Dismissed Michigan sexual conduct case ruffles Florida custody battle
A custody battle in Florida is heating up after allegations made against an assistant attorney general in Michigan resulted in the dismissal of an Oakland County criminal case against one of the parents.
An Alachua County circuit judge presiding over the Florida custody battle likely won’t consider evidence compiled in the dismissed sexual assault case against Sean MacMaster unless Michigan Attorney General Dana Nessel testifies in his courtroom how and why the case against MacMaster had any merit prior to dismissal.
“They had a bad prosecutor,” said Judge James Nilon in a Jan. 22 hearing. “And yet you’re asking me to look at the investigation and that prosecution as if it had integrity …and it’s fraught with red flags that it did not have integrity.”
Nessel dismissed the case without prejudice last year, meaning the charges could later be reinstated. Her office declined to comment further on Nilon's remarks.
Nilon, chief judge for the Alachua County Circuit Court, said it would be inappropriate for him to comment on the case when reached this week by The Detroit News.
MacMaster, a former Detroit police officer, and his 71-year-old stepfather were charged last year in Oakland County with the sexual assault of a relative, who is a young minor.
But the charges against MacMaster and his father were dismissed months later after Nessel announced the assistant attorney general assigned to the case, Brian Kolodziej, had been involved with a victim in a separate criminal sexual conduct case in Mount Pleasant.
A defense lawyer involved in the Mount Pleasant case has alleged internal investigations have shown Kolodziej also interviewed witnesses without a police officer present and submitted erroneous investigative reports to the defense counsel and the court.
Nessel also fired an investigator assigned to the Oakland County case, Lauren Schipani, for reportedly misrepresenting her previous experience with child sexual assault cases while testifying in MacMaster's bond hearing.
Michigan State Police Trooper David Busacca is the subject of an internal investigation related to alleged misconduct in the MacMaster case, the department said Friday.
At the time of the Oakland County dismissal, Nessel issued a statement that the dismissal “does not reflect the truthfulness of the victims in these cases but rather the consequence of a prosecutor who failed in his sacred duty to properly administer justice in our legal system.”
Frustration over Michigan dismissal
Johanna MacMaster, Sean MacMaster’s ex-wife who moved to Oxford in 2013, would like to see the criminal case taken up again to protect the victim in the case said lawyer Marcy Hahn, who was retained by Johanna MacMaster to explore ways to stop the Florida reunification after Nessel dropped the charges.
"We understand that the attorney general in Michigan had to take the action she took based on the prosecutorial misconduct," Hahn said. "But that doesn’t mean the underlying crime didn’t happen, and the charges were not dismissed on their merits.
"We would like to see a special prosecutor appointed to allow the jury to decide the merits," she said.
The lack of finality in the criminal case makes it difficult for both sides to move forward in the Florida courtroom, said Brian Rodgers, Johanna MacMaster's family law attorney in Florida.
"We didn’t want them to do our job for us," Rodgers said of Michigan law enforcement. "They have a separate role. But it's frustrating for us because our view was that the evidence was pretty strong.”
If Kolodziej changed or manipulated interview reports in a separate Mount Pleasant case, as has been alleged, there is little guarantee he didn't do the same in the Oakland County criminal case, MacMaster's defense lawyer, Alona Sharon, said.
"A lot of evidence is suspect, and we never really had the chance to get to the bottom of it" before the case was dismissed, Sharon said.
Sean MacMaster's family law attorney in Florida did not return calls for comment.
Charges in Oakland County
Johanna MacMaster first accused Sean MacMaster of sexually assaulting a relative in 2016, but the Oakland County Sheriff’s Office, Child Protective Services and the Oakland County Prosecutor’s Office declined to bring charges, according to Oakland County records and transcripts from the Florida courtroom.
"There was nothing there," Oakland County Undersheriff Mike McCabe said Friday. "It was obvious to us that the ex-wife was out to get the ex-husband by whatever means necessary.”
When Johanna MacMaster later approached the Michigan State Police and then Center Line Police Department about the case, it was referred to the Department of Attorney General, where Kolodziej took the lead.
Sean MacMaster has said the accusations are untrue and were a ploy to win the legal fight over parenting time in Florida, where the couple divorced in 2012.
McCabe said he was shocked when the charges were authorized last year.
"Nobody from the state police or the Attorney General’s Office ever contacted us to talk about this case. Nobody," McCabe said. "That is so unheard of in the law enforcement profession. I was blown away."
Rodgers argued that Johanna and Sean MacMaster had had an amicable divorce prior to the 2016 sexual abuse allegations. And a more thorough investigation by Michigan State Police brought further evidence to support the allegation.
"The idea that these sexual abuse allegations, which after a thorough investigation appear credible, were driven by a desire to secure an advantage in a family law case simply makes no sense," Rodgers said.
The couple began to fight over shared parenting time, according to court records, in 2016, when Johanna alleged a 4-year-old relative had reported being sexually assaulted by Sean MacMaster.
Nilon ruled in February 2017 that the relative's claims were not reliable and ordered the MacMaster's daughter be evaluated to prepare for shared parenting time with Sean MacMaster, according to court records. In January 2019, Sean and Johanna MacMaster entered a mediation agreement that gave them shared parenting time.
Two months later, Johanna MacMaster learned the Michiga
n State Police had reopened the investigation into Sean MacMaster, and the Florida court suspended time-sharing while the case pended.
When the allegations against Kolodziej became public, the Oakland County Sheriff's Office reached out to the Attorney General's Office to share its concerns about the case against MacMaster and eventually met with Nessel, McCabe said.
In his Sept. 13 letter to Nessel, McCabe told the attorney general that his department had been subpoenaed by the defense for MacMaster's preliminary exam because they had exculpatory evidence from the 2016 investigation, according to a copy obtained through a public records request.
"When we laid out what we had, that’s when she apologized to us in that room four times," McCabe said.
Nessel initially denied a request to charge the MacMaster case, but allowed staff to pursue a search warrant, her spokeswoman Kelly Rossman-McKinney said.
“The evidence gathered as a result included significant amounts of forensic evidence, which ultimately compelled AG Nessel to authorize charges," Rossman-McKinney said.
“While AG Nessel apologized to the Oakland County undersheriff for how the case was handled by AAG Kolodziej, she never apologized for charging Mr. MacMaster and Mr. Orr.”
Trouble in Florida
After the charges were dismissed in December, Sean MacMaster's parenting time should have been automatically restored. But Johanna MacMaster objected based on evidence uncovered during the most recent Michigan investigation and prosecution.
Hahn and lawyer Yasmine Poles were able to get jurisdiction of the family law case moved back to Michigan after the dismissal of the criminal case in Oakland County, but only temporarily. Eventually, Nilon decided to keep the case in Florida.
In a Jan. 22 hearing, Nilon expressed “suspicion and disbelief” regarding the Michigan criminal case and accused Nessel of failing to be “straightforward” about the reasoning behind the dismissal.
"Why did they drop an absolutely provable, ironclad case?" Nilon said, according to transcripts. "... The attorney general is going to have to come down here and answer that question if you want me to rely on those quote 'public statements' " regarding the truthfulness of the victims in the case.
"They're going to have to explain it to me," Nilon said. "And if they're an elected official, they should have to explain it to their voters that they would drop an ironclad case on a person charged ... with, you know, serious child sexual allegations."
After Nilon made the statements regarding the Michigan case, Johanna Mason filed a motion to disqualify the judge out of “fear that she will not receive a fair hearing,” according to court records.
Nilon on Friday denied the motion. The parties' next hearing in Florida on the request for a suspension of parenting time is March 11.