Attorneys for Bob Bashara, Mark Procida and Nancy Shell, listen as Wayne County Prosecutor Lisa
Lindsey challenges a point in a hearing before Judge Vonda Evans. photo by Kathy Ryan.
January 30, 2014DETROIT — Sparks flew in a Wayne County Circuit Court hearing last week, as the judge in the case against Bob Bashara for the murder of his wife admonished prosecuting attorneys for what she believed was "forum shopping."
The hearing, before Judge Vonda Evans, was requested by attorney Henry Scharg on behalf of his client, Grosse Pointe Park resident Dean Valente. Valente, who was identified as Bob Bashara's personal attorney for his real estate holdings, was requesting the return of files seized in a raid of Valente's house Oct. 29, 2013. The raid was carried out by Grosse Pointe Park police and investigators from the Wayne County Prosecutor's Office, and was based on a search warrant signed by Judge Michael Hathaway.
According to Prosecutor Lisa Lindsey, a subpoena for Valente and a search warrant for his home office were requested based on telephone calls Bashara placed from jail to Richard Falcinelli, between March 9 and Oct. 6, 2013. Falcinelli, who holds Bashara's power of attorney, was sitting in the back of the courtroom, but when he attempted to say something, he was ejected from the courtroom by Evans.
When the investigators arrived at Valente's house, Valente declined to accept the subpoena, but the search warrant was executed. According to Scharg, investigators seized three boxes of records and various attorney files, but failed to inventory the items in front of Valente. According to Scharg, items taken included newspaper articles related to the Jane Bashara murder case, writings by Bob Bashara and legal files regarding properties Bashara owned that Valente managed. Also under question were two files, one related to a former tenant of Bashara's who was on the witness list for his upcoming murder trial, the other related to a loan made by Bashara's mother, Nancy, to his mistress, Rachel Gillett. According to Scharg, Gillett has defaulted on the loan.
Scharg requested the hearing in front of Evans to secure the release of some files seized his client maintains were not relevant to the Bashara murder case, and others were work product and still others fell into the realm of attorney-client privilege.
But even before prosecutors could respond to Scharg's request, Evans challenged how the search warrant came to be authorized by Hathaway.
"You asked for a warrant based on calls made in March, May and August, and you wait until October to request a warrant and that is what is troubling," Evans said. "This matter was before this court in September, but you go to Judge Hathaway to get a search warrant?"
Lindsey said from the beginning of the investigation into Jane Bashara's murder, her office went to the court's Chief Judge Tim Kenney for authorization of subpoenas and search warrants, explaining that working with one judge in a complex case such as this makes it easier, as the judge would be familiar with all aspects of the case.
However, when a search warrant was sought for Valente's home office, Kenney was not available and Hathaway had been designated as his stand in, which is why investigators went to him for authorization. That was when the exchange between Evans and Lindsey became heated.
"We took our investigative subpoenas to Kenney," Lindsay started to explain, "and if that person …"
"We're not talking about persons, we're talking about judges," Evans interjected.
When challenged as to why the prosecutor was in such a rush to get a warrant when the calls had been going on for six months, Lindsey responded investigators were not certain of the location of papers Bashara spoke about in the phone conversations that he wanted transferred to Falcinelli, and once that location was determined, a warrant was sought.
"We were afraid the writings could be destroyed," she told Evans.
"I'm tired of hearing how complex this case is," Evans responded. "It has the appearance of forum shopping. If there are any more subpoenas or search warrants, I must be notified. The day of you going around this court is over."
Lindsey strongly objected to Evans' accusations.
"I have a long history with this court and have never disrespected this court," she told Evans.
When tempers calmed and the focus was put back on the disposition of the files in question, Evans revealed that she had heard some of the particulars on the issue from another judge who had been named a master in the case of the Valente files, and who had been asked to review the evidence to determine what could be returned to Valente.
Evans said the other judge had discussed the issue with her at a holiday dinner party.
Evans said she will review the files, not the other judge, and that she will make the determination of what will be returned to Valente.
"I am tired of people coming into court and if you don't like what I do, there are two levels of appeals, the Judicial Tenure Commission and the Court of Appeals. I am the presiding judge and everything else will come through me.
This court was taken aback by going to Judge Hathaway. Other people are making decisions about the case. If there is a review, I am responsible."
This was not the first time Evans discussed the possibility that, if convicted, Bashara could take the case to the Court of Appeals. At a hearing on Jan. 9, she questioned whether he was receiving adequate representation from his public defender, and said if Bashara was convicted on the murder charge, he could appeal on grounds of "ineffective assistance of counsel."
Bashara was in the courtroom for the hearing on the evidence seized from Valente. He sat off to the side, smiling and sharing comments with a deputy.