Motion Seeks To Exclude Testimony In Kowalski Re-Trial
May 6, 2020
By Jon King / email@example.com
A hearing is set next week to hear a new prosecution motion in the upcoming re-trial of a man accused of murdering his brother and sister-in-law in their Oceola Township home in 2008.
In 2013, Jerome Kowalski was convicted and sentenced to life in prison for the double homicide, but had that conviction vacated last year following the revelation that former Judge Theresa Brennan, who presided over the case, was having an inappropriate relationship with State Police Detective Sean Furlong, who was the lead prosecution witness. Brennan was later removed from the bench by the Michigan Supreme Court and then sentenced to six months in jail following her guilty plea to a charge of perjury. Brennan was also ordered to serve 18 months of probation and complete 200 hours of community service.
A new trial was set to begin June 15th, but has been delayed due to the COVID-19 shutdown. Adding to that is a new motion filed April 17th by the Livingston County Prosecutor’s Office to exclude three of its members from being called to testify; Chief Assistant Prosecutor Pam Maas and Assistant Prosecutors Shawn Ryan and Kim Morrison. It was noted that none of the three were called to testify in the original trial and that they have no “personal knowledge regarding the murders at issue in this matter and thus have no relevant testimony to offer.”
The motion states that the reason for them being called as witnesses in the re-trial was to question them “regarding the nature of the relationship between Sean Furlong and Theresa Brennan” which would not be permitted under the state’s rules of evidence as it would be “extrinsic” or outside the bounds of the original case. It then concludes that such testimony would be an attempt to “divert the trial into a salacious and sensationalized dissection” of the relationship between Furlong and Brennan.
However, previous testimony from all three women demonstrated links to the relationship between Brennan and Furlong. Ryan testified during Brennan's 2016 divorce case that the former judge admitted kissing Furlong in 2007 and that there were regular meetings for drinks as well as a party at Brennan’s home where women, including Brennan, went ‘skinny dipping’ while Furlong was present. She also later testified to having a sexual relationship with Furlong. Maas, who tried the original case back in 2013, testified during a 2018 discipline hearing for Brennan she knew the former judge and Furlong had a social relationship, including him being at Brennan's house, but was not aware they were having an affair. However, Furlong stated in a 2018 deposition to the Michigan Attorney General’s Office that Maas was well aware of his relationship with Brennan and had sought to use that fact as a way to enhance the prosecution’s case. Morrison, who was Judge Reader’s law clerk at the time, also testified during Brennan’s discipline hearing that she was close friends with Furlong and Brennan and socialized regularly with them and State Police Trooper Chis Corriveau until 2011, when she was discovered in an extra-marital affair with Corriveau.
Livingston County Prosecutor Bill Vailliencourt tells WHMI that the basis of the motion, “is that none of those individuals can offer any testimony whatsoever on the sole question to be decided at the trial - whether the defendant killed Richard and Brenda Kowalski. To the extent the defendant wants to inject issues beyond that, those issues are irrelevant and inadmissible. The second trial has nothing to do with the first trial.” Vailliencourt added, “It was common knowledge that Brennan and Furlong were friends. What was not known at the time was the full extent of that friendship or how close it was. What the Judicial Tenure Commission as well as the Special Master found was that Brennan failed to disclose the full extent of their personal friendship. That included the extensive nature of their communications not just before the trial, but during the trial as well, which no one could obviously know. When Furlong spoke of knowing about the relationship with Brennan at the time of the trial, it was that they were friends. But the details of that relationship - that she met in chambers privately with him, gave him her husband’s season football tickets, had gone Christmas shopping with him, bought an airplane ticket for him, spoke to each other extensively before and during the trial - none of those are things that we knew or that Brennan disclosed. That’s why I agreed to a new trial. And that's why I filed the complaint with the Judicial Tenure Commission that led to her removal from the bench.”
Kowalski’s attorney Mark Gatesman says they expect to file a response to the motion by Monday the 11th. “I see it differently, but I will not comment further. To ensure the selection of an impartial jury, not influenced by extra judicial opinions of the litigants, we prefer to argue the merits of our response to Court. All attorneys, including Mr. Vailliencourt, are bound by the Michigan Rules of Professional Conduct 3.6 (Trial Publicity). This rule addresses an attorney's role in commenting in the media on pending litigation.” Vailliencourt responded by saying his comments were fully consistent with the rules governing pretrial publicity. “Neither I nor my office have released any information protected by court order from public disclosure. And I have not commented on nor discussed any of the evidence against the defendant.”
A hearing on the motion to preclude Maas, Ryan and Morrison from testifying is set for Wednesday, May 13th in front of Shiawassee Circuit Court Judge Matthew Stewart, who is presiding over the case. Judge Stewart ruled in February on a defense request to examine the personnel records of Furlong, who has since retired, finding that they contained no material that would be of assistance to the defense. Those files will remain sealed. However, he has yet to rule on a previous motion on whether an expert witness on false confessions will be allowed to testify for the defense.