Michigan Judge Paul Cusick withdraws request to exclude secret jury-room recording

On Friday, April 28, 2023, the Michigan Judicial Tenure Commission, in a notice, announced that Paul J. Cusick, a Third Circuit Court Judge in the State of Michigan, has withdrawn his motion that was requesting to exclude a secret jury-room recording.

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

The charges cited the Michigan Constitution Article 6, Section 30, MCR 9.104(1), 9.103(A), 9.104(2), 9.104(3), 9.104(4), 9.104(5); Criminal Laws of the State of Michigan, 750.424 and 750. 505; Michigan Code of Judicial Conduct Canon 2(A) and MCJCC 2(B); Michigan Rules of Professional Conduct, 3.3, 3.8, 8.4(a), 8.4(b), 8.4 (c).

The case against the respondent is rooted in a complaint alleging that the judge committed misconduct by suborning perjury, obstructing/interfering with cross-examinations, and misrepresentation to the commission. This is during the respondent’s employment in the Office of the Michigan Attorney General as an assistant attorney general from 2011 to 2016.

The report states:

“While aware that Ms. Loggie’s testimony was materially false or misleading with respect to her motive for testifying, the respondent knowingly and/or intentionally interfered with and obstructed Mr. Komorn’s attempts to determine Ms. Loggie’s true motive for testifying. During Mr. Komorn’s cross-examination of Brandy Loggie, the respondent repeatedly objected to Mr. Komorn’s questions/inquiries regarding; The circumstances under which Brandy Loggie became a CI, Brandy Loggie’s role, and/or involvement in any other police investigations, Brandy Loggie’s motivation for working with the Task Force as a CI, Brandy Loggie’s contacts with Amanda Joslin and the Pure Wellness Center prior to September 4, 2014.”

In one of the charges, the commission specifically accuses Judge Paul Cusick of withholding favorable evidence in the prosecution of a person named Amanda Joslin and suborning perjury during the same’s preliminary examination. In relation to its charges, the commission wants to admit a secret recording that Joslin’s attorney, Mr. Michael Komorn made of Brandy Loggie in the jury room before she was set to testify against Joslin. The commission doesn’t plan on calling Loggie at trial, and it has no evidence that Loggie ever approved or even knew about the recording at the time Komorn took it. The commission wants to use Loggie’s statements in the recording for the truth of the matter asserted.

In relation to the matter, on March 30, 2023, the respondent requested the master to exclude the jury-room recording made in secret by Michael Komorn of Brandy Loggie and others. According to the motion, Komorn recorded the conversation in violation of MCR 8.115(C)(3)(b) and Loggie’s statements constitute inadmissible hearsay.

The motion to exclude states:

“Here, the Commission has no evidence that Loggie ever expressly consented to be recorded in the jury before it occurred. And Komorn violated MCR 8.115(C)(3)(b) when he secretly recorded Loggie on his cell phone. Komorn is an attorney and should have known better. His actions warranted sanctions. And the Commission can’t benefit from Komorn’s impermissible recording. The Master should exclude it.”

The motion to exclude continues:

In response to this motion by the respondent, the Disciplinary Counsel stated that the respondent’s motion in limine should be denied because each piece of evidence is either: (l) already relevant to the proceedings and admissible under the rules of evidence, or (2) will only be offered if and when it becomes relevant and is then admissible under the rules of evidence.

The Disciplinary Counsel’s response states:

“The fact that Komorn surreptitiously recorded Loggie’s statements does not make them inadmissible. It is legal for a participant in a conversation to record that conversation surreptitiously. Lewis v. LeGrow, 258 Mich.App. 175, 185 (2003); Sullivan v. Gray, 117 Mich.App. 476, 481 (1982). In Sullivan, the Court observed that “it is only reasonable to expect that a conversation may be repeated, perhaps from memory or from the handwritten notes of a party to a conversation. A recording made by a participant is nothing more than a more accurate record of what was said. ” Jd. at 482. Komorn was a participant in the conversation with Loggie.”

The Disciplinary Counsel’s response continues:

“Further, disciplinary counsel does not intend to seek the admission of the Komorn recording in our case in chief. Rather, if we use it at all, we will use it to impeach Loggie if she testifies and it becomes necessary to do so. Even evidence that is excluded due to a violation of a Fourth, Fifth, or Sixth Amendment right can still be used to impeach even the criminal defendant whose rights were violated. Harris v. New York, 401 U.S. 222, 226 (1971); People v. Clark, 127 Mich.App. 176 (1983). So it is premature, at this time, to consider and determine whether the rules of evidence permit disciplinary counsel to use the Komorn recording.”

Following the Disciplinary Counsel’s response to the respondent’s motion in limine to exclude Komorn’s secret jury-room recording, the respondent decided to withdraw his motion on April 28, 2023.

The Notice states:

“Respondent Paul J. Cusick withdraws his Motion in Limine to Exclude Komorn’s Secret Jury-Room Recording.”

The Judge earned a law degree from Wayne State University.

Judge Cusick sits as a Third Circuit Court Judge in the state of Michigan located at 1441 St. Antoine, Detroit, MI 48226, and can be reached at (313) 224-2461. His bio can be found on ballotpedia.com.

A copy of the original filing can be found here.