Sunday, August 16, 2009

There was no cover-up

Former sheriff did not receive special treatment during investigation of his internet activity
BY CHRIS OGRYSKI
EDITOR

HURON COUNTY - Despite allegations to the contrary, facts show there was no special treatment from county officials for a former county sheriff who admitted he solicited sexual activity over the internet.
Questions have arisen recently after the Huron County Sheriff’s Department closed their investigation in June into possible misdemeanor charges against former Sheriff and Huron County Commissioner Michael L. Gage. The Sheriff’s Department closed out the case after receiving an opinion from the Lapeer County Prosecuting Attorney’s Office, which stated they did not think the matter was worth pursuing further.
Lapeer advised on the case, because Huron County Prosecuting Attorney Timothy J. Rutkowski is related to Gage through marriage and felt that would create the appearance of a conflict of interest if he was involved.
The investigation
According to a report from Huron County Sheriff’s Detective Richard Koehler, on Monday, April 27, Carol Gage and her family went to see Huron County Sheriff Kelly J. Hanson after seeking some advice from Dr. Rashid Iqbal earlier that morning.
They told Hanson that the previous day, Mike’s computer had malfunctioned and that their daughter Amy’s husband Don had come over to work on it. During the course of fixing the computer, he discovered some e-mails that he felt were “disturbing” and called the two together to show the messages to them.
Copies of those e-mails were turned over to Hanson, who met with Undersheriff Ron Roberts and Koehler to discuss what he had learned after Carol Gage and Amy Rogers left that morning. “It was hard to absorb,” Hanson said of the initial reaction to what he had learned. “It floored us.”
Hanson turned over 30 pages of e-mails to Koehler, who noted in his report that while some of the correspondences appeared to relate to the purchase of a Personal Digital Assistant (PDA), the rest were of a more intimate nature.
“The other correspondences were between Mike and what appeared to be other men…(and) consisted of Mike requesting nude erotic massages,” the report stated. “In the messages there were also questions from Mike about what he would have to pay for these services.”
Roberts and Koehler met with Mike privately later in the day at his residence, at which time investigators got his permission to seize his computer, as well as his laptop, to look for possible evidence.
The interview
During their talk with Gage, he discussed how over the years his desires have changed. According to Koehler’s report, “Mike said that before his stroke he became attracted to males in the 30 to 40 age bracket… (and) after his stroke the attraction became more intense.”
It was noted that about three years ago after he had a stroke, Mike started taking strong medication, which included anti-depressants and “that he felt a change in himself.”
According to an about.com article entitled “Sexuality After Stroke” by Jose Vega, M.D., Ph.D., “In some…instances a stroke can…cause increased sexuality, or unusual and inappropriately explicit sexual behavior.”
Koehler’s report also stated that one of the people Mike communicated with on the internet was a man named Charles from Berkley, Michigan. He made about three appointments for nude massages with him over a two to three year period, with his last appointment taking place about a year ago.
Mike told the officers he has had numerous intimate conversations with people (all adults) over the internet, but Charles was the only person he met in person.
Examining the computers
The next day, Koehler spoke with Sgt. Joe Brian from the Computer Crimes Unit of the Oakland County Sheriff’s Office. Koehler inquired as to whether they could conduct a forensics exam on the computers they seized from Gage.
But several factors made that exam unlikely including the fact that according to Brian, it would take up to six months to complete. Brian also added that since solicitation is a misdemeanor and they have a heavy workload, they don’t work those types of cases anymore in their county.
This was not to say Oakland County was unwilling to examine the computers, however they did note that it would take a special request from Hanson to their sheriff to make it happen.
Through this initial conversation with Oakland County, Hanson felt his office got an early look at how the law enforcement community viewed this type of case. “They said that how they handle this is they don’t deal with it, because it is misdemeanors. To us, that meant that was what the industry standard is,” he said.
In explaining why his office considered having Oakland County examine the computers, Hanson said, “We have not dealt with many internet crimes… so this is something we don’t deal with every day.”
“Internet crime training would be more like advanced training, like accident reconstruction or firearms training…it is a specialty field,” he added.
Gage’s computers did not end up being examined and were returned on Wednesday, June 10.
Seeking an outside opinion
On Wednesday, June 3 a meeting took place between Hanson, Roberts, Koehler and Rutkowski, where the Sheriff’s Department was seeking guidance from the prosecutor as to how they should proceed on the case.
“The point came where we went to see the prosecutor about what we have here and where do we go from here,” Hanson said.
“We were discussing this to make sure we did this right, to do everything we could possibly do to do this right,” he added. “(We wanted to know) what do we have here, how do we handle this and how far should we go into this.”
It was during this time that Rutkowski thought he needed to take himself out of the equation. “I suggested to the Sheriff’s Department that because I’m related to (former) Sheriff Gage through marriage that it is best that we have an outside prosecutor review it,” Rutkowski explained.
He added, “Not a special prosecutor, but just (someone) to give them advice and answer their questions regarding the investigation.”
It was decided that Lapeer County would look things over and offer advice on how to proceed. “In order to preserve the integrity of the review process the report was forwarded to the Lapeer County Prosecuting Attorney’s Office as I had previously worked in bordering counties of Sanilac and Tuscola,” Rutkowski said in a written statement last week.
Hanson agreed that Rutkowski removing himself from the case was the correct decision. “Tim was removing himself from it, because he was relation and it certainly was a conflict. I think that was exactly the right call,” he said.
Rutkowski explained that while he was informed when the investigation began and received periodic updates, it wasn’t until that early June meeting that things progressed to the point for him to pass off the case for independent review. “It really didn’t come to the point of anything being done on the case from this office’s standpoint until they came and said that they needed some questions answered about how to proceed from here in the investigation,” said Rutkowski.
Rutkowski told officers he would make arrangements for a copy of the report to be sent to then Lapeer County Chief Assistant Mike Hodges. However, it was later decided that for expediency that Koehler would drive the report to Lapeer, which he did the next day.
Hodges informed Koehler he would get back to Rutkowski and him later that day. Koehler received a phone call that same day which informed him Lapeer County would not prosecute this case if it had been theirs, based on what is presented.
A letter arrived the next day, which summarized the opinion Koehler had received over the phone. The letter stated, “I would not deem this matter to be worth pursuing any further. The matter is not current, involved consenting male adults, involved only the possibility of misdemeanors, has venue problems involving multiple counties and the venue where the actual incident occurred did not want to pursue…and the solicited male would not likely be willing to assist.”
“Furthermore, with the suspect suffering a stroke, the family is addressing the issue, the lack of any criminal history and being in his 60s, I do not believe this matter would justify expending any further resources in time of shrinking resources,” Hodges wrote.
Case closed
After receiving a signal to stop from Lapeer County, the case was officially closed by the Huron County Sheriff’s Office on Wednesday, June 10. “We got to that point through an independent prosecutor looking at it. Their opinion was, don’t do any more with it. That’s how we left it and I don’t think we should have done anything differently,” Hanson stated.
When asked if his office had any reservations when they received the red light from Lapeer, Hanson said, “I’ve worked for five different prosecutors and each prosecutor will identify the law differently, just like one judge won’t recognize the law the same as the next one.”
He added, “They have the final say, so to go and question them (doesn’t make much sense).”
Rutkowski said he appreciated the time and effort put forth by Lapeer County to assist on this case. “There isn’t anything to suggest that they didn’t exercise their judgment in a careful and detailed manner,” he said.
How Rutkowski handled his conflict
According to MCL 49.160, there is a special procedure in place should a prosecutor deem there is conflict of interest on a case.
The law states: “If the prosecuting attorney of a county determines himself or herself to be disqualified by reason of conflict of interest or is otherwise unable to attend to the duties of the office, he or she shall file with the attorney general a petition…requesting the appointment of a special prosecuting attorney to perform the duties of the prosecuting attorney in any matter in which the prosecuting attorney is disqualified.”
In Rutkowski’s interpretation of the law, it did not apply to this situation, because the case wasn’t to the point where charges were going to be filed. “As far as the procedure I used for independent review, it is used by other prosecutors’ offices,” he explained. “Another set of eyes can give an independent, honest assessment of things.”
“We’ve used it in the past and in the previous office I worked at we used that where we would review things for other counties and they would review things for us short of a special prosecutor,” he added.
In addressing allegations in the media that his failure to request a special prosecutor amounted to special treatment or a cover-up, he said, “I want to impress upon people there was no cover-up. We had a third party, an independent person, review it so that they could give us their honest assessment. They were not from the county; they didn’t know the players (involved).”
“Had the Lapeer County Prosecutor, in this case then Chief Assistant Mike Hodges, said you need to further investigate this or there are potential charges for this case, then we would have sent it to the Michigan Attorney General’s Office for the appointment of a special prosecutor,” he added.
“All they wanted at that time was to have their questions answered as to how to proceed in the investigation and Lapeer County advised them on that.”
While Rutkowski didn’t think an actual conflict existed, he felt it was better to error on the side of caution in this matter. “I look at it from the standpoint of prosecuting that is not just a conflict, but (also) what could be perceived as a conflict,” he said. “There is nothing to say I couldn’t go forward and prosecute a case like this, but if you have a perceived conflict…that is why I wanted a third party to look at it.”
Was there a conflict at all?
In addressing allegations that he offered special treatment to Mike Gage, because they are related through marriage, Rutkowski pointed out that Gage is a distant relative, his wife’s “second or third cousin.”
Rutkowski noted he has seen Gage about five times this year, including once at a family function in June. Aside from a hello and a few pleasantries, the two did not speak at the event and according to Rutkowski he did not then or hasn’t at any time “discussed this case with Mike Gage, Carol Gage or any of their family members.”
In describing exactly what their relationship is Rutkowski explained he doesn’t consider himself to be close to Mike, he doesn’t spend major holidays with Mike and he has never just sat around and watched a ball game or just hung out with him. “It’s just not that close of a relationship were we do that,” he said.
He added, “If I had kept the case and I closed it out, because we were related then that would not be right. But I didn’t keep the case and (that’s not what happened)…”
Rutkowski noted that despite accusations to the contrary, this was handled exactly as he would any other case.
Conflict of interest for the Sheriff?
While much has been made of Rutkowski’s conflict of interest in this case, Hanson explained he had to consider early on whether his office had one as well.
Looking back at how the case was handled, Hanson explained, “You can always Monday morning quarterback anything you do. Quite possibly it could be suggested that right away we should have removed ourselves as investigators.”
“Because it is certainly going to be brought up as to why we are investigating are so-called own,” he added.
He continued, “If they (Lapeer County) had asked for more information, it is apparent that more might have been looked at as to petitioning the attorney general (for a special prosecutor) or removing us as investigators, because all three of us worked for Mike at one time.”
While Hanson believes the investigation was completely on the level, he knows had it gotten to the point of filing charges, there might have been some concerns. “If it would have come down to actually, physically charging him, that would have been a concern I was bringing up…to whoever the prosecutor would have been. (We would have asked) do you think we need someone else to look at this?”
But in talking to his officers, Hanson knows that Gage received no special treatment. “I’ve been assured by the undersheriff and the detective…that they handled this just like any other investigation of that nature,” Hanson said.
“We did what we felt we had to do, we handled it the way we thought we should,” he added.
Why Gage couldn’t be charged
In looking at potential charges Gage could have faced, the two most likely would have been using a computer to commit a crime (a one year misdemeanor) and soliciting (a 93 day misdemeanor).
So how come no charges were filed even though Gage confessed? “You can’t convict someone based on their confession alone,” Rutkowski said, citing the corpus delicti rule.
According to Rutkowski’s Prosecutor Courtroom Manual, which is published by the Prosecuting Attorney’s Coordinating Council with cooperation from the Prosecuting Attorney’s Association of Michigan, “In Michigan, the common law corpus delicti rule provides that D’s (defendant’s) confession may not be admitted as evidence unless there is a direct or circumstantial evidence independent of the confession establishing the occurrence…”
Barron’s law dictionary simply defines corpus delicti as “the objective proof that a crime has been committed.”
Rutkowski explained, “When people talk about a confession, you have to have evidence it occurred without the confession, then you could use any kind of statement or confession (in court).”
“For us to go forward with a case, we need independent evidence,” he added.
In this case that independent evidence would have had to come in the form of information from Charles or someone else as to what occurred between Gage and them, along with proof that money exchanged hands.
The leak
As far as the timing of information becoming public over two months after the case was closed, Hanson knew it would eventually happen. “I don’t think anyone believed it was ‘if’ it came out, it was always ‘when’ it came out,” he said.
He added, “I never expected it to just go away, but on the other hand with the sensitivity of the whole thing it wasn’t something to be talked about.”
“People will criticize us for keeping it quite, but if no charges are going to be filed, why go and put the family through the paces,” he explained. “Forget about the suspect, he chose to be involved which is apparent in his statement, but now we have the family to deal with. I just don’t see how there will be any positive that will come out of this.”
As for who exactly leaked the information about the closed case, Hanson said, “There are suspicions, but nothing to back that up. As it goes along, you might suspect certain individuals of getting information like this out to the right people or the wrong people, however you want to look at it.”
Hanson thinks when all is said and done, many people will be dealing with the ramifications of this story. “I’m going to get one (a black eye from this), the Sheriff’s Office is going to get one, the prosecutor is going to get one from what I can see and the family is going to suffer the worst,” he began.
“The media might take a boot in the butt because of opening up a can of worms,” he added.“If someone else’s complaint was dropped, would they go to this degree asking questions if it was just a regular old Joe, opposed to an ex-sheriff and commissioner? Would that type of time and effort have been put into finding out what went on? Probably not.”

Wednesday, August 12, 2009

Cheesburger in Caseville is underway

Here's a look at pictures from the first weekend of Cheeseburger in Caseville. Look back throughout the next week for pics from the wackiest, wildest festival in the Thumb.