People v Reginald Walker
Wayne County Case No. 13-008885-01-FH
Michigan COA Cae No. 320559
Reginald D. Walker (Also referred to as Reggie or Dean) is currently 10 years into serving a sentence of 24-40 years for possession with intent to deliver between 50 and 450 grams of cocaine. The alleged amount Mr. Walker was in possession of was 52.44 grams, ~6 grams found in his pocket and the remaining ~46 grams were found scattered on the floor of a home that wasn’t even his. There were 9 other people in that house that night, including the homeowner but Walker was the only person charged. Walker admits to the possession of the 6 grams in his pocket but maintains that the remaining 46 grams found on the floor that he was charged with were not his. He argued to the Court of Appeals that his judge was biased and won, however, they refused to grant him a new trial. His case is currently sitting in the Michigan Supreme Court.
This case is an example of the failure at all levels of the criminal justice system. It is scattered with misconduct from the night of the arrest through the trial and into post-conviction.This page provides documented proof of bias and misconduct against Mr. Walker from Mr. Walker’s trial judge, lead detective, arresting officer, prosecuting attorney, and Taylor Police Department. We hope to outline how the lead detective's bias towards Walker set the tone for the rest of the case and resulted in an entirely manufactured case to take Mr. Walker down. Mr. Walker is looking to obtain his right to a fair and impartial investigation and trial.
Before we dive into the case in its entirety I want to talk about one very important piece of evidence, an affidavit written by another individual present that night, Nathaniel Manning, claiming to have possessed some of the drugs Walker was charged with. Reginald D. Walker is serving a sentence of 24 to 40 years for possession with intent to deliver between 50 and 450 grams of cocaine. The alleged amount Mr. Walker possessed was 52.44 grams of cocaine, just over the threshold of the minimum, however he was sentenced to the highest end of the guidelines. Mr. Walker's sentencing guidelines started at 8 years and 3 months, and ended at 26 years, the judge chose to give him 24 years. He has served over 9 years.
Manning wrote an affidavit claiming he threw 3 grams on the floor and saw Officer Diggs-Taylor put it in the bag with the rest of the drugs. This amount would bring him under the 50 gram threshold and result in a sentence of no more than 5.5 years. Walker has provided this affidavit to prosecutor Sarah DeYoung and she has failed to act on the new evidence, which is her responsibility as prosecutor.
Biased Detective
The lead detective on Mr. Walker’s Case, Steven Schwein, exhibited some extremely questionable interview tactics due to the bias he holds against Walker. Back in 2007, Walker refused to cooperate in an investigation and Detective Schwein couldn’t seem to let it go. He is seen on camera during his interrogation/interview videos making blatantly biased comments at Mr. Walker as follows:
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“There’s a part of me that says that you played me and fucked me over back in the day, but I am past it,”
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“One of these days your ass is going to finally sit and you’re going to get what you deserve,”
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“Part of me knew I was going to get played and that’s exactly what happened,”
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“You’re a cancer,”
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“You’ll realize that when you go to prison, hopefully it’s this time,”
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“You put yourself on my plate and now you’re mine,”
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“Maybe I’ll get lucky and you’ll get five [years],”
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“I’ll be the first to say it I am not a big fan of [Walker's]”
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“[Walker] is going to end up on my plate. Personally I wish they’d fuckin’ take him to DOC for half a dozen years.”
As you can see, Detective Schwein was out to get Mr. Walker and wanted him to pay for his lack of cooperation in a past case in which Walker was not even a defendant.
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Biased Investigation
In the following section the question we are going to answer is ‘How Did Detective Schwein’s Bias Influence the Investigation?’ There is so much wrong with this case, beyond the effects of the detective bias, however Det. Schwein set the tone for the rest of the investigation. As lead detective it is your responsibility to gather evidence and report what you found to the prosecutor’s office. You have a level of discretion where you are is able to choose who to and who not to investigate, what evidence to and not to present, and what facts to ignore and what facts to bolster. There is also a power dynamic that comes from being lead detective to just being the arresting officers on scene so the environment and culture makes it easy to influence other officer's lower down on the totem pole. Below we will outline all the ways Detective Schwein and his bias influenced the investigation to convict Mr. Walker.
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Det. Schwein Charges Walker with All The Drugs After A Heated Interview
As mentioned above, The lead detective on Mr. Walker’s Case, Det. Schwein, showed his bias during his interview with Mr. Walker. (See biased comments above). He brought this bias into the case where he was in charge of writing and warrant recommendation to the prosecutor in which he suggested Walker be charged with all the drugs. This warrant recommendation was typed up after the heated interview. We know this because Walker's interview statements were included in the warrant recommendation and Schwein testified to the fact that you cannot go back and amend it. You are only add able to add a "supplement," which is in addition to the document separate from the original report. For more information see the list of police lies.
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Attempted to Influence Others to Say The Drugs Were Walker's
Additionally, instead of actually investigating who really possessed the drugs discovered in the house that night, Detective Schwein insinuates and even blatantly states the drugs are Walker’s at any chance he gets and if they don’t agree with him he threatens to put the drugs on them instead. Keep in mind that when they refer to "Dean" they are talking about Mr. Walker.
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Interview with Johnny Nettleton [1:05:00]:
Nettleton: “Somebody picked it up and threw it out there. Dean was by the door, I was by the door, so it had to be one of the other guys that threw [the bag of drugs].”
Det. Schwein: “Johnny you are risking possession and intent to deliver right here”
Nettleton: “I ain’t deliver nothing.”
Det. Schwein: “It’s your house”
Nettleton: “I ain’t deliver nothing”
Det. Schwein: “It doesn’t matter it’s your dope”
Nettleton: “It wasn’t my dope Dean said it was his dope. Dean told me downstairs it was all his dope.”
It is important to note that Mr. Nettleton is the homeowner of the house the large bag of drugs was found in, however, Det. Schwein was not inquiring on whether the drugs were his. He was only interested in getting him to say they were Walker's. When he wouldn't, Det. Schwein told Mr. Nettleton he was going to charge him with the drugs. Upon watching the video, it is clear Mr. Nettleton was coerced into making that confession. We know this because firstly they weren't Mr. Walker’s drugs and Mr. Nettleton knows that. If you watch the interview, you can see Detective Schwein had maintained that the drugs were Walker’s the entire interview and Nettleton denied. Once Detective Schwein said he was going to charge Nettleton with the drugs his narrative completely changed and Nettleton put blame on Walker to protect himself. At the end of the interview he even goes back to saying that Walker was not in possession of those drugs and indicates someone else was holding the drugs, gesturing to his waist band [1:05:40].
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Interview with Nathaniel Manning [37:50]:
Det. Schwein: “If you’re saying [Walker] wasn’t in the living room when the police entered that house even though that’s not consistent with what the reports reads, that's fine. I’ll tell the prosecutor that and you can risk getting hit for the 160 rocks of crack and other bullshit that was in the living room that you were in close proximity to.”
Schwein had been trying to get Manning to say the drugs were Walker's but when he realizes that Manning is not going to admit to something that isn’t true he tries to threaten to charge Manning with all the drugs in hopes he will lie to protect himself.
In both instances, it is obvious that Detective Schwein was not concerned with who truly possessed the drugs, he was only concerned with getting them to say they were Walker's to protect themselves so he could have evidence to charge Walker with all the drugs. After reviewing these interviews, Detective Schwein was not taken off the case but instead was allowed to stay on as lead detective with zero oversight.
Ignored Statements From Other Witnesses
During an interview with Nettleton (the homeowner), Det. Schwein was informed that somebody else possessed and threw the drugs:
Nettleton: “Somebody picked it up and threw it out there. [Walker] was by the door, I was by the door, so it had to be one of the other guys that threw [the big bag of drugs].”
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A few minutes later, after being coerced into saying the drugs were Walker's, Nettleton still asserts that somebody else was holding on to the drugs [01:05:40]:
Nettleton: “Because his little boys were holding on to it.”
Det. Schwein: “What boys?”
Nettleton: [inaudible] “They put them in their pockets, they had little baggies.” [gestures to waist band]
Walker is being charged with possession and intent to distribute. He has now been told more than once that someone else, other than Walker, possessed the big bag of drugs, however, this testimony was ignored as Det. Schwein was only interested in charging Walker.
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There was another instance in which Det. Schwein ignored statements from witnesses, however, it needs a little back story. There was an assault that took place at the Red Roof Inn the night of Mr. Walker’s arrest between two women, Seals and Ehlrich. Officer’s Barnosky and Toth were called to the scene. The officer's claim that the witness said Walker was present for the assault and that is why they went to find him, however, he wasn't present that night and the witness claims to have never told them that. Putting Walker at the scene helps the the Detective's agenda because it paints him as an accessory and gives the officer's a reason to make him a person of interest. Nettleton also asserts Walker was not present, however, Det. Schwein ignored his statement and included it in the warrant recommendation to the prosecutor anyway. The interview with Mr. Nettleton went as follows [1:09:10] :
Det. Schwein: "I know Diamond Seals, Nate Manning, and [Walker] were at the Redroof Inn"
Nettleton: "[Walker] wasn't with them"
Det. Schwein: "Horse shit I have a witness that puts him in the vehicle"
Nettleton: "I didn't think [Walker] was with them"
Schwein never considered the fact that Walker wasn't in that car because it didn't fit with his agenda of Mr. Walker being the bad guy. Walker also asserted that he was not present for the assault at the Red Roof Inn. This is important because it highlights the fact that Det. Schwein is willing to fabricate stories or believe what he wants to believe as long as it is consistent with the narrative he is trying to put forth.
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Manning's Money Forfeited as Drug Proceeds
The night of the arrest another individual present that night, Mr. Manning, had money on his person that was forfeited as drug proceeds. The police report includes a Drug Asset Forfeiture document signed by Manning as well as a description of why his money was forfeited in the police report narrative. He has a history of drug crimes and has been charged with possession and intent to distribute in the past. There is also officer testimony where he said he forfeited the money as drug proceeds (T2, P. 65). He later writes an affidavit admitting to possessing some of the cocaine found in the house that night. We are highlighting this information to show that the arresting officer planned to charge Manning with a drug crime but when Schwein got on the case he changed the narrative to ensure Walker goes down for this.
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Detective Schwein Backdated Tickets
The arresting officer on the scene that night, Officer Barnosky, wrote everyone in the house tickets for loitering in a place where controlled substances, paraphernalia are kept except for Walker, Nettleton, Manning, and Seals (Seals received an assault charge for a fight with another woman). The reason being is that they planned to charge them for something else, i.e. possession of a controlled substance or possession with intent to deliver. Which would make sense when you think about the fact that Manning’s money was confiscated as drug proceeds and all drugs in the house (except for what was in Walker’s pocket) were attributed to Nettleton in their system. Conveniently, Detective Schwein wrote Nettleton and Manning tickets that were timestamped for 2:17AM. Detective Schwein wasn’t even at work at 2:17AM, he got in the next morning at 8am (T2, P. 143). The only explanation for this is that Schwein went in and backdated tickets so that he could manipulate the narrative and charge Walker with all the drugs. This shows that the officers on scene had no intention of charging Walker with all the drugs. It wasn’t until Detective Schwein got on the case that Walker was considered to be the sole individual charged with all the drugs in a home that wasn’t even his.​
Unfair Trial
Both the judge and prosecutor have important responsibilities to ensure that a fair trial takes place. The judge's primary responsibility is to ensure that the trial is conducted in accordance with the law and that the defendant's rights are protected. The prosecutor's primary responsibility is to seek justice, rather than simply securing a conviction.
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Judicial Bias
According to the U.S. Constitution, a defendant holds the right to a fair trial. Included in this right, is the right to have a judge with no actual bias against the defendant or interest in the outcome of the case. A trial can never be fair if the judge is biased. So if the judge is ruled biased the defendant must be granted a new trial or else it infringes upon the defendant's constitutional right to a fair and speedy trial. It is important to keep these truths in mind as you read through this section. To reiterate:
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Every defendant has a right to a fair trial
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Every defendant has a right to a non biased judge
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A trial can never be fair if the judge is biased
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If a judge is ruled biased and the defendant is not granted a new trial, it directly infringes on the defendant’s constitutional rights
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In Mr. Walker’s case, the Michigan Court of Appeals (COA) ruled that his trial judge, Michael Hathaway, was biased but refused to give him a new trial, infringing upon his constitutional rights. It is the judge’s duty to administer justice, which is contingent on remaining neutral the entire time. A judge is similar to a referee. Their only job is to ensure a safe and fair game for everyone involved, regardless of their personal preferences and opinions. It is up to the jury to form their own opinions given the facts at hand. The COA ruled that Judge Michael Hathaway failed to do the above which is considered a structural error and deems the entire trial unfair and unreliable.
Judicial misconduct may come in a myriad of forms, including belittling counsel, inappropriate questioning of witnesses, providing improper strategic advice to a particular side, biased commentary in front of the jury, or a variety of inappropriate actions (STEVENNS, 498 Mich. 172-173).
The prosecution argued that the defendant sold drugs to get money (T1 21-25), and attempted to convince the jury that money found on the defendant were proceeds (T2 48-49, 86-87, 100-102, 105-106). The defense argued that the drugs found on the floor were not Walker's and he had no intention of distributing any drugs, he was simply a user. All of the trial judge’s comments were beneficial to the prosecution’s argument and undermined the defendant’s argument. The following are some of the Judge Hathaway's comments:
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Judge Hathaway: Well, people who sell drugs may also use them. They usually do actually as you know and so that doesn’t rule out that he may have also been selling or distributing drugs.
Judge Hathaway: The man is charged with being in possession of drugs with the intent to sell or distribute. His use habits are not relevant to that charge.
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Judge Hathaway: I mean it also invites -- frankly, you know, opening the door, it invites inquiry into how he supports his habit, too, doesn’t it.
Judge Hathaway: The way you and your clients conducted this redirect examination it leaves the jury with the false impression that he is only a user and that he received treatment for his use problem. And there’s sort of a vague implication there that that was successful. And, of court that is a completely false impression as the jury will soon learn because I’m going to allow Ms. DeYoung to get into the subsequent convictions.
Judge Hathaway (charge to the jury): And then it was also offered to answer the testimony that the defendant gave that he had been to drug rehabilitation after one of his offense in 2008. And that his going to drug rehabilitation, I'm not sure what that was to prove or suggest, but in any event his, his offense, his drug offenses subsequent to that were offered to undercut that claim.
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Judge Hathaway: You can squawk about it in the court of Appeals if you'd like.
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Judge Hathaway (charge to the jury): Either believe or disbelieve that the defendant had possession of the larger amount of cocaine. The cocaine was found on the floor by his, according to some of the testimony, near the defendant's feet and add that to the cocaine that was found in his pocket.
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Each one of these comments was meant to undermine the defendant’s argument and credibility, and meant to assist the prosecution's theory. Because the judge is the authority of the court the jury is more likely than not to adopt his attitude, both disdain for the defense and the belief in the prosecution.
The defendant’s primary defense was that he was a drug user and had no intent to distribute. The judge completely undermined that defense on more than one occasion. (See above comments 1-4). Every single one of those comments was meant to attack Walker’s defense. At any chance he got, Judge Hathaway tried to put it in the jury’s mind that Walker is a drug dealer. He negates his defense by saying that people who sell drugs “usually do actually” use them. He claims “his use habits are not relevant” stating his defense isn’t relevant. Walker mentioned drug rehab to support his defense that he is a drug user to which the judge responded that that was “a completely false impression,” outright stating his defense is a lie. When Walker's defense lawyer asked to respond, Judge Hathaway denied him and stated "You can squawk about it in the Court of Appeals if you'd like." This indicates to the jury that the judge himself has already found him guilty and is expecting him to have to appeal the conviction. The judge is being blatant in expressing his opinions on how he believes this case should go. In his mind, the fight is over, Walker is guilty, and he will have to fight this conviction in the court of Appeals. He expresses these opinions in front of the jury.
A judge does have some discretion to comment on the evidence, however, there are several important limitation to such discretion:
The trial court’s comments must be fair and impartial, BURPEE v LANE, 274 Mich 625, 627; 265 NW 484 (1936), and the Court should not make know to the jury its own views regarding disputed factual issues, PEOPLE v YOUNG, 364 Mich 554. 558; 111 NE2d 870 )1961), the credibility of witnesses, PEOPLE v CLARKE, 340 Mich. 411, 420-421; 65 NWd 717 (1954), or the ultimate question to be submitted to the jury, LINTZ, supra at 617-618, NW 201.
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Fair & Impartial
First, the trial court’s comments must be fair and impartial. Fair and impartial means that the comments cannot denigrate the defendant's argument and/or uplift the prosecutor’s argument. In Mr. Walker’s case, the judge did both. As explained above, his comments undermined the defendant’s argument entirely. Those actions, in and of itself, assist the prosecutor because it makes it far easier to prove your point if the judge has negated the defense's argument. Even so, Judge Hathaway took it further. Mr. Walker’s defense requested a directed verdict which means the prosecutor doesn’t have sufficient evidence to prove her case. Mr. Walker argued that the prosecutor didn’t present enough evidence to prove that the drugs reached over 50 grams of cocaine. Hathaway denied the directed verdict and stated, in regards to count one:
Judge Hathaway: As far as the weight goes I think it’s frankly kind of a close call, but I agree that there's probably enough to let it go to the jury on over 50 [grams].
Now, above he is saying that there is enough evidence to prove that Walker possessed over 50 grams of cocaine, in count 1 of the charges. Check out what he says moments later, about 8 pages later in the transcript.
Judge Hathaway: Because he could conceivably be convicted, he could be found guilty of count 1 and guilty of simple possession in count 2 theoretically. I mean the jury could believe that the, they could believe that he had possession of all of-- no, because doesn't add up to 50.
DeYoung [Prosecution]: the only way we get to 50 is to add all the cocaine found in the house.
At this point Hathaway and DeYoung both knew that the drugs in count one didn't add up to 50 grams (See Prosecutorial Misconduct below). So they devised a plan to add the drugs in count 1 to the drugs in count 2 in order to make them weigh over 50 grams. This is after the trial had ended, there was no more testimony. And Hathaway knew at this point that, moments earlier, he wrongfully denied Walker’s directed verdict motion because the drugs in count one couldn't reach over 50 grams. Now watch how brazen they were to plot against Walker on the record:
Judge Hathaway: All right. So how do we do this?
DeYoung [Prosecution]: If we could maybe just ascribe count 1 to be the jury's determination as to weight if he's-- if its for everything that's in the house, it's either possession with intent to deliver over 50 grams or in the alternative possession with intent to deliver less than 50 grams. That can go for the baggie. The aggregate and the baggie on the floor.
Judge Hathaway: okay.
DeYoung [Prosecution]: Count 2 could be for the drugs in his pocket. Is that possession with intent to deliver? Is that simple possession or is that not guilty?
Judge Hathaway: But the trouble is that -- oh. Well, all right. But then you've got the drugs that are , that are part of count 2 also part of count 1. Doesn't that present a bit of a problem?
By Michigan Law, there are only two instances in which two different sets of drugs found in two different places can be aggregated. One is if the prosecutor aggregates the drugs when they first charge the defendant (People v Cortez 131 Mich App 316, 331-332 (1984) and People v Hahn 183 Mich App 465, 469-470 (1989)) and another is if the defendant is also charged with conspiracy (People v Justice, 454 Mich 334, 342 (1997) and People v Collins, 298 Mich App 458 (2021)). Neither of these are true in Walker’s case, meaning that the judge and the prosecutor illegally aggregated the drugs and did so confidently on the record. The drugs on the floor in the house were considered count 1 and the drugs in his pocket considered count 2. So when presenting the jury with their instructions, Judge Hathaway gave them an option to convict him of simple possession of the drugs in his pocket or to convict him of possession with intent to distribute over 50 grams by combining both the drugs in his pocket (count 2) with the drugs on the floor (count 1) (See Jury Instructions). They were never given the option to convict him of the drugs in his pocket and the drugs in the house separately which is mandated by law.
Another example of how Judge Hathaway was not fair and impartial was when he encouraged the prosecutor to object on more than one occasion. Walker’s defense team attempted to enter into evidence photos showing he had lost 111 lbs in a 7 month period to support his argument that he was a drug user not a drug dealer by showing his rapid weight loss from cocaine use. First, it must be noted that Hathaway didn't question any of the exhibits the prosecutor asked to be entered into evidence, only Walker’s. This is what was said:
Judge Hathaway: All right. And they're to prove what? I mean what's the ... his weight fluctuates?
Short [Defense]: Just that Mr.Walker has.. significant weight loss since his drug use.
Judge Hathaway: Any objections to A and B?
DeYoung [Prosecution]: Well, I think he's testified that he's been using drugs since 2003, so I'm not sure--
Judge Hathaway: Yeah. I don't get how these--
Short [Defense]: I can lay more foundation, your Honor.
Judge Hathaway: Well, it's not the foundation. It's the relevancy. What do they prove?
Short [Defense]: They're physical evidence, your Honor, that Mr Walker, when he smoke or was smoking crack cocaine, he lost weight. And when he wasn't, he gained weight.
Judge Hathaway: So what? What is the point? He's charged with being in possession of a lot of drugs with the intent to sell or distribute them...What is the point of whether or not he's used drugs? He's admitted he used drugs in the past. His weight fluctuates. Maybe those two things are related, maybe not. What is the difference?
Short [Defense]: Your Honor, he's currently charged with possession with intent to distribute.
Judge Hathaway: I just said that.
Short [Defense]: This evidence is going to show that Mr Walker was in possession with intent only for personal use of the drugs on his, on his person.
Judge Hathaway: Well, people who sell drugs may also use them. They usually do actually as you know. And so that doesn't rule out that he may have also been selling or distributing drugs.
Short [Defense]: I don't think that it rules anything out, your Honor. But I think that it gives the jurors another-- an alternative explanation for Mr Walker having drugs in his pocket. And that being that he had them for personal use and not for possession with intent to distribute.
Judge Hathaway: I don’t know how it proves that, but all right. Well, anyway, do the people-- I'm sorry. Did you have an objection to this?
DeYoung [Prosecution]: I just don't think it's relevant.
Judge Hathaway: I don't either. OK. The objection is sustained.
At another point in the trial Hathaway encourages prosecutor DeYoung to object yet again. Mr. Walker’s lawyer brought up his drug rehab to help outline how he has struggled with drug use and has been treated for his drug use problems in the past. Judge Hathaway interjects and says:
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Judge Hathaway: What may I ask was the point of that redirect?
Short [Defense]: The point of the redirect, your Honor, is that Mr. Walker is and has alleged to be a drug user, not a drug seller.
Judge Hathaway: And because he went to Gateway right after the 2008 conviction that-- okay. Well Ms DeYoung does that raise any...interesting issues?
DeYoung [Prosecution]: May we approach?
After DeYoung approaches the stand to discuss with Judge Hathaway, Hathaway decides to allow the discussion of past convictions. Had Hathaway not initiated the objection by asking if that raises any ‘interesting issues’ then it is likely Mr. Walker’s past convictions were not to be released. It is strictly forbidden for a judge to give either side strategic advice.
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Disputed Factual Issues
Second, the court should not make known to the jury its own views regarding disputed factual issues. While a judge “may, in making such comment, review the testimony, the language employed must be such as will not leave in the minds of the jury a fixed opinion that a disputed fact has been proven and that they must so consider it in arriving at their verdict. (PEOPLE v LINTZ, 244 Mich, 603, 617 (1928)). A disputed fact is something that the prosecution and defense are arguing over. During his final jury instruction on the law the judge made a statement about a disputed fact the supported the prosecution's argument:
Judge Hathaway (charge to the jury): Either believe or disbelieve that the defendant had possession of the larger amount of cocaine. The cocaine was found on the floor by his, according to some of the testimony, near the defendant's feet and add that to the cocaine that was found in his pocket.
The disputed fact in this case was where the large bag of cocaine was found. Some of the officers testified that the drugs were not found by the defendant’s feet. (T2 131). While other officers testified that they did not see any big bag of drugs near the defendant when they entered the home. (T2 51-52). And the defendant himself testified that there was no big bag of drugs by his feet, and he did not have or possess a big bag of drugs. (T2 229-230).
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Answering Ultimate Questions
Third, the judge is not allowed to answer the ultimate questions of the case. Under Michigan law, "ultimate questions" refer to the essential factual or legal issues that must be decided in a case in order to resolve the dispute. In Walker’s case, the ultimate questions were (1) whether Walker possessed the drugs, (2) whether Walker intended to sell the drugs, and (3) Did the drugs weigh over 50 grams. The judge answered all of these questions through his statements. He answered the first question when speaking to the jury and saying “The cocaine was found on the floor by his, according to some of the testimony, near the defendant's feet.” (T3 p125). There was testimony from other officers that did not support this theory but he only chose to mention the testimony that did support the theory that the big bag of drugs were in fact Walker’s. The second question, whether Walker intended to sell the drugs, was answered when he made comments such as “Well, people who sell drugs may also use them. They usually do actually as you know” (T2, page 222). As well as when he stated “His use habits are not relevant to that charge” (T2, page 223). He made a few more comments that indicated he believed Walker to be a drug dealer. (See list of comments above). Finally, he answered the third question of whether or not the drugs were over 50 grams in a couple of backhanded ways. First, he made the comment about the drugs being found at his feet which made a statement to the jury that the big bag of drugs were his. Without the big bag of drugs there was no chance he could have been charged with over 50 grams. So by making that statement he gave the jury a push to believe those drugs were his and thus he possessed more than 50 grams. Another more discrete way he answered that question for the jury is by manipulating the jury verdict form in a way that didn’t allow the jury to decide on each count. The drugs on the floor in the house were considered count 1 and the drugs in his pocket considered count 2. So when presenting the jury with their instructions, Judge Hathaway gave them an option to convict him of simple possession of the drugs in his pocket or to convict him of possession with intent to distribute over 50 grams by combining both the drugs in his pocket (count 2) with the drugs on the floor (count 1) (See Jury Instructions). They were never given the option to convict him of the drugs in his pocket and the drugs in the house separately which is mandated by law.
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Credibility
Finally, credibility. The credibility of a defendant and a witness is up to the jury’s determination. This entire case was a credibility contest, as stated by the prosecutor herself in her closing argument. There were no tangible facts tying Walker to those drugs other than the police testimony. It was a matter of ‘he said, she said.’ It is clear that the Judge was attempting to diminish the credibility of Mr. Walker by making all the comments about Walker being a drug dealer not a drug user. If that is his defense and the Judge is outright saying that defense is a lie then the defendant’s credibility is immediately shot. By diminishing Walker’s credibility it strengthens the prosecution's credibility, which is all the prosecution really had in this case.
The comments above made by Judge Hathaway were so helpful to the prosecution that she actually used them to construct her rebuttal argument:
DeYoung [Prosecution]: There’s been this ploy of sympathy about poor Mr. Walker. He’s just a poor drug addict. He, he just takes his -- He just takes the drugs. He doesn’t sell the drugs. How do you think, with reason and common sense, he gets the money to buy the drugs he is taking? He sells the drugs.
Not one time, before Judge Hathaway made the above comments, did the prosecution argue or present any evidence that the defendant was a drug user who sold drugs to support his habit nor did they argue that the defendant was “not only a user.” Nor did the prosecution argue that “Selling drugs” and “using drugs” go hand in hand. It is obvious the prosecution's closing argument was predicated off the judge's comments.
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Over Sentencing
24 to 40 years is Walker’s sentence, for the alleged crime of possession with intent to deliver 52 grams of cocaine. The actual charge is possession with intent to deliver between 50 grams and 450 grams of cocaine. My sentencing guidelines were 99 months (8 yr 3mo) to 316 months (26 yr 4mo). Although he had the minimum amount of drugs, 52 grams, 2 grams above the 50 gram threshold, the judge sentenced me to nearly the max time (24 years) as if I possessed the max amount of drugs (450 grams).
There is a law in Michigan called proportionality. This law is meant to make sure the sentence is proportionate to the offender by weighing the seriousness of the offense and the offender, then concluding a proper sentence within the guidelines. In my case, the judge didn't weigh the seriousness of the offense (being 52 grams out of 450 grams) before sentencing me to the max. The sentence he gave was strictly due to biases and dislike instead of the law and its procedure.
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Prosecutorial Misconduct
According to the American Bar Association, “the primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict. The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.” So you must keep in mind as you read that it is the prosecutor’s job to seek justice not convictions. In Walker’s case, Prosecutor DeYoung only seemed interested in securing the conviction and was willing to break her oath as a prosecutor to do so.
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Aggregating the Drugs
As mentioned above in the judicial bias section, the judge and prosecutor illegally aggregated the drugs in order to get Walker to the 50g threshold. The prosecutor knew before trial that the drugs didn’t reach above 50 grams. We know this because of the testimony put forth by forensic expert Tiffany Staples where she testifies to Prosecutor DeYoung’s office contacting her after she had weighed the drugs to see if she can find any more cocaine to get it above the 50g threshold. See Tiffany Staples testimony (T2).
Tiffany Staples also explained the highly concerning method she weighed the drugs with. As we know, Walker was convicted of possession with intent to distribute between 50 and 450 grams and was sentenced to 24 years. The alleged amount of cocaine was 52.66 grams, just 2.66 grams above the threshold. To put things in perspective, if the drugs weighed 2.66 grams (3%) less, then Walker would have been facing a sentence of 3 years. The method they chose to weigh the drugs was to weigh one of the crack rocks discovered in Walker’s pocket and one of the crack rocks discovered in the big bag of drugs that looked “about average in size.” The rock in his pocket weighed 0.17 grams when the rock found in the bag weighed 0.21grams. They used the rock that weighed 0.21 and multiplied that by the number of rocks present. Using that method they totaled just about 52 grams, which is 2 grams over the threshold. If the rocks averaged closer to the 0.17 rock they weighed it could have easily been under 52 grams. Given those 2 grams were a difference of more than 20 years of his life served in prison it seems pretty careless to weigh the grams based on an average instead of an exact amount. (See testimony about method used to weigh drugs).
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Nexus - Metformin
Michigan has a law called constructive possession, it is used to prove a person possessed contraband that was not actually discovered on that person. In order to prove a person possessed contraband that wasn't discovered on them, the prosecutor must show a "Nexus", which only means connection. To show this connection between Walker and the drugs discovered in the house the prosecutor stated that a diabetes medication (metformin 500mg) that was discovered with the big bag of drugs was Walker’s prescription from the prior month. Mr. Walker is a diabetic who takes metformin 850 mg, not 500 mg. Prosecutor DeYoung argued that the metformin 500mg was Walker’s old prescription from the previous month and the 850 mg was his new prescription. This, however, was false. Mr. Walker was never prescribed metformin 500 mg. (See Walker’s medical records). DeYoung chose not to subpoena Walker’s medical records but instead argue a false theory to the jury. Without the nexus there’s no connection and without a connection there’s no trial.
The drugs would’ve been dismissed had Prosecutor DeYoung not lied and argued a false theory. During a directed verdict motion to have the over 50g count thrown out the judge stated "But the presence of his metformin in the rest of the stash, and it was evidently his metformin, although I recognize that the label on the prescription bottle and the prescription of the pills varies a little, but still it’s metformin. There's no other explanation where metformin would have got in that stash. So the jury could conclude that that was his metformin. So the presence of his metformin in the larger stash is circumstantial evidence that it was his. So that can go to the jury" [Directed Verdict Motion]. It is clear, Prosecutor DeYoung's false statement is the only reason the judge allowed that charge to go to the jurors. If a seasoned judge believed it, there is no doubt that the jurors also believed it.
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Allowing Police to Lie on the Stand
As part of their responsibility to seek justice, prosecutors have an obligation to ensure that only truthful and reliable evidence is presented in court. This includes taking steps to determine whether a witness is lying on the stand. The prosecutor allowed the police officers and detective to lie about their ability to interact with each other, in order to minimize the detective’s role in the investigation and charging of Mr. Walker with all the drugs discovered. It was argued by the defense that since Det. Schwein was biased against Walker, he was able to encourage the arresting officer’s to help him in manufacturing the case against Walker. The prosecution argued that this theory was impossible because the arresting officers got off work at 7am and Schwein got into work at 8am so he couldn’t have influenced them because they “couldn’t have even seen each other in the parking lot” (T2, P. 144). The following information proves that officers lied on the stand and Prosecutor DeYoung allowed it, proving she failed to uphold her responsibility as prosecutor. Officer Barnosky first testified that the report was finished and he had completed his shift by 7am (T2, P. 42). So first off we know that this is a lie because the evidence log sheet shows Barnosky logging in evidence after 9am as well as tickets written by Barnosky and time stamped well after 8am. After Barnoksy’s testimony, Toth testified that the report was not finished until 9 or 10am, which is consistent with the evidence log sheet and the time stamped tickets, indicating that Toth was telling the truth. After Toth’s testimony, Prosecutor DeYoung asked Det. Schwein (1) what happened when he got into work the next morning at 8am? To which he answered that his supervisor gave him the police report to investigate the case and (2) was he at work the same time as the arresting officers Barnosky and Toth? To which he answered no and he would not have seen them in the parking lot. (See testimony). Officer’s Toth’s testimony alone should have informed the prosecutor that Det. Schwein could not have received the police report at 8am and that he was definitely at work with Officer Toth and Barnoksy after 8am. These discrepancies are extremely obvious and should not have been overlooked by Prosecutor DeYoung especially when she argued in her closing argument that it was impossible for Det. Schwein to influence arresting officers because they could not have been at work at the same time the following morning.
The prosecutor also allowed Det. Schwein to lie about writing the warrant recommendation before interviewing Mr. Walker. Because Walker’s interview comments are included in the warrant recommendation, the defense argued that Det. Schwein charged Walker with all the drugs in the house after their heated interview, showing how his bias impeded the investigation. In the prosecution’s attempt to rebuttal this statement, Det. Schwein testified that he typed up the warrant recommendation before the interview “minus your client’s statements” (T2, P. 161-162). Schwein also testified that there is no way to go back and edit the police report unless you add an “addendum” which is a separate page at the end (T2, P. 145), which goes directly against his previous testimony that he went back in after the interview to add his comments. Therefore, the detective had to conduct the interview first because the comments are included in the warrant recommendation and not as an addendum. The prosecutor knew the testimony was false because she and her office had to read the warrant recommendation to bring charges on Mr. Walker.​
Police Lies / Perjury
Police officers have a duty to uphold the law and to provide truthful testimony in court. If they are found to be lying, it can undermine public trust in the criminal justice system and can result in wrongful convictions. On several occasions during Walker’s trial, Taylor Police Officers lied on the stand effectively committing felony perjury. Below is a list and description of the lies put forth by the Taylor PD while testifying on behalf of the prosecution:
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Officer Barnoksy lied about how they retrieved Walker’s location. There was an assault that took place at the Red Roof Inn the night of Mr. Walker’s arrest between two women, Seals and Ehlrich, Officer’s Barnosky and Toth were called to the scene and interviewed all witnesses. Officer Barnosky testified and stated in the police report that the victim of the altercation, Ehlrich, made the following statements: (1) Walker was present during the altercation but he stayed in the vehicle and never entered the hotel room, (2) Defendants were known to be on felony parole and carry guns, and (3) Defendants were known to hang out in the area of Superior St. and Marvin St. (T1 P. 75, T2 P. 29, Police Report). Ehlrich was willing to testify to the fact she never told the officers any of the above information but she was unable to testify because she was in the hospital getting back surgery.
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Officer Barnosky lied about the time he left work. Officer Barnosky testified that the report was finished and he had completed his shift by 7am (T2 P. 42). We know this is a lie because the evidence log sheet shows Barnosky logging in evidence after 9am as well as tickets written by Barnosky and time stamped well after 8am.
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Det. Schwein lied about writing the warrant recommendation before interviewing Mr. Walker. Because Walker’s interview comments are included in the warrant recommendation, the defense argued that Det. Schwein charged Walker with all the drugs in the house after their heated interview, showing how his bias impeded the investigation. In an attempt to rebut this statement, Det. Schwein testified that he typed up the warrant recommendation “before the interview minus your client’s statements” (T2 P. 161-162). Schwein also testified that there is no way to go back and edit the police report unless you add an “addendum” which is a separate page at the end (T2 P. 145). These 2 testimonies contradict one another because if he were to go back and add Walker’s comments from the interview to the warrant recommendation then it would be included as an addendum, however, it was included directly in the police report. Therefore, the detective had to conduct the interview first before writing up the warrant recommendation like the defense argued.
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Barnosky and Toth lied about Johnny Nettleton (HOMEOWNER) giving them permission to enter the house (T2 P. 31-32; T2 P. 114-115). Nettleton testified that he never gave the officers permission to enter the house (Motion Hearing, P. 47-51). and he maintained in his interview with Schwein that he never gave them permission (See interview video). If you look at this logically, why would a man with a bunch of drugs and drug paraphernalia scattered around his home give police officer’s permission to enter his home and look around stating “come on in, I’ve got nothing to hide” when he does in fact have a lot to hide. This is completely untruthful and objectively an unbelievable situation.
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Officer Barnosky lied about the fact that the man upstairs was sleeping (T2 P. 35, 52). He made this statement with conviction and confidence without knowing whether or not it was true. The man upstairs was not sleeping but if he were it would support the prosecution's theory that Mr. Walker possessed the big bag of drugs. Upon contacting the individual who was upstairs that night, he stated that he was not asleep but requested to “not get involved.”
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Both Officer Barnosky and Toth lied about how the CLEMIS system works (T2 P. 62-63, 125). In the CLEMIS system, a program used by police departments across Michigan, the big bag of drugs was initially attributed to the homeowner, Johnny Nettleton, which is consistent with the defense’s argument that the arresting officers never thought the big bag of drugs were Walker’s until they were influenced by Det. Schwein and his bias. When questioned about this, Officer’s Toth and Barnosky said that they have to attribute the drugs to someone or else the system won’t allow them to finalize the report. Upon reaching out to a neighboring Police Department that also uses the CLEMIS system, it became apparent that it is possible to finalize a report without associating every item found to a specific individual. (See Response from Westland Police Department).