. She pled guilty to official misconduct and was ordered to serve six months in jail, earlier this year. Plant’s law license was permanently revoked. Officer Robert McArthur pled guilty to a misdemeanor charge of filing a false report and he, too, was ordered to serve 90 days in jail. Sergeant Rechtizgel pled guilty to a similar charge but received no jail time.
Journalist Clarence Walker can be reached at: firstname.lastname@example.org
For more exclusive information on Attorney Moffitt’s battle to free Alexander Aceval and Richard Pena, go to www.davidmofitt.com