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Novi judge denies conflict over ties to testing firms

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2014-01-09 11:49:14

Novi District Judge Brian MacKenzie is known for his get-tough brand of justice, ordering those who appear before him to undergo months of daily drug and alcohol testing and use interlock devices on their cars.

His court offers the thousands of defendants who pass through annually a list of suggested local testing facilities and interlock vendors, which are privately owned businesses.

Among the recommended facilities: ones his family members have or had financial ties to, a Free Press review of records found.

The judge’s wife is the paid executive director of the Michigan Association of Drug Court Professionals, a nonprofit organization that receives thousands of dollars annually from the drug- and alcohol-testing companies. MacKenzie is that group’s president, an unpaid position.

And his son worked for 16 months at Jail Alternative

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for Michigan Services, known as JAMS, the largest drug- and alcohol-testing company in metro Detroit.

MacKenzie denies any conflict of interest, saying he receives no financial benefit from any facility and has been ordering testing for years. He said he forces people into treatment programs to help them and keep the community safe.

“I do it because it’s the right thing to do,” he said. “And if I do it well, it works.”

But legal experts say judges should steer clear of financial ties to outside businesses.

Keith Swisher, a law professor and associate dean at Arizona Summit Law School in Phoenix who teaches judicial ethics, said the arrangements raise concerns about MacKenzie’s ability to be impartial in sentencing.

“It’s problematic when a spouse is getting paid, even indirectly, by these providers,” said Swisher, who also runs the national Judicial Ethics Forum. “And then you have a direct connection with the son. Judges are prohibited from being influenced by improper external factors. And judges are held to a higher standard. The tightness of the familial connections could establish the appearance of impropriety.”

Judicial canons — rules governing the position — allow judges to serve on boards “devoted to the improvement of the law” but prohibit them from actively soliciting contributions. The canons do not address the involvement of family members.

Scrutiny over MacKenzie’s business ties comes as he is under fire by Oakland County Prosecutor Jessica Cooper, who has accused him in a lawsuit of improperly dismissing domestic violence cases, falsifying court records and sealing case files to keep them from public scrutiny. The lawsuit is unrelated to the nonprofit agency and his rulings on drug and alcohol cases.

Cooper has asked Oakland County Circuit Judge Colleen O’Brien to intervene and is requesting that her office be allowed to review MacKenzie’s record for the past 10 years.

MacKenzie denies any wrongdoing and said the lawsuit contains “significant factual inaccuracies.” O’Brien is expected to issue an opinion within weeks.

Treatment as option

MacKenzie was appointed to the bench in 1988. In the decade that followed, courts nationwide began to consider substance abuse treatment as an alternative to jail or prison.

MacKenzie became one of the state’s most vocal supporters and one of the first to implement a sobriety court.

Most courts now use drug testing and interlocks, but MacKenzie is well-known for his extensive bond and probation requirements — beyond what many judges order, although no one tracks those requirements among judges in Michigan.

“He’s very committed and passionate, and he believes in what he’s doing,” said veteran defense attorney Jack Holmes, who regularly defends cases before MacKenzie. “What he will tell you is that the nature of the offense is somewhat irrelevant. It’s the addiction that brings the person to the court.”

In 2002, MacKenzie became active in the Michigan Association of Drug Court Professionals — a nonprofit that promotes best practices for courts that handle drug and alcohol cases. Its 25-member board, which elected MacKenzie the group’s president in 2007, is made up of judges, substance abuse experts and attorneys.

Eight months after he became president, his wife was hired as executive director. Karen MacKenzie works 20 hours a week from her home, receiving about $40,000 annually, according to the group’s tax filings. She also gets bonuses, including $4,000 earlier this year after reporting she had worked 833 hours of overtime.

The nonprofit’s $250,000 annual budget comes from contributions and an annual conference it holds in Lansing. Among those donating are interlock companies. The growing and lucrative industry costs the average driver convicted of drunken driving between $1,100 and $1,400 a year. The devices are installed in cars and require drivers to blow into a tube that measures blood-alcohol levels and keeps the car from starting if certain levels register.

MacKenzie’s court distributes a list of five acceptable interlock companies, which are regulated by the state. But the Free Press found that just three companies — which all give money to the association — qualify under MacKenzie’s rule that such devices have cameras.

Smart Start of Michigan and American Interlock each gave the association $10,000 last year. Michigan Interlock gave $3,000. Representatives from the two other providers — one doesn’t contribute to the association — say they are excluded because of the camera issue, even though they are certified by the state and are used in dozens of other courts.

“We’ve been locked out of that court for years,” said Thomas Levoska of Alcolock of Michigan in Wixom, one of the five vendors on MacKenzie’s list. “There isn’t another court around with that requirement.”

MacKenzie said he favors having cameras because the court’s probation department recommends them, and they provide greater control. He also said acceptable vendors are chosen by all three Novi district judges after discussions with the probation department.

JAMS testing

When MacKenzie orders mandatory daily alcohol and drug testing — often for months at a time at a cost of about $9 a day — many defendants end up at JAMS (Jail Alternative for Michigan Services).

JAMS has deep ties to the drug court association and has been a sponsor of its events. Former Southfield District Judge Stephen Cooper, whose wife, Caroline Cooper, is a co-owner of JAMS, served on the board of the drug court association.

MacKenzie’s son David was employed there as a case manager from June 2006 to September 2007, according to an online résumé. Judge MacKenzie said he didn’t help his son get the job and that it had no influence on him.

“I got no direct benefit from that, and nothing that I do is related to that,” MacKenzie said.

MacKenzie acknowledged he has ordered “JAMS testing” from the bench but said he used the term in a generic sense of drug and alcohol testing and doesn’t require any particular facility.

“I don’t think it’s ethical to send people to a specific place,” he said.

MacKenzie also orders people to attend weekend sessions of Accepting Responsibility is Mandatory (ARM), billed as “team building” sessions. Participants pay $300 to stay in cabins at the Howell Nature Center and attend counseling sessions. ARM, owned by a West Bloomfield businessman, also contributes to the association.

MacKenzie said he often has used companies that don’t sponsor the drug court group and has stopped using ones that did because they didn’t meet the court’s standards, including a drug- and alcohol-testing facility he considered unreliable.

Months of testing

Tax records show the Michigan Association of Drug Court Professionals raised about $192,000 in 2012 from groups and individuals.

In addition to Karen MacKenzie’s salary, Judge MacKenzie acknowledged the group reimburses travel expenses for both when they attend sobriety court conferences and pays for their annual retreats in Petoskey.

MacKenzie said he had no input into his wife’s hiring. Karen MacKenzie, who holds a master’s degree in health administration, saw the job posting and told him she was applying, he said.

“When she applied, I withdrew from the process,” MacKenzie said. “I wasn’t in the room, and anytime there is a discussion about her, I leave the room.”

Karen MacKenzie, one of three candidates, was selected by a three-member committee that included former Southfield Judge Cooper and Paul Ferrell, a co-owner of JAMS. Retired Genesee County Judge Robert Ransom also was on the committee.

Karen MacKenzie was selected because of her education and her experience working for the Oakland County Circuit Court, Judge Susan Dobrich, the association’s treasurer, said in an e-mail to the Free Press.

Judge MacKenzie also insists his wife doesn’t actively solicit donations from companies he orders defendants to use, although her job description includes fund-raising.

Defendants who have appeared in MacKenzie’s courtroom say he ordered them to undergo long stretches of alcohol and drug testing, therapy and mandatory Alcoholics Anonymous meetings — despite committing minor misdemeanors.

In general, judges sentence low-level, nonviolent offenders to court costs and fines and sometimes limited probation.

Kevin Meharry of Taylor appeared in MacKenzie’s courtroom after being cited in Novi for urinating in public behind a party bus in May 2010 while celebrating a friend’s 21st birthday. Meharry, then 21, agreed to a Breathalyzer and registered 0.26% — more than three times the level at which a person can be convicted of drunken driving in Michigan.

“But I wasn’t driving,” Meharry said. “That was the point of having the bus.”

MacKenzie sentenced Meharry to months of drug and alcohol testing, mandatory daily AA meetings and intensive therapy. Meharry also had to install an in-house alcohol-testing unit and meet with a probation officer for two years.

Meharry said he failed an alcohol test after taking cough syrup for a cold, and MacKenzie sent him to the Oakland County Jail. After his father bailed him out, Meharry had to submit to daily drug testing.

“It was crazy the things he was doing to me,” said Meharry, who works for a firm that supplies parts for the auto industry. “People were like they just couldn’t believe it. By the time I got done, it cost me $8,000.”

MacKenzie said the sentence was appropriate, noting Meharry’s high blood-alcohol level and a ticket he received years earlier for possessing alcohol as a minor.

“I was trying to get him to stop drinking,” he said.

'You lose faith'

In another case, MacKenzie ordered a law school graduate with no criminal conviction to submit to six months of drug and alcohol testing, intensive therapy and mandatory AA meetings.

Paul Ewald and a friend were out the evening of Feb. 8 in Ewald’s car, and Ewald said his friend agreed to be the designated driver.

Ewald said his friend lost control on an icy road after they left the bar, and the car slammed into an abutment, smashing the passenger door. After the car stopped running, Ewald said, his friend got out of the driver’s seat and into the backseat. Ewald, unable to get out of the smashed passenger’s side door, moved to the driver’s seat as police arrived, he said.

Ewald was arrested for drunken driving after he registered 0.19%. But officers also noted footprints in the snow that appeared to show someone had left the driver’s seat.

Ewald’s attorney, Dana Nessel, subpoenaed Ewald’s friend to testify and said she also planned to note the footprints, text messages between them showing the friend agreed to drive and airbag sensors in Ewald’s car that registered the weight of the individual in the passenger seat.

On April 29, the day of trial, Nessel said she laid out the case for MacKenzie in his chambers. Attorney Darin Weinberg — representing Ewald’s friend — said his client planned to plead his Fifth Amendment rights to avoid self-incrimination if he was called to the stand. Nessel said Weinberg told the group his client had admitted to being the driver.

Nessel said MacKenzie refused to dismiss the case, insisting her client was an alcoholic who needed treatment and hinting she would not fare well if she took it to trial.

Worried a conviction would hamper her client’s law career, Nessel said they agreed to intensive drug and alcohol testing, AA meetings and substance abuse therapy. MacKenzie dropped the case in August after Ewald completed therapy.

MacKenzie disputes Nessel’s account.

“Absent a trial, I would not and could not come to any conclusion as to Mr. Ewald’s innocence or guilt. Here there was no agreement of the guilt or innocence of the defendant and no trial,” MacKenzie said. “Instead the disposition was one that the prosecutor and defense counsel agreed to, which I accepted.”

Ewald said the experience devastated him both financially and emotionally.

“You lose faith in the system,” said Ewald, who has since moved to Florida. “It makes you afraid of police officers and judges. It entirely derailed me. He just ripped me to shreds. I’d been planning on taking the bar, but I couldn’t afford it because I used up all of my savings keeping myself out of MacKenzie’s court.”

View Original Article: freep.com


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