Prosecutors say a federal judge should deny former Detroit Mayor Kwame Kilpatrick’s latest bid to overturn his racketeering conviction, saying Kilpatrick’s challenge is an “extraordinary remedy” and his conviction should stand.
In a filing submitted Tuesday in U.S. District Court in Detroit, prosecutors argue that Kilpatrick waited too long to raise his claims about jury instructions and ineffective counsel, which they believe should have been part of his direct appeal.
“Kwame Kilpatrick assumes that he can relitigate his case as if everything were happening again now for the first time,” according to the government’s filing. “Almost anything Kilpatrick failed to raise on direct appeal is procedurally barred, as is anything he litigated and lost. Those principles foreclose most of Kilpatrick’s claims. The rest fall short on the merits.”
Kilpatrick filed a petition in July to vacate a 28-year-prison sentence, claiming he never committed extortion, bribery or racketeering and that his conduct did not constitute an official act.
He also made some of the same arguments, including that the judge erred by denying his request for a new taxpayer-funded defense lawyer. Kilpatrick’s previous appeal was based, in part, on the claim his lawyer, James C. Thomas, had a conflict of interest.
The response filed by prosecutors dismissed the accounts.
They called Kilpatrick’s claims “deficient” and said they were all settled during trial and sentencing. “And all of them fail on the merits for the same reasons as they did before,” the government said in the filing.
In addressing one of Kilpatrick’s challenges over his Sixth Amendment right to counsel, prosecutors said Kilpatrick “cannot demonstrate ineffective assistance based on what he claims is additional evidence of “gifting. ... A small mountain of trial evidence demonstrated that Kilpatrick’s cash came from bribes, kickbacks, fraud, and extortion — not ‘gifting.’”
Prosecutors also don’t buy Kilpatrick’s claim that he tried to physically harm Thomas after his request for a substitute counsel was denied.
Kilpatrick has said the fight included him chasing his lawyer around a conference room table.
“And the only new allegation in Kilpatrick’s ... petition is that he tried to ‘physically harm’ Thomas during a ‘heated quarrel’ after his request for substitute counsel was denied,” the government’s brief said. “That seems unlikely to be true: if it really happened, why did Kilpatrick wait five years to mention it?”
The alleged argument happened after Kilpatrick tried to dump his taxpayer-funded legal team and delay the corruption trial in summer 2012.
Kilpatrick failed to persuade Edmunds that his relationship with Thomas was broken.
The Aug. 14, 2012, hearing was filled with one-liners, insults and an odd analogy to a Thanksgiving turkey while trying to convince the judge that Thomas was the wrong lawyer for him.
“When my mother cuts the Thanksgiving turkey, she doesn’t open the drawer, close her eyes and pick a knife,” Kilpatrick told Edmunds. “You got to get a turkey knife for a turkey.”
In attempting to disassemble Kilpatrick’s latest challenge to his conviction, prosecutors said that Kilpatrick “cannot establish ineffective assistance by claiming that Thomas should have personally testified at trial about another attorney’s review of the Civic Fund’s finances. Thomas did not conduct that review; the other attorney did. So Thomas would not have had personal knowledge, and could not have testified, about what she did.
“And if Kilpatrick had really wanted to present evidence that he paid back money to the Civic Fund because of that other attorney’s review—and not because the Civic Fund received a grand jury subpoena ... he had a simple solution: testify in his own defense. But he decided not to do so.”
He had “thoroughly examined that option” with his attorney and decided not to testify, the government’s said. “ ... Having opted not to tell his side of the story, Kilpatrick cannot now blame his attorney for it.”
In the end, the government asserts, “attorney error did not get Kilpatrick convicted; the evidence did.”
Kilpatrick, who has 20 years remaining on his landmark public corruption sentence, filed his July petition from a federal prison in Oklahoma.
At the time, Kilpatrick was destitute with only 96 cents in his prison bank account, the only money remaining from a small stipend from family and friends that helps pay for phone calls and personal hygiene items.