Macomb County prosecutor accused of retaliation

The HIV-as-terrorism case is not the only potentially explosive legal proceeding going on for Macomb County Prosecutor Eric Smith. In another case, the tables are being turned on Smith as he finds himself accused of violating the law by engaging in retaliation against a defendant who publicly blew the whistle on alleged police and prosecutorial misconduct. And the Macomb Daily reports that a judge has determined that there is enough evidence to move forward with that case.

Judge Donald Miller of Macomb County Circuit Court agreed Prosecutor Eric Smith’s office may have retaliated and been vindictive against Shawn Johnson, 43, of Mount Clemens, who is charged with four counts of felony resisting and obstructing a police officer. Miller scheduled an evidentiary hearing for Dec. 15 in which four assistant prosecuting attorneys are expected to testify.

Miller says in his ruling that although there is no evidence of “actual vindictiveness,” he found “there is a ‘reasonable likelihood of vindictiveness,’” quoting a U.S. Supreme Court case.

Johnson originally was charged with two misdemeanors, disorderly person and attempted resisting and obstructing police, related to his arrest on Feb. 7, 2008, in Mount Clemens after a police officer said he saw him urinating in a parking lot. The charges were dismissed, refiled, and then dismissed again. They were increased to the four felony counts after Johnson’s attorneys released an approximately five-minute video on Youtube and made comments to The Macomb Daily and at least one other publication…

“Defendant’s statements were extremely critical of the police and the prosecution,” Miller says in his opinion to conduct the hearing. “There is no indication that additional evidence was discovered prior to the authorization of additional charges. Moreover, the prosecution has failed to assert any reason for bringing the heightened charges in the responses to this motion, and instead relies solely on prosecutorial discretion as the justification for the decision.”

It should be noted that this is just a preliminary ruling, not a verdict in the case. The ultimate outcome will depend on what turns up at the evidentiary hearing next week. But it is extraordinarily rare for complaints of this sort against a prosecutor to even reach this stage.

Even if Smith is found guilty of retaliation, he likely faces little real legal risk. If Judge Miller ultimately rules that Smith did retaliate against this defendant, it will help the defendant’s case and he may well get those heightened charges dismissed. But it is virtually impossible for Smith to face any legal consequences for that retaliation even if the court rules that he did so.

Prosecutors currently have total immunity from civil suits based on actions they take in office. The U.S. Supreme Court is currently considering a case challenging absolute prosecutorial immunity, but even if the court rules in that case that immunity is not absolute it is unlikely that it would affect Smith’s immunity in this case because of the very narrow basis of that legal challenge.