Eric Smith, Tracy Green got big breaks instead of justice we deserve

Colon, Michigan is the "Magic Capital of the World," but I doubt even visitors to that enchanted village have been subjected to the putrid prestidigitation the Good People of southeast Michigan just witnessed.

First, a former prosecutor slipped out of his chains and got a plea deal that will leave an empty jail cell that should be occupied by a conniving crook.

Then the justices of the Michigan Supreme Court transformed themselves from legal eagles to turkeys with a wave of their robes.

So much for the oft-aped aphorism: "Public officials should be held to a higher standard."

Our tale of woe begins in Macomb County, where Eric "One Tough Prosecutor" Smith got the kind of plea deal he never would have authorized before he got caught picking The People's pockets. Then we pass through Wayne County on our way to Lansing, where the Michigan Supreme Court acknowledged, then disregarded, its policy that it will show no mercy to lying judges when it gave a slap on the wrist to Wayne County Circuit Court Judge Tracy "See No Evil, Speak No Truth" Green.

Oh, the humanity!

Even tough talk is still cheap

If you're not familiar with the Smith saga, grab a seat, because we've got a lot of ground to cover.

In 2019, Michigan State Police raided the Macomb County Prosecutor's office, where Smith had been talking tough about busting the bad guys since he was first elected in 2004. Smith said after the raid: "I recognize that this doesn't look great" and "We are happy about this." Only one of those comments would stand the test of time. That's because, in 2020, Michigan Attorney General Dana Nessel charged Smith with running a criminal enterprise, embezzling, tampering with evidence, forgery and misconduct in office.

Nessel estimated that Smith and his compadres skimmed $600,000 from forfeiture funds stocked with dough from drug dealers, fraudsters and drunken drivers. The money was supposed to be used to compensate crime victims and boost law enforcement. Nessel said Smith blew the loot on flowers and makeup for secretaries, parties, campaign expenses and a security system for Smith's house.

That wasn't the prosecutor's only problem, however.

Several months after Nessel charged him with 10 felonies, Smith cut a deal in a separate case brought by the feds. Smith pleaded guilty to obstruction of justice for trying to get assistant prosecutors to help him cover up a scam in which he pocketed tens of thousands of dollars that had been contributed to his reelection campaign. The by-now former prosecutor agreed to do 21 months in Club Fed, but got out after just seven months under a federal policy that allows inmates at risk of contracting COVID-19 to serve out their sentence at home. Smith has diabetes.

While serving one-third of a prison sentence might sound like a great deal, it's nothing compared to the amount of time behind bars Smith is expected to serve in the state case, which, in a word, is … nothing.

Nada.

Zilch.

Nessel's rhetoric hasn't changed in the three years since she charged Smith.

In 2020, she said: "In order for citizens to maintain trust in the institutions of government, public officials must, at all times, conduct themselves in accordance with the laws of our state. … When public officials fail to do so, the people must have confidence that they will be held to account."

Last week, after dropping seven of the 10 charges against Smith, Nessel called his crimes "egregious" and added: "The former prosecutor severely abused his position of power and stole hundreds of thousands of dollars from the people of Macomb County. Those charged with upholding the law should be held to the highest ethical standards."

All that tough talk is tough to swallow when, in the end, Nessel settled for $25,000 in restitution and will allow Smith to write the check from home, where he won't have to worry about fighting roughnecks for the remote control.

Judge Nanci Grant, who presided over the hearings, accepted the plea with a clothespin on her nose.

"Folks need to understand that the plea bargain was made between the Attorney General's Office and the defendant, and (it) is not the job of the court to reject the plea based on comments or opinion of the public," she said. "So various members of the public who have any issues or are disturbed by the plea that's been offered by the Attorney General's Office … those comments are best directed to the Attorney General's Office."

Macomb County Prosecutor Peter Lucido declined to comment on the amount of time — or lack thereof — that Smith agreed to because he said "we don’t know all of the nuances of the case."

But he questions why Nessel settled for $25,000 when she believes Smith took so much more.

"Did we really get justice in this case?" he asked.

Some lies are bigger than others

Before we delve into how badly the Michigan Supreme Court screwed up the Green case, let's give them credit for what they got right.

In June, the justices imposed a six-year conditional suspension on Kahlilia Davis, a former 36th District Court judge who gave contempt of court a whole new meaning. She didn't follow court rules, she locked someone up without due process, she abused court officials, the public and anyone who got on her nerves — and that was on the rare occasions when she went to work!

Green is a Wayne County Circuit judge who used makeup to conceal a handprint her son left on her grandson's face when he beat him. Green helped cover up the abuse of her own grandchildren and then lied to cover up her cover-up. The justices ruled that Green concealed evidence that could have revealed her son was beating her grandchildren and lied about whether her grandchildren had told her about the abuse. Lying, by the way, is just about the only sure way to get thrown off the bench. The justices said Green's "judicial misconduct warrants a serious sanction" … and then hit her with a six-month suspension and a public censure.

Oof!

What the justices got right in the Davis case underscores how wrong they got the Green case.

Davis' term in office expired eight months ago. She was disqualified in her bid for reelection last year because she failed to file campaign finance reports. (The "conditional" in her six-year sentence means the suspension won't kick in unless she someday fools voters again and wins another six-year term as judge.)

Green is still serving the term she was elected to in 2018. Judges in Wayne County rarely face opposition — and it's even more rare for a judge to lose a reelection bid.

So the justices came down hard on a former judge who is no threat to the public and essentially allowed a judge who wouldn't even stand up for her grandchildren to serve on the bench for as long as she wants.

Sheesh!

Before we delve into what a miscarriage of justice this is, I need to tell you about my history with Green.

In 2019, while working as the investigative reporter at Fox 2 Detroit (WJBK-TV), I exposed allegations that Green lied on the witness stand during a hearing to determine whether her son Gary Davis-Headd should lose custody of his children. Later that year, Davis-Headd was convicted of beating his children. He went to prison and in 2020 sued Fox 2 and me for accusing him of abusing his kids, even though it was the Wayne County prosecutors who made the allegations and we merely reported it. The case was dismissed as frivolous, allowing Davis-Headd to concentrate on making license plates.

Then, in 2021, after I had left journalism to run for Detroit City Council, I was called as a prosecution witness by the Judicial Tenure Commission in Green's disciplinary hearing.

So it's fair to say that I know a lot about Green, and much of it isn't good.

More importantly, the officials charged with protecting us from bad judges don't hold Green in high regard, either. The Judicial Tenure Commission, which investigates judges and recommends disciplinary measures to the state Supreme Court, wanted her thrown off the bench for being a liar.

But a funny thing happened when the case got to the justices, who have the final say on what happens to judges accused of misconduct.

The justices agreed that Green covered up evidence of child abuse and lied when she said her grandchildren had never told her they were being abused. But they punted when it came to what they described as "the most serious allegation" — that Green lied on the witness stand at her disciplinary hearing.

The problem was not that the justices found Green's testimony to be troubling. On the contrary; in a partial dissent, Justice Brian Zahra said he found enough "false representations she made under oath" to throw Green off the bench.

The problem the other six justices cited was that the Judicial Tenure Commission did not amend its charge that Green was a liar to say specifically that she lied during the disciplinary hearing.

"We have declined to address charges that are not formally charged in the complaint," a majority of the justices wrote.

At several junctures in their ruling on Green's conduct, the justices state that their role in disciplinary matters is to accept, reject or modify the Judicial Tenure Commission's recommendations. That's spelled out in Michigan Court Rule 9.252A. What the justices left out is that that same rule says: "When appropriate, the Court may remand the matter to the commission for further proceedings, findings, or explication."

In other words, if they smell a skunk, they can tell the Judicial Tenure Commission to keep looking for the stinker.

The stench coming off Green is overpowering.

Here's how Zahra put it: "A circuit court judge has lied under oath. Yet this court stands aside and refuses to consider this perjury because the JTC did not inform that judge that she would be held accountable for lying under oath. Nonsense. The people of Michigan deserve more than to be left with the impression that this Court's first priority in JTC proceedings is to protect the judiciary, not the public."

So instead of printing up resumes, Green is biding her time, waiting for her six-month suspension to pass. At least it's without pay. Green hasn't been hearing cases for the past couple years because Wayne County's chief judge was worried about exposing the public to her brand of justice, but he couldn't stop her paychecks. So taxpayers have been stuck paying visiting judges, who are often retired judges who get put back on the payroll, to handle Green's caseload.

Wayne County Circuit Court Administrator Frank Hardester told me Friday that "no determination has been made" about what to do with Green once her suspension is over.

I tried to ask Green what's next, but she hung up on me. Her attorney Michael Ashcraft Jr. sent me a statement that said: "Judge Green respects the Justices of the Michigan Supreme Court and their Opinion dated July 31, 2023."

"Opinion" is the legal term for the paperwork letting her off with a slap on the wrist — the kind of slap that doesn't leave a mark you need makeup to cover up.

I suspect Green doesn't like everything the justices wrote about her.

Justice David Viviano wrote: "That she chose to protect her son at the expense of her grandchildren — the innocent victims of the abuse — is profoundly troubling."

Zahra added: "The continued doubling down on falsehoods speaks volumes to the character of respondent, her unwillingness to accept responsibility for her wrongful conduct, and her fitness to serve in the judiciary."

When I asked Green in 2019 whether we could trust someone who failed to protect her own grandchildren to protect our children, she said: "I've done nothing wrong."

We now know that is not true.

Today, I'm plagued by a more troubling question: If the finest legal minds in the state of Michigan won't protect us from a bad judge, who will?

M.L. Elrick is a Pulitzer Prize- and Emmy Award-winning investigative reporter and host of the ML's Soul of Detroit podcast. Contact him at mlelrick@freepress.com or follow him on Twitter at @elrick, Facebook at ML Elrick and Instagram at ml_elrick. Support investigative reporting and use this link to invite a friend to become a subscriber. 

This article originally appeared on Detroit Free Press: Eric Smith and Tracy Green got big breaks instead of justice