Judging the judge

Feb 19, 2003 at 12:00 am

The only photo displayed in Wayne County Circuit Court Judge Leonard Townsend’s courtroom is a black-and-white shot of Miles Davis. An illustration of the legendary jazz trumpeter also hangs in the judge’s chambers. Davis is his hero and jazz is his passion.

When Townsend was about 8, he took up piano, inspired by the sounds of the big bands that came to his hometown, Montgomery, Ala.

Sixty years later, he still plays. There’s an electric keyboard in the corner of his chambers. When Townsend isn’t on the bench, presiding over the hundreds of criminal cases that come before him each year, he spends a couple hours a day banging on the keys.

“Deep in my heart, I’m a musician,” says Townsend, who plays occasional gigs.

The songbook above the keys is open to “Nice and Easy” and “Never Let Me Go.”

These titles stand in stark contrast to Townsend the jurist. When dealing with violent criminals, he isn’t necessarily nice and easy, and he isn’t apt to let anyone go. Indeed, if Wayne County has anything approximating a hangin’ judge, it’s Townsend.

He regularly issues sentences that exceed guidelines established by state law. And when the very conservative Michigan Court of Appeals sends cases back to him for proper sentencing, Townsend is anything but contrite. “If the Court of Appeals thinks my sentence is incorrect, let them reverse me,” he said in 2001 as he imposed yet another sentence that exceeded the bounds.

Townsend is also renowned for biting commentary.

In 1997, he called a man who had been convicted of second-degree murder a scheisskopf, German for shithead.

“Would you prefer I call him a shithead?” asks Townsend, who is anything but apologetic for his demeanor.

A defense attorney who asked to remain nameless for fear of reprisal says he heard the judge call two African-American defendants, “Nothing but primates. … It was classic Leonard Townsend.”

“I don’t think I called them primates,” the judge protests. “I think I said, ‘Neanderthal.’ I just meant that they were stupid, undeveloped.”

When a jury convicted Eddie Joe Lloyd in 1984 of raping and murdering a 16-year-old, the judge told Lloyd that he should be “terminated by extreme constriction.”

The hangin’ judge wanted him hanged. Fortunately for Lloyd, Michigan has no death penalty.

Lloyd spent 17 years in prison before he was released last spring when DNA evidence cleared him of the killing.

Townsend is reticent about the case because he feels the media unfairly skewered him simply because he presided over a case in which a man was later deemed innocent.

“They castigated me and made me out to look like a bad guy,” says Townsend of the press. “I didn’t do anything. I did my job.”

And he is not sorry for suggesting that Lloyd deserved to die.

“He wasn’t exonerated,” Townsend says. “We found out that the DNA did not match him. I can’t say any more than that. We don’t know if there were two guys or four guys involved.”

Ron Bretz, an attorney and Cooley Law School professor, whose expertise is in DNA evidence, says that “theoretically” Townsend has a point. But he adds that “there is no evidence to prosecute [Lloyd] on that theory.”

“Judge Townsend sentences within his own discretion,” says Don Johnson, chief defender at the State Defender Office, the Wayne County-funded agency that represents about 5,000 indigent defendants annually. “He does not rely upon the guidelines. Most of the other judges rely heavily on the guidelines and very seldom deviate from them.”

Others also say Townsend is heavy-handed.

Kevin Simowski, chief of operations for the Wayne County Prosecutor’s Office, agrees that Townsend is one of the “toughest sentencers” among the 30 judges on the bench in the criminal division.

“He believes that violent criminals should get a lot of time,” says criminal defense attorney Steven Fishman. “How many people in society disagree with that?”

“Rush to judgment”

Callous comments notwithstanding, Townsend is generally very cordial inside and outside the courtroom.

But there are some cases, particularly those involving violent crimes, that set him off. Lloyd’s was one of them.

“It was a horrendous case,” says Townsend, who has been on the bench for 24 years.

Others evoke the same visceral reaction.

In the late 1980s, a Wayne State University student was murdered and his wallet was stolen. With the student’s ID, the killers went to his home, where they raped and murdered his wife and their 6-month-old child.

“I had parents in my courtroom who lost their only child and only grandchild,” says Townsend. “I told the killer that if we had the death penalty I wouldn’t hesitate to use it. It doesn’t mean I want capital punishment. It’s just about being upset.”

But can Townsend, who sees gruesome cases again and again, put aside his animus for “nasty people” — as he repeatedly referred to defendants during lengthy interviews with Metro Times — and judge a case on the facts alone?

“People are going to make you angry,” says Townsend. “How can you not get angry? Does it affect my objectivity? It doesn’t have any effect on me.”

Many criminal defense attorneys say that’s preposterous.

“He is predisposed to put people in prison. Maybe he has seen one too many cases,” says an attorney who asked to remain anonymous. “Leonard is not a big fan of defendants — period,” says another.

“He is one of the stiffer sentencers, particularly [of] violent offenders,” says prosecuting attorney Elizabeth Walker. “I think violent offenders should get a lot of time for the protection of the rest of us.”

Told that he is considered pro-prosecution, Townsend counters, “I’m not pro-prosecution, I’m pro-public.”

Defense attorney Norm Kohlstand had good results after a recent murder trial before Townsend.

“The jury came back with a not guilty verdict and Townsend congratulated them for it,” says Kohlstand, who adds that it’s nearly impossible for a judge to work “without complaints from one side or the other.”

“I don’t think he’s pro one side or the other,” says Simowski. “He is extremely fair. I think he’s a fantastic judge.”

Michigan Court of Appeals Judge Mark Cavanaugh would not comment on Townsend cases that have come before him on appeal. But he says that when he was a defense attorney he “enjoyed” practicing before Townsend.

“He is principled. People know that about him and what to expect when they go in his courtroom,” says Cavanaugh. “He is a man of his word.”

Perhaps it’s his affinity for jazz that pushes him toward improvisation when it comes time to mete out punishment.

Records indicate that Townsend has repeatedly defied the Michigan appellate court when it has instructed him to adhere to the sentencing guidelines or give a “substantial and compelling reason” for departing from them, a legal requirement for sentencing outside the guidelines. Townsend maintains he either gives reasons for departing from guidelines or changes sentences at the high court’s request. Legislators rewrote those guidelines in 1999 in an attempt to get tough on crime. Townsend is at times still tougher than the guidelines.

Townsend is also known for moving cases at a rapid pace.

“A five-day trial takes about a day in front of Townsend,” says criminal defense attorney James Howarth. “It’s not a criticism. I’m not saying he’s unfair to defendants. I’m saying he streamlines things. … It’s the quickest rush to judgment in the building.”

Moving cases quickly is a priority in one of the nation’s busiest courts. About 16,500 new cases wend through Wayne County Circuit each year. Townsend has presided over more trials than his fellow judges each of the past four years, according to court records. He claims he has held that record for the past 21 years.

How does he do it? For one, attorneys say that he is on the bench promptly at 9 a.m., unlike many of his colleagues. He also regularly offers to help other judges by hearing their cases when they can’t.

“I think that Judge Townsend is a tremendous asset to the bench and a tireless worker,” says Chief Judge Timothy Kenny.

But Townsend’s obsession with efficiency comes at a price, many attorneys complain. They say it’s often speed for speed’s sake, the equivalent of drive-through justice.

They say he cuts witnesses short, silences attorneys and circumvents the judicial process by pressuring attorneys to convince their clients to plead guilty. That’s not unique — judges regularly encourage defendants to accept plea bargains. About 75 percent of Wayne County’s cases are resolved that way annually.

But when pleas are not appropriate, judges should back off, says attorney David Roby, who had a drug-possession case before Townsend last year. He says the judge pressured him to get his client to plead before he heard the facts of the case. Roby believed his client, who did not have a criminal record, was innocent. He says that when he refused to tell his client to plead guilty, Townsend asked, “Does he know how much he will regret it if he doesn’t plea?”

Roby understood this to mean that his client would get a prison sentence if he did not accept a plea bargain.

Townsend says that probation may not be available to someone who doesn’t plead. He explains that there must be incentives to plead or too many cases will go to trial.

“There’s no judge in this building that will discourage a plea,” says Townsend.

He denies ever making a judgment about a case before hearing the facts.

Yet Roby’s client got off. The prosecutor dismissed the case when a key witness failed to show up in court.

Which invites a question: What happens to defendants who don’t have an attorney who will defy a judge’s wishes?

The Tucker case

The case of David Tucker is one in which Townsend’s rigidity came back to haunt the judge.

On June 30, 1990, Tucker, then 18, was working the evening shift at a McDonald’s on Detroit’s north side. According to Tucker, he asked his manager if he could use the bathroom and on his way there he found another manager, Anthony Henderson, on the lobby floor, unconscious and bleeding from the mouth. Henderson wouldn’t respond, and Tucker called for the manager, as well as 911, and helped get Henderson into the ambulance.

Henderson, who had been struck in the head, was in a coma for about a month; another month passed before he was able to talk.

In September 1990, during his initial meeting with police, Henderson accused Nathaniel Oden, an assistant manager at McDonald’s, and another employee, Robert Wiley, of assaulting him. Oden and Wiley were charged.

About 14 months after the assault, a preliminary hearing was held regarding the charges against Oden. (For reasons not apparent in the court record, charges against Wiley were dropped.) Tucker attended Oden’s hearing to testify that Oden was not involved in the assault; the charges against Oden were eventually dismissed. During the hearing, Henderson saw Tucker and accused him of being involved. Tucker was arrested.

At that same hearing, Henderson testified that he didn’t remember originally accusing Wiley. But Henderson turned around and again accused Wiley of the assault 10 days later at Tucker’s preliminary hearing. Despite the inconsistencies in Henderson’s testimony, Tucker was charged with assault with intent to murder and his trial was scheduled for March 1992.

About a month before the trial, Henderson’s workman’s compensation attorney wrote Tucker’s court-appointed attorney, Richard Nelson, stating, “Mr. Henderson advised me that he is unable to testify with specificity as to the identity of the individuals who assaulted and severely beat him. … Please be advised that Mr. Henderson is not in any way agreeing not to testify against David Tucker. He is simply setting forth his honest opinion that he cannot identify the individual who attacked him.”

Nelson didn’t think Henderson would show up for Tucker’s trial, and didn’t prepare, according to court records. But Henderson did show up to testify against Tucker. Henderson said that Tucker and two other men assaulted him and that he was in a coma for six months and could not speak for three months after he regained consciousness.

Nelson did not attempt to impeach Henderson’s credibility by pointing out discrepancies in his description of the length of his coma or speechlessness. Nelson did not raise the inconsistent statements Henderson made about Wiley’s involvement or that Henderson had admitted to his workman’s compensation attorney that he could not identify his attackers.

On the advice of his attorney, Tucker had waived his right to a jury trial; the case was heard solely by Judge Townsend. After a 45-minute bench trial, Townsend convicted Tucker of assault with intent to do great bodily harm.

The Michigan Department of Corrections recommended that Tucker, who was 20 at the time and had had no previous record, be sentenced to a halfway house for six months, followed by 18 months’ probation. Townsend ignored the recommendation. The judge also ignored the sentencing guidelines. The maximum penalty for the crime should have been two years. Townsend sentenced Tucker to six to 10 years in prison.

Tucker’s appeal

Attorney David Moran had never set foot in Judge Townsend’s courtroom before he took up David Tucker’s appeal.

“It was an experience,” says Moran, who was working for the State Appellate Defender’s Office at the time; he now teaches law at Wayne State University.

Moran says Townsend “talked while my witnesses were testifying,” and read magazines during their testimony as well.

“In the middle of their testimony, he would say, ‘I’ve heard enough of that, you can step down.’”

The judge didn’t allow the prosecutor to cross-examine Tucker’s witnesses, says Moran.

“He didn’t need to hear from the prosecution because he already had his mind made up,” says Moran.

The Michigan Court of Appeals remanded the case to Townsend about eight months after Tucker’s trial, so that Moran could ask the judge for a new trial. But to get a new trial, Moran had to prove that Tucker’s first attorney, Nelson, had made mistakes, and that the trial’s outcome would have been different if he hadn’t.

At the hearing, Moran called Tucker’s original attorney, Nelson, to the stand. Nelson admitted that he had received a letter from Henderson’s workman’s compensation attorney stating that Henderson could not identify his assailants. Townsend interrupted and said the letter was “purely hearsay.”

Nelson testified that he didn’t know that Henderson initially told the police that Wiley assaulted him and that Tucker had not. Nelson didn’t know this because, according to court records, he never bothered to obtain the police report or any other documents related to the case.

Townsend cut Nelson’s testimony short.

“All I’m saying, we tried this case,” the judge said. “I know that the man was in a coma for six months. I knew all of that at the trial. … And we’re doing nothing at all except engaging in academic irrelevancy.”

Townsend denied the motion for a new trial.

Moran was undeterred. About a month later, he obtained Henderson’s medical records, which proved that he in fact was in a coma for only one month and not six months as he had testified. The records also showed that Henderson did not sustain broken ribs, as he had claimed on the stand.

Moran again asked Townsend for a new trial since Tucker’s first attorney hadn’t bothered to obtain the medical records.

When Moran went before Townsend again, he was prepared.

“I knew what to expect,” says Moran. “I knew Townsend wouldn’t listen, so I prepared a summary of the medical records and handed it to the clerk.”

Moran then argued that the medical records showed that as a result of the closed-head injury, Henderson had “severe memory impairment.” But Townsend cut Moran short, saying that he had heard enough and that he would not review the medical records.

“I saw the trial. I heard the witnesses. I believed the complainant. Those records you brought in here today prove absolutely nothing at all. Nothing. Absolutely nothing. I saw the terrible injuries that this man sustained. … I don’t care how long he was in a coma, it doesn’t make any difference.”

Moran asked, “Your honor, don’t you think that impacts his memory?”

Townsend’s rejoinder was hardly on point: “Let the Court of Appeals handle that. The man is guilty. You can bring all the records in you want, that hasn’t changed one thing, except all it’s done to me is make me even more convinced than I was before. How in the world could there be a difference? We know a person [was] in a coma for one month, how would you like to be in a coma for two days?”

The Michigan Court of Appeals heard Tucker’s case and upheld the conviction. The Michigan Supreme Court declined to hear the appeal. Moran then went to U.S. District Court, which ruled in 1999 that Tucker was not competently represented at his first trial and that Townsend erred when he decided that Nelson’s errors were harmless.

“His basis for that conclusion, apparently, was that he was so influenced by the extent of Anthony Henderson’s injuries and by his statement on the stand … that he would not have considered any evidence that would have tended to impeach Mr. Henderson,” wrote the court.

Tucker’s conviction was overturned.

But by that time, Tucker had served five years in prison and was on parole for good behavior.

“I was naive. I didn’t know anything about the courts,” says Tucker, who was 20 when he entered prison. “I’d never been in trouble before. I’d never even been to the police station.”

Townsend, who says he has been overturned only a handful of times in his 24-year career, remembers the Tucker case. He says that he gave Tucker a tough sentence because of the violence involved. “There was substantial injury in that case and two years was cheapening it,” he says.

Waiver trials

A defendant has a choice to have a jury trial or waive that right and have their case heard by the judge. This is called a waiver trial or bench trial. Defendants rely on their attorneys to advise them what to do. When deciding what to do, attorneys say, they consider the facts of a case, the strength of their clients’ defense and which judge is presiding.

Attorney Nelson, who represented Tucker, says that Townsend advised him to have a waiver trial.

“He will tell you, ‘You don’t need a jury, waive the jury and everything will be all right,’” says Nelson, who considers Townsend a friend.

“But when you get to that point and if something comes up that makes you uncomfortable, he’ll let you have a jury.”

Nelson does not recall whether he asked Townsend for a jury trial when Henderson showed up the day of Tucker’s trial. He says that he did ask for the case to be adjourned, but says Townsend would not allow it. Court records indicate that Nelson did not ask for an adjournment.

Some attorneys say it is common knowledge that if a defendant agrees to a waiver trial, Townsend will likely convict them of a less-serious crime. That’s how it worked for attorney James Krogsrud.

“He is the sort of judge where people would take a case to a bench trial with the unstated, and sometimes stated, understanding that he would give a break,” says Krogsrud. “It was a kind of understanding that there would be a conviction, but on a lesser charge.”

Townsend says that there are times when a person is guilty of several charges and he convicts them of the lesser charge because there are mitigating circumstances involved in the case. But he says that he “isn’t doing it as a reward or punishment because they had a jury trial or waiver trial.”

Some attorneys refer to waiver trials as “long pleas.”

Townsend is hardly the only Wayne County judge who favors them. Some judges, like Townsend, are just more transparent, says Krogsrud.

He suspects that judges like waiver trials because they are less work and take far less time than jury trials.

Moving cases through the system is critical. Last year, accused felons who were not having their cases heard in a timely manner were being released from the overcrowded Wayne County Jail. Wayne County, which funds Wayne County Circuit Court, responded by halving the number of days that criminal judges have to conduct trials for defendants in custody. Judges did have 180 days to hear those trials. But according to an agreement between the court and county, 90 percent of those cases must go to trial within 90 days. The agreement also states that if the court does not meet this goal, it may reduce the court’s budget by $450,000. Chief Judge Timothy Kenny says the court is on track to meet this goal.

Townsend presides over far more bench trials than jury trials. Records show he had 74 bench trials last year and 39 jury trials; the previous year he had 87 and 35, respectively, according to data from Chief Judge Kenny. (The information Townsend provided showed an even greater disparity between bench and jury trials dating back to 1988.) The judge explains the numbers by noting that he volunteers to hear bench trials from other courtrooms when those judges are overbooked with trials. He also says that the high numbers indicate that lawyers trust his judgment.

“If lawyers didn’t think I was fair, they wouldn’t be here trying cases,” says Townsend.

Krogsrud says he opts for waiver trials when he thinks it will benefit a client. But he suspects that some lawyers are so anxious to get a break for their clients that some innocent people may have been convicted of crimes they did not commit.

Wells’ case

Harold Wells had a waiver trial before Townsend after he refused to accept a plea bargain.

Wells was arrested while walking home from a crack house on Detroit’s east side. Wells fit the description of a man who had reportedly fled on foot from a stolen car.

Wells, 21 at the time and with no prior record, denied the accusations. In fact, he continued to deny that the charges — possessing and concealing stolen property — even when his court-appointed attorney, Khalid H. Najar, tried to convince him to plead guilty.

“He wanted me to say I did it and I’ll get probation and I said, ‘No, no, I’ll have to live with that the rest of my life. I won’t say it, because I didn’t do it,’” recalls Wells. “I was up there [in the courtroom] crying because I had never been through anything like this before. I was very, very scared.”

When Wells would not plead, Najar advised him to waive his right to a jury trial and have a bench trial before Judge Townsend in 1992. The trial lasted about 20 minutes, says Wells. Townsend found Wells guilty and sentenced him to 18 months in prison.

Moran, who was working at the State Appellate Defender Office at the time, appealed Wells’ conviction. Moran had discovered from police reports that two juveniles who had been riding in the stolen car had been arrested. But Wells’ attorney, Najar, did not contact them, according to court records. Had he done so he would have learned that one of the juveniles told the police that Wells had not stolen the car. The juvenile even gave the officers the address of the man who had, says Moran.

Moran tracked down the juvenile, who signed a sworn statement saying that Wells had not stolen the car and that she had told the police that he hadn’t. Based on that, Moran went before Townsend to request a new trial based on Najar’s poor representation of Wells.

“Before I could get anything out, Townsend said, ‘There is no ineffective assistance of counsel,’” recalls Moran.

Moran was poised to ask that another judge hear the case, but Townsend didn’t allow him to speak again, and said, “I have read the affidavit and in the interest of justice, I’m going to order a new trial.”

It was a bizarre turn of events. It’s not clear why Townsend ordered a new trial if he thought Najar had competently represented Wells.

Moran suspects that Townsend was protecting Najar, but has no evidence of this. Najar says, according to his notes, “Judge Townsend … thought I did a good job representing Mr. Wells and denied the hearing and granted a new trial.”

Najar adds that he didn’t contact the juvenile witnesses because he expected them to plead the Fifth Amendment for fear of incriminating themselves. The prosecution didn’t want to go through another trial, he said, and the case was dismissed.

Townsend does not recall the case.

Although Wells was granted a new trial, he was furious that Moran was not given the chance to attack Najar’s competence.

“Harold [Wells] was looking forward to me ripping Mr. Najar apart on the stand,” says Moran.

For the new trial, Townsend appointed attorney Stanford Rubach to represent Wells. Townsend regularly appointed Rubach to cases.

Moran explained to Rubach that Wells was innocent and that all Rubach had to do was keep in touch with the juvenile. Moran says Rubach responded, “The man is guilty as hell.” That prompted Moran to contact the prosecutor, who agreed to drop the charges against Wells.

But Wells had served nearly the full 18 months in prison before the case was dismissed. He later sued the City of Detroit and several police officers involved in the case; the suit was settled for $20,000.

Chamber star

Townsend leans back in a leather chair behind the desk in his chambers. For a man who inspires so many divergent opinions, he is surprisingly easygoing, even charming.

He relates how he met his wife, LaBonnie. Ebony magazine had featured her in an article about her work as an electrical engineer and a friend had convinced Townsend to write her. She was living in Washington, D.C., at the time. Townsend, then a criminal defense attorney, sent her a very formal and brief letter congratulating her on the “nice article.” They corresponded for six months before they met in D.C. They married in 1964 and settled in Detroit, where the judge has lived since he was 11.

His dad died in the Navy in 1942; three years later his mother brought him and his younger sister north; his brother was born in Detroit.

After graduating from Northwestern High School, he earned a bachelor’s degree in history at Wayne State University, where he also went to law school.

He wanted to be a doctor, but decided against it.

“I was too stupid,” says the judge. “I realized that in high school when I took a biology class and couldn’t make it.”

His only child, Layla, is a doctor. Several photos of her and LaBonnie are displayed in his chambers.

Near the window, facing the Wayne County Jail, are old black-and-white photos of him and LaBonnie in Paris, Rome and Bavaria. In one photo, he clowns by placing his hand on the naked breast of a statue. The Townsends are avid travelers, visiting Europe at least once a year. Germany is the judge’s favorite country.

“I like their culture,” says Townsend, who speaks fluent German and is a fervent student of the nation’s past, as well as American and European history in general. He used to watch the History Channel religiously.

“Now they have all those commercials,” he says, sitting at his desk in his black robe.

No regrets

Townsend is asked whether he realizes that many defense attorneys believe he is biased. Does he believe his harsh statements and tough sentences contribute to their perception? Does he feel a duty to combat such perceptions so as not to erode public confidence in the judicial system?

“I don’t try to make a reputation,” says Townsend. “I try to do a job. I call it the way I see it. I’m here to do a job and that’s all I can do.”

He points to the many framed certificates on his chamber walls from schools that visited his court and local groups such as Mothers Against Drunk Driving and the metro Detroit chapter of Parents of Murdered Children Inc. The latter is dated 1999 and states, “In recognition of your concern and dedication to fairness of the justice system.”

Townsend says he gets more votes each time he runs for another six-year term, which he will do again for a final time next year. (Judges can’t run when they turn 70; Townsend will turn 70 after the 2004 election.)

“I’ve never had an attorney say he wants another judge,” says Townsend, who also points out that not a single grievance has been filed against him. (Grievances are not a matter of public record; the Judicial Tenure Commission says that it has never pursued a formal complaint against the judge.)

“I just don’t want people to … think that I’m bullying people and screaming at them,” he says. “I’m not Attila the Hun.”

“As far as being a tough sentencer, I do what the evidence requires,” he says. “I don’t favor anybody, I follow the facts of the case.”

Townsend adds, “All the cases I heard I wouldn’t change my mind. I would do the same thing.”

Check out the specifics of Townsend's rulings. Ann Mullen is a Metro Times staff writer. E-mail [email protected]