Carmack suit claims prosecutor's appointment is invalid

Christine Ferretti
The Detroit News
Robert Carmack

Detroit  — A city businessman is asking a state court to declare a felony case against him invalid on grounds that the prosecutor overseeing it was unlawfully appointed.

A complaint filed Thursday on behalf of Robert Carmack takes aim at former Attorney General Bill Schuette and the Wayne County Prosecutor's Office over a felony case filed against the auto shop owner last month.

Carmack was arraigned Dec. 20 on charges of false pretenses with intent to defraud $100,000 or more, and three counts of uttering and publishing a document affecting real property tied to a decade-old land deal. 

The complaint, filed in the Michigan Court of Claim, notes that Wayne County submitted a petition to Schuette in April, citing a conflict of interest and asking for a special prosecutor to evaluate a warrant request against Carmack from Detroit police. 

In its reasoning, the prosecutor's office pointed to ongoing civil litigation involving Carmack that named Wayne County Treasurer Eric Sabree in similar real estate purchases tied to the property that was the subject of the warrant request.

Sabree, the prosecutor said, has responsibility over the budgetary funding of the prosecutor's office, which Worthy's office claimed created the conflict. 

Schuette approved the petition from Worthy's office in July, citing "good cause." Genesee County was later assigned. 

 In the filing Thursday, Carmack's attorney Andrew Paterson argues the appointment "should be declared void" because there "was no legitimate basis" for Wayne County to be disqualified.

The filing notes the alleged conflict cited doesn't comply with state statute and therefore "doesn't meet the standard of law." 

Contrary to the prosecutor's assertion, the filing argues, Sabree does not have any financial responsibility over the budgetary funding of the prosecutor's office.

The authority rather lies with the county commission and executive, the complaint contends. Furthermore, Sabree had been dropped from Carmack's pending federal case in August, prior to the special prosecutor assignment.

"After reviewing the Wayne County Prosecutor's petition requesting the appointment of a special prosecutor, it is apparent that the Wayne County Prosecutor's office did not have a legitimate basis to disqualify itself from this case because a conflict of interest did not exist," Paterson said in a statement. 

"Michigan law clearly requires a prosecuting attorney to prove that a conflict of interest and prejudice exist in order for a request for disqualification to be granted. Both of these requirements were clearly absent in this case."

Paterson added: "Certainly, if the Court declares that the special prosecutor was appointed in violation of Michigan law, there is a strong possibility that the pending charges brought by the special prosecutor against Robert Carmack cannot be sustained."

The attorney general's office did not have an immediate comment in response to the Thursday complaint.

Maria Miller, a spokeswoman for Wayne County Prosecutor Kym Worthy, said Thursday that the office will not comment on any pending litigation. But Miller did address why the county petitioned for the special prosecutor assignment.

Miller said the county received a warrant request involving Carmack from the Detroit Police Department in March. As a result, the office petitioned the attorney general's office in April for the reassignment "because of a conflict of interest." 

"It is our consistent practice to disqualify whenever we have a conflict of interest based on a financial relationship with another Wayne County office," Miller said. "Since the Treasurer’s Office is the ultimate funding source for the Wayne County Prosecutor’s Office, it created a conflict of interest."

Genesee County Prosecutor David Leyton was ultimately assigned as special prosecutor in the Carmack case. He authorized a warrant on the felony counts in December. 

The charges stem from the March 2, 2016, sale of property that's also the subject of a civil lawsuit filed by Detroit in June alleging that a city-owned site on Melville was "fraudulently sold" by the auto shop owner for $1 million. 

Leyton called Paterson's challenge to the appointment "highly unusual."

"I'm not aware of any such challenge having ever been filed in all my years of being a prosecutor," he said.