A retired local judge and an area attorney seeking a citizen’s grand jury have again been stymied, this time by the Michigan Supreme Court.

Last July, former Livingston County Circuit Court Judge Daniel Burress and Howell attorney Tom Kizer filed separate appeals of a ruling by Livingston County Chief Judge Miriam Cavanaugh assigning an out-of-county judge to hear a request for a grand jury to investigate Judge Theresa Brennan. At issue is Brennan’s admitted relationship with former State Police Detective Sean Furlong, who served as the chief prosecution witness in the 2013 double-murder trial of Jerome Kowalski that she presided over and resulted in his conviction and life sentence.

The chief reason cited by Judge Cavanaugh in her decision to send the case out of the county was Judge David Reader’s appointment of Kizer as the grand jury’s Special Prosecutor, questioning Kizer’s impartiality as he is a long-time critic of Judge Brennan and had served as the attorney for Brennan’s ex-husband in their 2017 divorce. After the Michigan Court of Appeals denied their motion, Burress and Kizer filed applications for leave to appeal with the Michigan Supreme Court. Issues were further raised about Cavanaugh’s social interactions with Judge Brennan and Det. Furlong during the time leading up to and beyond the trial of Mr. Kowalski, which they feel has not been adequately revealed.

But in an opinion released April 2nd, the state’s highest court said they were, “not persuaded that the questions presented should be reviewed by this Court.” In response, the pair issued a statement saying they were, “more than disappointed in the decision” which they felt did not explain what they believe to be serious legal issues and that the, “rule of law seems to have taken a back seat to the personal interest of the Judiciary” while also noting that the Court did not find their appeal to be without merit. They again raised their suspicions about Judge Cavanaugh's actions, alleging, “possible complicity between and among officials from the Judiciary, Prosecutor, and Police involving the cover up of the improper relationship between Judge Brennan and Detective Furlong” specifically pointing out that Judge Cavanaugh was an assistant prosecutor during the Kowalski investigation and was also a political supporter of Judge Brennan, questioning why she did not disclose that fact before issuing her order. Judge Cavanaugh previously said that the ruling of the appeals court, which cited a “lack of merit in the grounds presented,” spoke for themselves and that she would have no further comment.

Buress and Kizer say that in light of the decision of the Supreme Court they have contacted Judge John Maurer of Eaton County for action on the issue of the Citizens Grand Jury proceeding as he was appointed by the Supreme Court Administrator's Office to hear the matter. They say whatever decision he makes will remain subject to potential jurisdictional challenge in the future in the event a Citizens Grand Jury is empaneled and determines to indict one or more individuals and that anyone indicted will most certainly challenge whether his appointment. If so, they say the “failure” of the Supreme Court to address the merits of their appeal, “may come back to haunt them.”

Meanwhile, Kowalski’s convictions have been vacated following a hearing by the Michigan Judicial Tenure Commission in which testimony clearly indicated that Brennan and Furlong had an improper relationship during his trial which they failed to disclose. A hearing on a new trial is set for Thursday in the Shiawassee County courtroom of Judge Matthew Stewart, who has been assigned to hear the case. It’s expected he will rule on a defense motion that Livingston County should pay for Kowalski's attorney fees, as well as fees for experts, testing and any other costs related to investigators and co-counsel.

Judge Brennan, who has been suspended with pay from her duties, is also facing several felony counts for lying under oath and tampering with evidence in relation to her divorce trial. She is due back in court April 25th on those charges. (JK)