We've got it on video

In Wayne County Circuit Judge Leonard Townsend's courtroom, defense counsel was having a tough time at his client's bench trial.

He was cross-examining the complaining witness, a market clerk who claimed defendant stood at his side and lifted his shirt to reveal part of a gun while another guy pulled a gun, put it at his stomach and demanded cash.

The lack of an interpreter was apparently bogging things down. Defense counsel said the clerk was having difficulty answering his questions. Counsel wanted to know if the gun was held to the clerk's side, stomach or back but the clerk could not tell him. Judge Townsend acknowledged counsel's difficulty but said that where the gun was held "doesn't matter."

Counsel plowed on with his cross-examination. The clerk wasn't responding to questioning, said he was scared and suggested that everyone view the surveillance video, which presumably would clarify things.

Great idea.

Big problem: the defense hadn't seen the video yet. It apparently was in a format that needed a specialized gizmo or software to view it. The police gave counsel the tape but did not supply a way to view it.

A police officer who responded to the clerk's call for help after the incident testified that he was able to view portions of the video then and recognized defendant.

The proceedings continued the next day. Judge Townsend announced that a deputy had told him defendant wished to plead guilty. The judge accused defense counsel of not conveying the plea offer to his client. But when the judge spoke to defendant directly, he denied saying anything to the deputy.

Things starting going downhill from there.

Defense counsel moved to have Judge Townsend, who, you'll recall, was conducting a bench trial, recuse himself.

On the record, counsel noted that Judge Townsend denied an adjournment before trial even though counsel was unable to view the surveillance video. Counsel's effort to get the chief judge to review the matter had gone nowhere.

Still on the record, counsel said the judge's ex parte chat with the deputy was another ground for recusal, particularly so because counsel had been accused of not telling his client about a plea offer. Counsel demanded a mistrial. Judge Townsend was having none of it and denied the motion.

Counsel said he was going to the chief judge.

Judge Townsend told him he wasn't going anywhere.

"I am going to file a grievance against - no, no, no. You can't leave. You sit down. You're going to finish the trial. Sit down."

Counsel then said his client was "totally frightened. He wants to take the cop [sic]. He's going to take the offer."

Judge Townsend said he wouldn't accept the plea. Counsel said he couldn't finish the trial under the circumstances.

"[Y]ou're going to sit down and shut up. That's all you're going to do. Now put it [the video] on, and let me see it," Judge Townsend ordered.

The video screen warmed up and came to life.

Lo and behold.

Defendant and the other guy weren't standing close to the clerk. There was nothing that looked like defendant had lifted his shirt to show the clerk anything. What was being seen didn't match the clerk's testimony.

Defense counsel wanted to recall the clerk for more cross-examination.

The judge said the clerk had been excused. Defense counsel replied this was not so. The prosecutor agreed he could be recalled. Judge Townsend relented but the clerk was gone. Judge Townsend wouldn't delay the proceedings to get the clerk back on the witness stand.

Judge Townsend ultimately found defendant guilty of assault with intent to commit armed robbery, felony firearm and felon in possession of a firearm.

Wow.

The Court of Appeals was presented with a long list of things to review but only one of them mattered.

Defendant's due process rights had been pushed from a cliff.

Because the surveillance video wasn't available in a decipherable manner before trial, defense counsel was at a loss to advise his client about the feasibility of a plea, and was unable to challenge the clerk's version of the events, the appeals court said.

Judge Townsend should have granted an adjournment before trial so the defense could see the video. And, when the video was revealed at trial, the clerk should have been recalled and subjected to further cross-examination, the Court of Appeals ruled.

And so, the Court of Appeals said, defendant gets a new trial and the parties should think about getting the clerk an interpreter.

And, on remand, there will be someone else on the bench. Judge Leonard Townsend retired in 2005.

The case is People v. David. (Michigan Court of Appeals) (unpublished per curiam).