January 29, 2014
Judge to decide whether to appoint new Bashara attorney next month
By K. Michelle Moran
DETROIT — By next month, murder suspect Robert “Bob” Bashara should know whether he’ll be getting a new defense attorney.
During a pretrial hearing Jan. 23, 3rd Circuit Court Judge Vonda Evans said she’d render her decision about whether to appoint a new attorney — or a new member to the current State Defender Office team of Mark Procida and Nancy Shell — on Feb. 18.
While Evans praised Bashara’s attorneys, calling lead attorney Procida “a great lawyer,” she expressed reservations about whether the office had sufficient resources to devote to this case. Don Johnson, chief defender with the State Defender Office, has taken issue with Evans’ criticism, saying that he put two of his best attorneys on the case and reduced their other workload so they could focus on Bashara, but acknowledged that his firm does represent many other clients and has a heavy caseload.
“I’m concerned about the resources the defender’s office has and what they’re willing to commit (to this case),” Evans said. “There is a lot of material, and I mean a lot.”
Lisa Lindsey, one of the Wayne County prosecutors on the Bashara case, said there are about 300 witness statements included in the materials — although these include many tips that didn’t pan out — and a total of more than 10,000 pages of evidence. But Lindsey was worried that appointing yet another attorney would delay the case, set to start March 3. Lindsey felt it would take a new attorney or legal team six to nine months to get up to speed on the case, to which Evans disagreed. Bashara, a former Grosse Pointe Park businessman, is facing multiple felony charges, including first-degree murder, in connection with the January 2012 strangulation death of his wife, Jane Bashara, 56, at their home.
Although Bashara said he was “disappointed over the fact that” Rene Cooper, another member of the State Defender Office, was no longer part of his legal team, he said he was “happy with” all of his attorneys.
Evans said “it is a funding issue” that has her concerned about the State Defender Office’s ability to represent Bashara.
“It’s no reflection on the defender’s office,” she said. “They do a wonderful job.”
Evans said she had been “given authorization from this court” to extend to new, possibly private, defense attorneys the same rate given to attorneys in federal cases — $125 an hour for two attorneys on the case. The court could commit in excess of $200,000, she said. Evans said this would be a public defender at public expense. Procida said his office is talking to benefactors about possibly getting a third-year law student on board to catalogue materials in the case and aid the defense team.
“We’re making sure that he gets not just an adequate defense but a good defense,” Procida said.
Evans said she’ll decide whether or not to appoint new counsel during the next pretrial hearing Feb. 18.
“This is not a rush,” she said. “We want to do a thorough job.”
The court also addressed a separate matter — documents reportedly seized Oct. 29, 2013, from the Grosse Pointe Park home office of Bashara’s personal attorney, Dean Valente. Henry Scharg, Valente’s attorney, said he was seeking the return of some of the files for his client. Although prosecutors didn’t seize any computers, Scharg said they did take three boxes of documents, which he and Valente later sorted: Box I contained documents and writings they considered privileged according to attorney-client rules, or work product, including some items written by Bashara; Box II consisted of attorney files and client files deemed relevant to Bashara properties that Valente was managing or conducting legal services for; and Box III contained items they felt were not relevant.
As a professional courtesy, Scharg said attorneys are typically presented with subpoenas and given an opportunity to produce the documents without a search warrant. In this instance, however, he said prosecutors and investigators came armed with the subpoena and search warrant simultaneously.
Scharg said prosecutors, investigators and about 10-20 police officers arrived unannounced at Valente’s house to serve him with a subpoena for documents that they felt were related to the case.
Mark Hindelang, another attorney with the Wayne County Prosecutor’s Office, said Valente “refused the subpoena for whatever reason,” causing them to immediately serve him with the search warrant. Scharg said Valente wanted to consult an attorney first.
“Investigators had probable cause, based on phone calls (involving Bashara) received from jail and other reasons” to serve the search warrant so quickly, Hindelang said.
Evans countered that prosecutors had several months to review phone calls regarding these documents and get a search warrant, with some calls being made as early as March and May 2013. In a May 20, 2013, call between Bashara and a longtime friend and business associate, Bashara allegedly said he gave Valente a lot of his writings.
Lindsey said it took investigators quite a while to go through all of the conversations, and they were trying to determine the exact location of the documents they wanted before they issued a search warrant.
Evans questioned their rush to deliver the search warrant along with the subpoena, arguing, “It doesn’t appear … there was any concern of immediate destruction” of the files, but prosecutors alleged otherwise.
“The writings could very easily have been destroyed. … Once we alerted (Valente) that we were looking for these writings, there’s no guarantee that he wouldn’t” destroy or transfer them, Lindsey said.
Scharg said there were only “two files with a limited connection” to the murder investigation. One involved an alleged loan given to Bashara’s former mistress, and the other involved an eviction proceeding against a former Bashara rental tenant who is now a witness in the case, Scharg said. The loan document involves something that happened before charges were brought against Bashara, and the eviction was for “nonpayment of rent and damage of property,” Scharg said.
Scharg said Valente was Bashara’s longtime friend and personal lawyer, and he was tasked with managing a number of properties owned by Bashara — as well as other matters — while Bashara faced criminal investigation. He said Valente’s parents knew Bashara’s parents, and both men were involved in a Rotary club in Grosse Pointe.
With the nature of the documents in question, the agreement between prosecutors and Scharg was that a master judge would be appointed by Judge Michael Hathaway to review the documents and determine if they should be classified as privileged information or work product. Retired Judge Jeanne Stempien was selected for this task.
Scharg said both sides agreed Stempien wouldn’t need to go through Box II, which was the box he was seeking return of for his client. He said the understanding was that prosecutors could go through that box’s contents and make copies of any relevant materials, but now he said prosecutors are telling them that they need to make copies of what they want and the originals won’t be returned by prosecutors until after the case.
Having been bypassed by prosecutors for the subpoena and search warrant, Evans was clearly unhappy about their actions — motion-maker Hindelang’s actions in particular — and said that, as the “presiding judge” in this case, “anything else will come through me.”
She added, “The court was very taken aback by what occurred,” referring to the prosecutors’ decision to approach another judge.
“If there are any more subpoenas going out or search warrants, I must be notified,” Evans told prosecutors. “I am responsible for this case. … The days of going around this court to decide who’s going to sign a search warrant is over.”
Lindsey said they didn’t seek the search warrant in an effort to forum shop, since Evans hadn’t ruled against them in the first place.
“I have never disrespected this court in any shape, way or fashion,” she told the judge.
Evans said she had the “utmost respect” for Lindsey and said that this particular matter “is not your motion — this is Mr. Hindelang’s motion.”
Hindelang said they initially approached 3rd Circuit Court Judge Timothy Kenny because “from the beginning of the investigation, it has been the practice of investigators to go before the same judge” for search warrants. Prosecutors said this is because the case is complicated, and Kenny is already familiar with its particular nuances. Hindelang said Kenny recused himself, so they approached his alternate, Judge Michael Hathaway.
Evans countered that what they did was “not procedurally correct.”
With what Evans said are 178 witnesses in the case, “There’s enough that we’ve got to deal with that we should not have to deal with any ancillary issues in this matter.”
Evans said she might need to have her own evidentiary hearing over these issues. She demanded that prosecutors deliver Stempien’s report to Evans no later than Jan. 29.
“The issue that we are all concerned with is fairness of the trial,” Evans said.
Evans is expected to reach her own determination of what is or isn’t privileged material or work product in the next couple of weeks.
The judge also noted that the second anniversary of Jane Bashara’s death was Jan. 24.
“I want to thank you very much for recognizing the second anniversary of my wife’s passing,” Bashara told the judge, appearing to choke up a bit in court. “Don’t forget — she was a wonderful gal.”
Jane Bashara, 56, was murdered Jan. 24, 2012. Her body was found the next morning inside her SUV, which had been abandoned in an alley on Detroit’s east side. Although Bashara has always insisted he had nothing to do with her death, prosecutors have argued that Bashara hired a handyman to murder his wife so he could start a new life with his mistress, with whom he was home-shopping in the weeks before Jane Bashara was killed.
C & G Staff Writer