A motion to dismiss nearly 15-year-old Livingston County murder charges has been filed by defense attorneys representing the man facing a retrial in the case.
In 2013, Jerome Kowalski was sentenced to life in prison for his conviction in the murders of his brother and sister-in-law in their Oceola Township home in 2008. However, that conviction was vacated in 2019 and a retrial ordered following the revelation that ex-Judge Theresa Brennan, who presided over the case, was having an inappropriate relationship with the lead prosecution witness, former State Police Detective Sean Furlong.
On Wednesday, Kowlaski’s attorneys filed a motion with Shiawassee County Circuit Judge Matthew Stewart to dismiss the charges “based on violations of his constitutional rights to due process and against double jeopardy of the United States and Michigan Constitutions.” The motion notes that at the time of his original trial, Kowalski moved for Judge Brennan to recuse herself based upon allegations of an improper relationship with a police witness, but that Brennan denied that motion and that David Reader, who was Chief Judge of the Livingston County Circuit Court at the time, affirmed her decision. Reader is now the Livingston County Prosecutor, although the case has since been handed over the Michigan Attorney General’s Office to prosecute.
The motion then alleges that Detective Furlong was the person who obtained Kowalski’s “purported confession and who convinced Judge Brennan during a conversation that Defendant was guilty.” However, it states that Judge Brennan’s misconduct was “but half of that equation” and that the prosecution team had a duty to disclose the relationship between the police witness and judge but failed to do so. It concludes that the “remedy for willful prosecutorial misconduct of this nature is dismissal.”
Among the claims made by the defense is that evidence favorable to Kowalski was suppressed by prosecutors that could have been used to impeach Detective Furlong concerning his “leaking of investigatory information to Judge Brennan in a bid to convince her of Kowalski’s guilt before the case was even assigned to her.”
The motion states that the defense could have cross-examined Furlong about his “1500 phone calls, 400 text messages, numerous social meetings with Judge Brennan, his stays at her vacation cottage, his kiss in her chambers, etcetera to probe whether he was further biasing her and her rulings in the pretrial and trial phases of the case.” It goes on to allege that had the evidence been timely disclosed, the defense could have probed whether Furlong’s misconduct in communicating with Judge Brennan during the trial biased her against the defendant or influenced her evidentiary rulings. It further claims that the defense could have questioned Furlong about whether he received any financial benefit from Judge Brennan “when she allowed him to stay at her cottage- potentially rent free- for two weeks in June that provided him an ulterior motive” to talk with her.
The motion calls the Kowalski case “the poster child for prosecution suppression of impeachment evidence,” noting that on the eve of trial, the prosecution received a letter alleging a close personal relationship between government witnesses and Judge Brennan.
“This letter teed up the disclosure issue for the prosecution to act appropriately. And they had two
chances to do so: first before Judge Brennan herself and then before Chief Circuit Judge Reader. Instead of investigating the issue and disclosing the evidence, they turned over only the letter to the defendant while withholding all of the evidence they knew confirmed the close, personal relationship between Judge Brennan and Detective Furlong. Worse yet, the trial prosecutor represented to Judge Reader that “no actual facts have been placed on the record … [and] there has been nothing to indicate concern that there may have been facts known prior to the letter that
was received this morning and weren’t acted on before.” In other words, there was nothing to see here. This was false. The trial prosecutor’s misrepresentation misled the court on the recusal motion.”
The motion then states that according to Detective Furlong’s sworn testimony, trial prosecutor Pam Maas “asked him no questions about his close relationship with Judge Brennan. The reason for this, Furlong revealed, is that the trial prosecutor knew about their close relationship because Furlong had told her about it. Furlong explained that the trial prosecutor
had known for years they were close friends; she knew that Detective Furlong stayed at Judge Brennan’s cottage several times for two weeks at a time; she knew that Detective Furlong and Judge Brennan would go out to lunch together. In addition to what the trial prosecutor actually knew, she had an affirmative duty to investigate by asking some basic questions of Detective Furlong about his relationship with Judge Brennan.”
A hearing on the motion is set for Wednesday, May 11. Meanwhile, the retrial of Kowalski, who is free on a $50,000 bond, is currently set for May 16th. It was originally scheduled to begin in January but was adjourned due to the rising number of local COVID cases.
