Prosecutor Indicted For Bribery After Two Men Exonerated

On May 13, 1991 Michael Cristini and Jeffrey Moldowan were convicted in Macomb County, Michigan of kidnapping Moldowan’s ex-girlfriend in August 1990, and assaulting and raping her. The men’s convictions hinged on the testimony of three witnesses: Maureen Fournier testified the men kidnapped her and bit her while she was being raped; and two dentists testified that marks on her body matched the bite of the men’s teeth. 1 One of those witnesses, Allan Warnick, testified that the likelihood a bite mark on Fournier was made by someone other than Moldowan, “was at least 3 million to 1.” 2

In the face of the expert testimony and the eyewitness testimony of the woman, the jury ignored the men’s alibis of being elsewhere that supported their protestations of innocence. However two other men identified by Ms. Fournier as being involved were not tried. One of those men was not charged, and the charges against the other man were dropped. 3 The failure of prosecutors to take those men to trial suggested there could be unrecognized substance to Moldowan and Cristini’s claim of innocence, and that the prosecution’s experts had misanalyzed the marks on Ms. Fournier.

Moldowan and Cristini were respectively sentenced to prison terms of 60 to 90 years, and 50 to 75 years in prison.

Fast-forwarding twelve years, Jeffrey Moldowan was acquitted on February 12, 2003 by a jury that deliberated less than two hours after a six week retrial. Fourteen months later his co-defendant, Michael Cristini, was acquitted by a jury that deliberated for one hour after a three week retrial. 4

What happened to cause the exoneration of the men after each had been imprisoned for more than a dozen years? Two events severely undermined the prosecution evidence the men’s jury relied on to convict them in 1991: One of the prosecution’s expert witnesses recanted her bite mark testimony against the men; and the testimony of the other expert witness, Allan Warnick, was discredited by his demonstrably unreliable bite mark testimony in several other cases.

Jeffrey Moldowan submitted a petition to the Michigan Supreme Court in 2001 for a retrial based on new evidence that the jury’s reliance on the insubstantial expert bite mark testimony made his conviction unsafe. In his response, Macomb County Prosecutor Carl Marlinga acknowledged in a brief dated January 3, 2002, that Moldowan “may have suffered ‘actual prejudice’” from the unreliable expert testimony. 5 Prosecutor Marlinga also stated “the result of the trial could be different” without Warnick’s testimony. 6 However he also asserted the convictions were sound based on the eyewitness testimony of the alleged victim.

On May 15, 2002, the Michigan Supreme Court ordered a new trial for Moldowan. The Court’s ruling was influenced by the acknowledgement in Marlinga’s brief that Moldowan may have experienced “actual prejudice” by the jury’s dependence on the discredited bite mark testimony. 7

When Sally Moldowan learned the Court threw out her son’s conviction, she said, “It’s a miracle. I’ve been praying all of these years. The truth is finally coming out. He has spent 12 years in jail for something he didn’t do.” 8

Her joy was somewhat tempered when prosecutor Marlinga elected to retry Moldowan rather than dismiss the charges. However Moldowan was released on bail in the summer of 2002, pending his retrial. When his retrial began in January 2003, the prosecution’s case centered on the testimony of Maureen Fournier identifying Moldowan as one of her attackers and describing what he allegedly did to her.

Yet in this day and age of sophisticated forensic identification techniques, there was no physical evidence that Moldowan had anything to do with the Fournier’s injuries, or other than her claim, that she had been raped. Her examination at the hospital that treated her injuries neither indicated she had been raped, nor was the presence of any sperm detected. 9

Furthermore, a shadow was cast on her testimony by the disclosure that she was a drug user who was frequently seen buying crack in the Detroit neighborhood where she was found nude on the morning of April 9, 1990. 10 Moldowan’s lawyer suggested that her physical injuries were consistent with someone who experienced a beating by dope dealers as payback for welshing on a drug debt. Defense lawyer Dennis Johnson asked the jury a rhetorical question, “Can we believe one single that [Maureen Fournier] has said?” 11

Moldowan’s alibi – that prosecutors couldn’t disprove - was he was with friends at the time she said she was kidnapped and assaulted.

Although the retrial lasted for six weeks, the Circuit Court jury acquitted Jeffrey Moldowan after deliberating for less than two hours. After his release, Moldowan said he wanted to see Maureen Fournier charged with perjury for her lies that cost him 12 years of wrongful imprisonment. 12

Eight months after Moldowan’s acquittal, Macomb County Circuit Court Judge Edward Servitto ordered a new trial for his co-defendant, Michael Cristini. Judge Servitto ruled on October 20, 2003 that Cristini should be treated the same as Moldowan, since they were originally tried together, and the jury convicted both men by relying on the same discredited bite mark testimony. 13

Prosecutor Marlinga decided to also retry Cristini, who was released on bail in the fall of 2003 pending the outcome of his new trial. Cristini’s retrial began in March 2004, and he had the rock sold alibi by his co-workers and employment records, that he was working at his pizza restaurant job when the attack took place. 14 To counter his alibi, the prosecution complemented Ms. Fournier’s testimony with new bite mark experts to try and tie him to the attack. The defense countered with their own dental experts.

On April 8, 2004, after a three week trial, the jury deliberated for one hour before acquitting Michael Cristini. Afterwards, jurors said the prosecution and defense experts cancelled each other out. So they were left with weighing Maureen Fournier’s testimony against the solid testimony and documentary proof Cristini was working at the time of the attack, and thus he could not possibly have been involved. 15 Macomb County’s Chief Trial Attorney, Eric Kaiser, exhibited a severe case of the ‘sore losers syndrome’ by denigrating the integrity of the twelve jury members who voted unanimously for Cristini’s acquittal: “We’re hoping it wasn’t just that the jury decided to be lazy, but it certainly seemed they didn’t try to give the case any fair analysis.” 16

Cindy Barach, Moldowan’s sister, worked for years to help her brother and Cristini clear their names against the false accusations by prosecutors and Fournier that they were kidnappers and rapists. After Cristini’s acquittal she said they were first going to “celebrate, then we’re going to sue the hell out of them and make them pay.” 17

A story involving Macomb County Prosecutor Marlinga unfolded parallel to the drama of Moldowan and Cristini’s exoneration. Detroit area newspapers reported in August 2002, that Macomb County real-estate agent Ralph Roberts asked prosecutor Marlinga in May 2000 to consider that the bite mark testimony against Moldowan - that had by then been discredited - justified his support for a new trial for Moldowan. 18 Cindy Barach, Moldowan’s sister and one of his most steadfast supporters, worked for Roberts and she had convinced him of her brother’s innocence.

Seventeen months later, in October 2001, Roberts began directly and indirectly contributing to Marlinga’s 2002 campaign for the U.S. Congress. 19 Those contributions eventually totaled $8,000.

Also in October 2001, Marlinga told Moldowan’s lawyer he would take the unusual step of intervening in the case and personally writing the prosecution’s brief responding to Moldowan’s petition for a new trial. 20 However he wouldn’t promise what it would say. Although the brief filed with the Michigan Supreme Court on January 3, 2002 acknowledged the discredited bite mark testimony could have caused “actual prejudice” to Moldowan’s right to due process, it didn’t support Moldowan’s request for a new trial. 21

So Roberts’ tie to Moldowan’s sister, his contact with Marlinga on Moldowan’s behalf, his subsequent substantial contributions to Marlinga’s congressional campaign, Marlinga’s writing of the Supreme Court brief and involvement in case details normally handled by a subordinate, and his admissions in the brief that opened the door to Moldowan’s retrial, melded together to create the appearance of possible impropriety. Namely, that Marlinga’s writing of the brief and his choice of words lending credence to Moldowan’s arguments for a retrial, was a quid pro quo for the Roberts’ contributions. However that speculation was undercut by Marlinga’s pursuit of Moldowan’s retrial, and later, Cristini’s retrial, instead of dismissing the charges as he could have legitimately done under the circumstances. Additionally, after the initial news report suggesting the contributions were tainted, Marlinga returned $4,000 to Roberts before the November 2002 election - which he lost. 22

Two days before Moldowan’s acquittal, Marlinga acknowledged a federal grand jury was investigating the Roberts’ contributions to his campaign. Two weeks later, on February 27, 2003, the FBI searched Roberts’ home, office, and the office of a lawyer he was associated with. 23 Among the items seized were over 100 tape recordings. Roberts began recording all of his telephone calls in 1998 to protect himself against claims of a real estate buyer or seller about what he or they did or didn’t say. On the tapes were several conversations between Marlinga and Roberts concerning Moldowan. Marlinga told Roberts during one conversation to “tell the truth” to anyone asking questions about their relationship, and that even though they agreed on some things, they fundamentally disagreed about Moldowan: Roberts believed he was innocent and Marlinga thought he was guilty. However Marlinga did acknowledge during a taped conversation, “I’m kind of soft-pedaling some of the evidence” in the brief. 24

Two weeks after Cristini’s acquittal, federal indictments were issued on April 22, 2004 against Marlinga (nine counts), Roberts (three counts), and State Senator James Barcia (two counts). The charges were all related to the 19-month grand jury probe into contributions to Marlinga. The indictment included allegations against Marlinga of conspiracy, fraud, false statements to a federal agency, and exceeding federal campaign contribution limits. 25 Roberts was charged with conspiracy, fraud and exceeding the limit on federal campaign contributions. Barcia was accused of making false statements to the Federal Election Commission and funneling excess contributions to Marlinga through Friends of Jim Barcia. 26

The indictment alleged Marlinga accepted $8,000 from Roberts in exchange for using his official position to help Moldowan get a new trial. It also alleged that in an unrelated case, 73-year-old businessman James Hulet contributed $26,000 to Marlinga’s congressional campaign in exchange for a ‘sweet heart’ plea agreement. Hulet was facing serious prison time related to charges that over a two-year period he drugged and raped a teenage girl. 27 In January 2003, after Hulet had arranged a $1 million payment to the young woman to settle her civil suit against him, he pled guilty to a lesser charge and a Macomb County judge sentenced him to two years in prison. 28

The essence of the allegations in the indictment is that in exchange for the promise to take actions that could possibly aid Moldowan and Hulet, Marlinga fattened his campaign war chest by $34,000. 29

However amidst the breast beating by Marlinga’s federal prosecutors and political detractors, former assistant U.S. attorney and current Wayne State University law Professor Peter Henning made the often overlooked observation, “In a sense, every campaign contribution is a bribe – it’s because you expect the candidate to do something.” 30 If the $34,000 had been contributed by business people seeking support for a public works project they would benefit from – which commonly occurs - Marlinga would not have been indicted. That can be said with certainty, because those sorts of quid pro quo campaign contributions are standard fare across the country. The $34,000 mentioned in his indictment was only about 3% of the nearly $1 million contributed to his 2002 congressional campaign. The individuals, businesses and organizations that gave him that million dollars didn’t do so because of his “good looks,” but because they expected a return of one sort of another on their investment. 31 Yet neither Marlinga nor any of those contributors were indicted for their payments to his congressional campaign that can more accurately be described, Professor Henning noted, as a form of bribery.

It was not surprising then that the grand jury investigation of Marlinga, a Democrat, was begun by the Republican led U.S. Attorney’s Office in Detroit at the behest of Republican Party leaders. 32 That also explains why the U.S. Attorney in Detroit didn’t seek the indictments until after both Moldowan and Cristini were freed, since the grand jury had the information it relied on before Cristini’s acquittal. By charging a prominent Democrat with accepting a bribe that led to the release of two men convicted of heinous crimes, and another accused of such crimes, Democrats can be publicly painted with the broad brush of being soft on crime.

Michigan’s U.S. Attorney, however, is not the only one engaged in politically partisan prosecutions. Baltimore’s all Democratic city council was put under investigation by the Maryland U.S. Attorney’s Office, headed by Republican Thomas DiBagio, 33 who ordered his staff in July 2004 to “produce three “Front Page” indictments of elected officials” before the November 2nd elections. 34

A former assistant United States attorney, Marlinga had held the office of Macomb County Prosecutor since first elected in 1984. However he decided not to seek re-election after his indictment. The Detroit News reported in April 2004, “Republicans are elated with Marlinga’s decision not to seek re-election.” 35 A republican won the November 2004 election in the contest for Macomb County Prosecutor.

There is no question that Moldowan and Cristini benefited from the wording Marlinga chose to use in the January 3, 2002 Supreme Court brief. His choice to use the two magic words – “actual prejudice” – was the key necessary to open the door to the retrial and exoneration of two innocent men who otherwise might have died in prison.

Regardless of Marlinga’s motivation, if he had played it safe by listening to his assistants, and not done the right thing by wording the brief as he did, he wouldn’t be under federal indictment, and Moldowan and Cristini would still be in prison. After sending an unknown number of innocent people – including Moldowan and Cristini – to prison during his 20 years as Macomb County Prosecutor, the shoe is now on the other foot. Marlinga told reporters after his indictment, “I’m an innocent guy.” 36 Roberts also proclaimed his innocence of wrongdoing. As for his discussions with Marlinga about Moldowan, Roberts said he did what “any caring, responsible citizen of this country would have done. Two innocent men were in jail for many years. Thank God they are free.” 37

On the day he filed a civil suit against the city of Warren, Macomb County and multiple individuals, Moldowan expressed sympathy for the situation of Marlinga, the man who had twice prosecuted him for kidnapping and rape:

“Carl Marlinga, we tried to get him or someone to do what he did for a long time, and now I feel bad for him, because he was the one person who tried to do the right thing. And no matter what he has said about the case publicly, I’m sure he knows that Michael (Cristini) and I were innocent. It’s just a crying shame.” 38

If Marlinga is convicted, the surreal situation will exist of him being branded as a criminal related to his promotion - while Macomb County’s Prosecutor - of the cause of justice in Moldowan’s case. That chilling message is not lost on prosecutors nationwide. Under the advisory federal sentencing guidelines Marlinga faces eight to ten years in federal prison if convicted of the charges in the indictment. 39