Former prosecutor, judge urge Nessel to charge Livingston County judge with another count

Beth LeBlanc
The Detroit News
Livingston County Judge Theresa Brennan  during her judicial misconduct proceeding in the courtroom of Judge William Giovan, on Monday at 16th District Court in Livonia.

A former Livingston County prosecutor and retired judge have urged Attorney General Dana Nessel to add an obstruction of justice charge on top of multiple felonies already leveled against Livingston County Judge Theresa Brennan. 

Brennan currently faces three other felony counts, including perjury and tampering with evidence. 

Attorney Thomas Kizer and former Judge Daniel Burress asked Nessel in a letter dated Wednesday, to authorize an additional obstruction charge by Friday to meet the six-year statute of limitations applicable to the crime.

Nessel has no plans to pursue the obstruction charge at this time, not because of the time limits, but because of a lack of evidence, said the attorney general’s spokeswoman Kelly Rossman McKinney.

“We don’t have sufficient information to pursue those charges the way (Kizer) would like us to,” Rossman McKinney said. “We’re not about wasting taxpayer money.”

Brennan was charged in December by Attorney General Bill Schuette’s office with perjury, destroying evidence and misconduct in office related to the Livingston County scandal that has unfolded over months.

Nessel was sworn in as attorney general Tuesday, assuming the case a few days before the expiration of the statute of limitations. Rossman McKinney said the office has not received Kizer’s letter.

Brennan's attorney, Larry Willey, on Friday declined to comment, as he's still reviewing a "massive amount of material" related to his client's case. Brennan's caseload was removed in June and she's not currently presiding over cases. 

In a copy of the letter obtained by The Detroit News, Kizer urged Nessel to consider the  obstruction charge based on Brennan's refusal to recuse herself as judge from a double homicide case, even after Kizer had notified affected parties on Jan. 4, 2013, that Brennan was in a relationship with the lead detective on the case. 

The obstruction charge should have been authorized long before Nessel came into office, Kizer said Friday, noting that Schuette’s charges in December came “22 damn months from the time I made the first complaints.”

“In fairness to (Nessel), she comes into office Jan. 1, she’s got a lot of things on her plate,” Kizer said. “While I’m disappointed, I’m not offended. I am offended by those that sat on this.”

The letter from Kizer and Burress comes roughly two weeks after a Judicial Tenure Commission concluded Brennan violated provisions of the Michigan Code of Judicial Conduct and the Michigan Campaign Finance Act.

The commission report noted Brennan failed to disqualify herself from a double-homicide trial, though she was involved in a relationship with the lead detective, and failed to disqualify herself from cases in which her friend represented one of the parties.

In the lead up to the double murder trial, Brennan logged at least 1,500 calls "of a social nature" with Michigan State Police Detective Sean Furlong, the lead investigator in the case.

The judge also attempted to destroy evidence, lied under oath, directed employees to perform her personal business and campaign activity during work hours, and persistently abused attorneys, witnesses, litigants and employees, the commission's investigator found.

Following the commission’s report, Livingston County Prosecuting Attorney William Valliencourt announced he would meet with double-homicide defendant Jerome Kowalski’s attorney to vacate the convictions and grant a new trial.

Allegations against Brennan surfaced in depositions related to her 2017 divorce case after reports she had failed to disclose a personal relationship she had with Furlong.

Brennan, who served as president of the Michigan District Judges Association earlier this year, also was the subject of impeachment articles filed by Livingston-area legislators in late September.

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