On Monday, April 24, 2023, 3rd Circuit Judge Paul J. Cusick filed through counsel a Combined Reply Brief in Support of his Motions for Summary Disposition before the Michigan Judicial Tenure Commission in relation to the judicial complaint lodged against Cusick accusing him of suborning perjury, obstructing/interfering with cross-examinations, and misrepresentation to the commission.

The case is entitled “In the Matter of Hon. Paul J. Cusick,” under complaint no. 104.

Cusick argues that the Commission initially accused him of making a deal with Fishman, stating that McCully would plead guilty and cooperate in exchange for a reduced sentence. However, when confronted with evidence showing there was no such deal, the Commission changed its stance. According to Cusick, the Commission’s attempt to prosecute him was based on an unsubstantiated rule, without any supporting case law.

Another argument that Cusick posits on is that the Commission is attempting to evade the flaws in its case by playing a semantics game. Although the latter concedes that he did not provide McCully with a concrete sentencing deal, it still alleges that Cusick offered McCully “consideration in sentencing” in exchange for cooperation as a confidential informant. However, regardless of how the Commission labels it, an exchange constitutes a deal. Legal cases such as Kirchoff v Morris, and Fisk v Fisk, establish that a valid agreement requires an offer, acceptance, and consideration, as well as a meeting of the minds on all essential points. Despite the Commission’s attempts, it cannot prove that Cusick ever offered McCully a reduced sentence in exchange for confidential informant work, according to Cusick. Direct evidence shows that there was no such agreement, as it even uses the term “agreement” itself, Cusick added.

Cusick further argued that the Commission mistakes in McCully’s CI work and concludes that he and McCully had an agreement. In addition, Cusick stated that the Commission’s Kastigar letter argument contradicts its primary allegation against him and that the Commission relied on outdated statements based on incomplete or false statements.

Lastly, Cusick pointed out that the Commission erroneously assumes that McCully was a res gestae witness based on Cusick’s initial belief. However, the determination of whether someone qualifies as a res gestae witness is defined by case law, not by Cusick’s perception. According to the applicable case law, McCully does not meet the criteria for a res gestae witness. Therefore, the charge based on res gestae should be dismissed by the Master.

According to Cusick’s brief, the Master should dismiss the case as the Commission made a key concession, and its other arguments fail, concluding that:

“This case has several fatal flaws. The Commission now concedes that there was never a concrete sentencing deal and now shifts ground. It alleges that Cusick failed to disclose that he stipulated to adjourn sentencing. That’s not a violation under Michigan law.

On the other hand, the Commission still alleges—albeit by different names—that Cusick offered McCully a reduced sentence in exchange for CI work. But the direct evidence establishes that there was never an agreement, and the Commission’s theory of another concurrent “arrangement” fails under the basic principles of contract law.

Nor can the Commission establish that under case law McCully constituted a res gestae witness. And it failed to rebut Cusick’s Brady argument because it misstated Cusick’s argument and rebutted an argument that Cusick never made.”

Cusick’s reply brief came after the Disciplinary Counsel denied Cusick’s motion for summary disposition on April 19, 2023. Cusick’s motion for summary judgment on the basis of a violation of due process should be dismissed on the basis of stare decisis while the remaining motions were denied for failure to meet the standards for summary dispositions under Michigan Court Rule 2.116.

Judge Paul J. Cusick earned a law degree from Wayne State University.

The Judge’s Courtroom is located at 1441 St Antoine, Detroit, MI 48226, and can be reached at +1 313 224 5510. His bio can be found on ballotpedia.com.

A copy of the original filing can be found here.