Wednesday, May 26, 2010

Judge David Groner's sentencing statement to Kwame Kilpatrick May 25, 2010

Let it be clear that this entire proceeding was precipitated by the actions of you, Mr. Kilpatrick. You were convicted after pleading guilty to two counts of obstruction of justice and no contest to one count of assaulting and obstructing a police officer, all because you lied under oath about your relationship with your then-chief of staff, Christine Beatty.

That lie at the whistleblower lawsuit was part of a broader attempt to cover up your misdeeds while serving as mayor and which led to the wrongful termination of two police officers who tried to perform their sworn duties.

That lawsuit ultimately cost the City of Detroit $8.4 million when you perpetrated a fraud on the city and its citizens by deceptively inducing the Detroit City Council to accept a settlement offer in the case because of your wrongdoings.

Your inexcusable behavior continued when you assaulted a police officer who was trying to serve a subpoena. Third, you, Mr. Kilpatrick, are the one who initially raised the issue of your inability to pay restitution as prescribed by this court, which led to the restitution hearing, the probation violation hearing and ultimately to today’s sentencing hearing.

To use legal parlance, Mr. Kilpatrick, you opened the door to this issue when you contested the restitution payment schedule. However, during the course of the restitution hearing, when this court sought to get a complete and accurate picture of your financial status, it was met at every turn by your continued attempt to thwart the fact-finding function of this court. To quote from the May 8, 2009, order, quote, “The main goal of the order is to ensure that the defendant complies with the terms and conditions of his probation and makes reasonable payments towards restitution. In the interest of full disclosure in determining defendant’s personal obligations and his ability to pay restitution, the court finds that disclosure of defendant’s assets and those of his spouse, is warranted. Therefore the court will reaffirm its order that defendant make those records available to the probation department.” End quote.

You represented to this court that you were the sole bread-winner and responsible for paying the household expenses and, after covering those expenses, your net monthly income was only $6. You then challenged this court’s authority to examine the finances of your family, including your spouse. You attempted to utilize semantics and exploit technical loopholes in the court orders in order to conceal the fact that you and your wife had received a quote-unquote loan, and I use the term loosely, in the amount of $240,000 and a separate gift of $50,000 from various business leaders here in Detroit. As this court explained, under the law, this court is entitled to examine all aspects of a defendant’s finances in order to ascertain the ability to pay restitution, including any and all assets or obligations of a defendant, a spouse and any dependents.

To this day, you’ve continued to assert that this court violated the law by requiring to disclose those funds and that in any event they were intended to benefit your family and not for restitution. Had the court known about those funds, it would have immediately ordered their application towards the repayment of your restitution. Or, at the least, the court would have ordered that you pay 100% of your after-tax income towards the payment of your restitution. In fact, those funds have still never been accounted for. The broader context of this issue is, of course, that your family living expenses including living in a million-dollar home, driving brand-new Escalades, shopping at high-end designer stores and purchasing elective surgery for your wife. You have made it perfectly clear that now it is more important for you to pacify your wife rather than comply with my court orders. The court doesn’t know what your plans were regarding the restitution, however the court does know that when it determined a reasonable repayment schedule, you balked, feigned poverty and misrepresented your financial status. This contemptible behavior was in clear disregard in both the letter and the spirit of the court’s orders, which sought transparency to comprehensively examine your financial status and determine your ability to pay your restitution obligation to the City of Detroit.

Fourth, under the terms of your probation, you were ordered to comply with various conditions, which you failed to do. If you will recall, at the time of your original sentence, you were forewarned about the consequences of violating the terms of your probation. This court explicitly stated, quote, “You need to consult with your lawyers. They will tell you do not violate my probation, because I take my mandate as judge very seriously. And I will not hesitate to impose the penalty of prison if you violate my probation or any order of this court.” End quote.

In reviewing the pre-sentence investigation report submitted by the probation department, this court does not agree with the sentence recommendation of the Michigan Department of Corrections. Sir, you were trained as a lawyer. You served in the state Legislature, where you were entrusted to make the law. And you were the chief executive of Detroit, a major U.S. city, charged with enforcing and carrying out the law. In this case, the court strongly believes that to allow a defendant situated as you are to blatantly disregard the orders of this court, a defendant who was a former public official who violated his oath of office in an obstruction of justice case, who desecrates the basic tenets of our system of justice and seriously undermines the credibility and legitimacy of our legal system, does not fit within the sentence guideline range.

Mr. Kilpatrick, you have asked not to be treated any differently than any other defendant who appears before this court. The problem is, you are different. You were a public servant, and because of your status as a former high-ranking public official, we expected you to set an example. Yet, despite this, you continued to engage in obfuscation and obstruction. You continued to be defiant. And in your letter to this court, you have failed -- actually it was a letter that was sent to the probation department, which is attached -- you have failed to sincerely accept responsibility for your actions. Frankly, your continued attempt to cast yourself as the victim, your lack of forthrightness, your lack of contriteness and your lack of humility only serve to affirm that you have not learned your lesson. Clearly, rehabilitation has failed. You have not adjusted well under probation. Probation is no longer an option. This court must now sentence you in a manner that assures that justice will be served. The terms of your earlier probation no longer apply. That ship has sailed. That plea deal was negotiated by your attorneys and the prosecutor. I only approved what I thought was a lenient sentence because everyone, not only your lawyers and the prosecutors, but also the City of Detroit, urged this court to accept the deal so the city could move on. The city wants to move on. You want to move on. So today we will move on.

This court is satisfied that there are substantial and compelling reasons for a departure that are objective and verifiable. And those reasons are hereby articulated:

• In the present case, defendant Kilpatrick violated the terms of his probation by failing to pay $79,011 by Feb. 19, 2010, which included defendant specifically failing to provide complete accounting of his family finances, failing to surrender his tax refunds, failing to disclose gifts and benefits, improperly accepting dollars from political funds. Furthermore, one of the most troubling aspects of defendant’s conduct occurred during the restitution hearing. You raised your right hand and swore to tell the truth. But many answers you gave were not truthful. When asked about the nature of your spouse’s employment, you replied that you did not know if she worked. When asked about your rent payment, you feigned ignorance. In the court’s opinion, this lack of candor, while under oath, dangerously approached the very crime for which you were already under sentence for. Moreover, the point of the restitution hearing was to determine defendant’s ability to pay the restitution and to ensure that the citizens of Detroit were compensated – at least to a small degree, for the loss they suffered at the hands of you. During the hearing it was abundantly clear that over the course of your probation, you certainly had the wherewithal to substantially pay down the balance of your restitution, which you failed to do and which you clearly misrepresented to this court.

• Again, this court finds that there are substantial and compelling reasons to depart from the sentencing guidelines. Violation of probation, wherein you failed to comply with the sentence agreement to turn over your tax return. You took gifts without disclosure and deposited into marital accounts and never paid 30% to restitution as ordered. And you accepted funds improperly from the Kilpatrick Civic Fund. You lied in your affidavit to this court that you only had $6 per month after expenses to pay restitution when your bank records indicate you had hundreds of thousands of dollars going through the joint bank account. You violated this court’s order to disclose all your bank records, my signed order. But you redacted and provided incomplete records omitting accounts altogether and the court would never have known of your attempts to mislead the court had the people not issued subpoenas. Your testimony in this courtroom amounted to perjury when you stated, “I don’t know if my wife works. I don’t know the amount of rent. I don’t know who pays the bills.” Most substantially, most compelling, is that you lied to this court. You continued to lie, after pleading guilty to lying in court! Obviously, there has been no rehabilitation. You have not changed. So to continue you on probation is not an option. You must understand your crime and consequences now.

This court is satisfied that the initial 120 days incarceration did nothing to rehabilitate you, Mr. Kilpatrick. Because you have violated probation, you lied in the affidavit, your documents were not fully disclosed, you lied in this courtroom. This court is satisfied that incarceration must now correlate to reflect the above substantial compelling reasons to deviate.

Therefore you will serve a maximum of five years in the Michigan Department of Corrections. Further, you will receive credit for the restitution you have paid and the balance of the restitution, $860,000, shall be paid as a condition of parole. What that means is that your obligation … to pay back the city does not go away with this incarceration.

You will receive 120 days credit on the minimum sentence of one and a half years in the Michigan Department of Corrections.

At this time, Mr. Kilpatrick, I’m going to advise you that you have 42 days in which to file an application for leave to appeal this matter. If you wish to appeal and you can’t afford a lawyer, a lawyer will be appointed to represent you. Are the forms available for the defendant to sign?

Mr. Schwartz … could you assist your client, because otherwise I’ll have him sign it in the back. It’s just an appellate rights form…

Sergeant, could you secure the defendant please and take him in the back. Put your hands behind your back, sir. This concludes the matter.

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