Flip-flop flap

Feb 4, 2009 at 12:00 am

Saying there's an "appearance of bias whether it exists or not," Wayne County Circuit Court Judge Michael Hathaway removed himself from a case in which two defendants were asking him to overturn convictions Hathaway himself handed down.

Bias or no, the judge made it clear he's had all he can stomach in a case he's "sick of."

"The post-conviction half of this case has been fraught with lies, probably by both sides," Hathaway said at a hearing Jan. 30. "In the end, I think it's a good idea for a fresh set of eyes to review this case. I think in the interest of justice, it should be done."

Wayne County Assistant Prosecutor Carolyn Breen made animated arguments that Hathaway should keep the case involving two Ecorse men convicted of attempted murder charges in 2001. From the outset, Marvin Reed and his nephew, DeShawn Reed, have claimed innocence (see "in the blink of an eye,"June 4, 2008).

It's a screwy case because the only witness — victim Shannon Gholston, who was left a quadriplegic as a result of a March 2000 shooting — keeps changing his story. At times he's claimed to have seen the Reeds shoot him; at other times, according to court records, he's said he doesn't know who fired the shots that left him paralyzed.

The flip-flops seem to be straining nerves all around. Breen's arguments were fast and furious.

"Try to calm down a little," Hathaway told her. Breen declined to elaborate on why she wanted Hathaway to stay on but said during the hearing that Michigan court rules specify when judges may remove themselves because they have a personal bias in the case. This case did not meet the threshold, she said. He disagreed.

"I am sick of the Reeds and I am sick of Shannon Gholston," Hathaway said. "I have lost all confidence in the conduct of both sides of this case. ... I can really understand why an objective observer from the defense side would feel legitimately insecure about my ability to handle the case."

Hathaway, in a 2001 bench trial, convicted the Reeds of assault with intent to commit murder after Gholston testified at their trial that he saw the Reeds shoot him. Hathaway cited that testimony as the basis for his verdict. No physical evidence tied them to the shooting, no gun was found with them and several witnesses corroborated their alibis.

Marvin Reed is currently in the Saginaw Correction Facility while DeShawn Reed is in the Mound Correctional Facility in Detroit. They're serving 20-year sentences.

In 2005, Gholston recanted his trial testimony on videotape to a private investigator the Reeds hired. But then, months later, he reversed course again, telling an investigator from the Wayne County Prosecutor's Office that his trial testimony was accurate.

Last December, according to court filings from the prosecutor, Gholston told the same investigator he did not see who shot him. He's said members of his family pressured him into identifying the Reeds, according to the Reeds' attorneys.

The Reeds are represented by David Moran and Bridget McCormack, University of Michigan Law School faculty members who opened the Innocence Clinic last year to deal with questionable convictions that do not have DNA evidence. The Reeds were one of their first cases, taken on last year.

Moran and McCormack also argue that the Reeds' verdict should be overturned on the basis of evidence that either wasn't available or wasn't properly considered at trial. Two of the witnesses identified Tyrone Allen as the man who shot Gholston as he was driving. Between the time of Hathaway's 2001 verdict and the sentencing several weeks later, then-attorneys for the Reeds, who were different from the trial lawyers, searched for Allen because he had not testified at trial.

They discovered Detroit police had shot and killed him between the time Gholston was shot in March 2000 and the Reeds' trial in 2001. Allen had two guns when he was killed, and the Reeds had them tested at the Michigan State Police lab.

But Hathaway declined to postpone sentencing until the ballistics report came back. Just 10 days after he sentenced the Reeds to decades in prison, the report showed one of the guns found with Allen was a match to the gun that shot Gholston.

The Reeds appealed that conviction, but their then-attorneys did not include that ballistics report. The Reeds now argue that was "ineffective assistance of counsel." They also consider Gholston's recantation "newly discovered evidence."

With Hathaway's recusal from the case, a blind draw reassigned it to Wayne County Circuit Judge Patricia Fresard. She'll hold an evidentiary hearing where, McCormack says, Gholston will be subpoenaed to testify.

News Hits is edited by Curt Guyette. Contact him at 313-202-8004 or [email protected]