State’s top court hears Virgil Smith case

Jonathan Oosting
Detroit News Lansing Bureau

Lansing — Wayne County Prosecutor Kym Worthy’s office on Thursday urged the Michigan Supreme Court to prohibit former state Sen. Virgil Smith from running for office again while on probation or to vacate the criminal plea deal he agreed to before resigning in March 2016.

Assistant prosecutor Jason Williams made the case before the state’s highest court, arguing trial court Judge Lawrence Talon erred when he stripped some provisions from the plea deal but enforced others, a decision upheld by the Michigan Court of Appeals.

Both courts “violated the separation of powers by binding the prosecutor to a different plea agreement than the one she had negotiated with Mr. Smith,” Williams said. “When a trial court strikes a provision of a plea agreement, they must allow the prosecutor to withdraw the plea. To not do so infringes upon the prosecutor’s charging authority.”

Smith, a 38-year-old Detroit Democrat, watched oral arguments from a seat in the Hall of Justice but declined to discuss his case with reporters. He previously served a 10-month jail sentence after pleading guilty to malicious destruction for firing an assault rifle at his wife’s Mercedes-Benz in May 2015.

Worthy has argued the restriction on public service was a reasonable part of the plea deal she struck with Smith. But a state Court of Appeals panel ruled 2-1, based on federal court precedents, “that it is improper for a public official to voluntarily resign or voluntarily forebear public office as part of a negotiated criminal plea agreement.”

Smith ran for Detroit City Council last year, advancing in the District 2 primary but eventually losing in the general election to newcomer Roy McCalister.

If his plea deal is vacated, Smith could still go to trial and face additional time behind bars if convicted, including a mandatory two-year sentence for felony firearm possession.

His attorneys argued the provisions forcing him to resign and prohibiting him from running for office during a five-year probation period where properly dismissed because they violate the separation of powers clause of the Michigan Constitution, which gives the Legislature sole authority to seat or expel elected members.

“The prosecutor violated the separation of powers here when she used the threat of prosecution and imprisonment to secure Mr. Smith’s resignation and forbearance to hold elected or appointed office,” said Katherine Marcuz with the State Appellate Defender Office.

The plea deal also limited the “right of the people to elect candidates of their choice,” Marcuz argued.

Supreme Court justices peppered both attorneys with questions, legal and hypothetical, about the plea deal.

While provisions forcing resignation or prohibiting future campaigns are rare, Justice Stephen Markman noted the U.S. Department of Justice encourages federal prosecutors to pursue them.

“Former Vice President Spiro Agnew resigned as part of a plea agreement,” Williams responded, noting the 1973 tax evasion case. “I don’t think there was any outcry at that point.”

But Marcuz said the Department of Justice only recommends such plea deal provisions in cases involving public officials charged with offenses “that focus on abuse in the office that is involved.” Smith was not accused of any wrongdoing in office.

Contract law usually discourages politicians from “bartering” their office or using it as a bargaining chip, said Justice David Viviano, who asked why a criminal plea deal should be viewed differently.

Justice Richard Bernstein asked Williams if a prosecutor could use a plea deal to prohibit a political rival from running against her, questioning whether there are limits to the types of deals prosecutors can pursue.

“Why is this not a question for voters?” Bernstein said. “Why is this a determination made by the government?”

Worthy’s office had the authority to include the provisions in the plea deal, and Smith had the option to decline, Williams said in response. Instead, the senator agreed.

“Mr. Smith could have declined this offer, could have gone to trial,” Williams said “Maybe he gets acquitted, maybe he gets convicted.”

Worthy’s office appealed to the Supreme Court in August after Smith finished second in his Detroit council primary and advanced to the general election.

The high court agreed to hear the case but declined Worthy’s motion for immediate consideration in light of his political run. Smith eventually lost his council bid.

“I’m just trying to figure out why we’re spending so much time talking about it if it’s not something that is pressing?” Viviano said.