Attorneys spar at Eric Smith court hearing

Several verbal skirmishes over parts of Eric Smith’s criminal case broke out Thursday between the defense and prosecuting attorneys during a preliminary examination.

The testimony of Thursday’s two primary witnesses – Jennifer Meech and Robert Leonetti – at times was dominated by objections from attorneys, and defense attorney Steve Fishman and Assistant Attorney General Michael Frezza traded barbs over Fishman’s legal motion to dismiss the case against his client. The flare-ups forced Judge Cynthia Arvant to frequently intervene.

Smith, 55, of Macomb Township, the former Macomb County prosecutor, is facing an ongoing hearing over whether there is probable cause he operated a criminal enterprise and stole thousands of public dollars over his maintaining a fund separate from his county general fund budget. Smith and others approved expenditures from the off-the-books fund that was financed by two forfeiture funds and two other funds.

The criminal enterprise charge carries the harshest penalty, up to 20 years in prison.

Smith’s preliminary examination, which started in July, continued Thursday in 41B District Court.

Co-defendant Derek Miller is on trial for lesser offenses on accusations he attempted to help Smith block the county treasurer from gaining access to the funds by changing the bank account identification numbers. He is charged with misconduct in office and conspiracy to commit a legal act in an illegal manner, both punishable by up to five years in prison.

Among many, the lawyers contentiously locked horns over various issues:

• The defense objected many times to Frezza’s attempt to elicit statements from Meech about  Smith treating some employees favorably over others by handing out gifts to certain employee with money from the off-the-books fund.
• The testimony of Leonetti, a former county commissioner, was interrupted several times by objections over his and the prosecutor’s description of the legal impact of a resolution by the county Board of Commissions. Objections were also raised over other issues, such as Smith voting to appoint his co-defendant, Derek Miller, the acting county treasurer in 2016.
• Frezza accused Fishman of improperly filing a motion to dismiss the charges against Miller.

While questioning Meech, Smith’s former office manager, Frezza asked her,  “Did you observe if there were different employees that were favored employees versus other employees that were not favored?”

Smith’s attorney, John Dakmak, objected.

Frezza responded: “People that he favored, you’ll see, got spending from forfeiture accounts. People that he didn’t favor did not get spending from forfeiture accounts.”

Dakmak retorted, citing “dozens and dozens and dozens of APAs (assistant prosecuting attorneys) who were reimbursed for travel, expenses, things of that nature.

“This characterization that there were chosen folks in the office, who were liked vs. not liked, is completely mischaracterizing everything, is speculative and has no bearing on the charges in this case.”

Frezza responded: “Lori Addelia would get secretary’s gifts. She would get flowers for things. Other employees did not get that. There were other employees that were in a preferred category that did receive gifts.”

Addelia, who still works in the office, was Smith’s top administrative staffer. She is scheduled to testify at an upcoming hearing of the continuing preliminary examination. She has received immunity to testify.

Dakmak, while objecting to a new version of the question, accused Frezza of trying to draw “speculative” testimony from Meech and said “the why” of employees receiving gifts is not relevant to the case.

Judge Arvant sustained Dakmak’s objection and banned the testimony

“I don’t know that this witness can say whether Mr. Smith liked other people better than others,” Arvant said. “She can’t speculate as to his reasons for approving or not approving certain expenditures.”

She added Frezza was asking about “completely big, broad ideas, and I’m not sure when you ask broad questions like that if you have any context.”

Frezza tried to further tie Addelia to Smith.

“Did she have the ear of the prosecutor?” Frezza said, drawing a Dakmak objection.

Frezza repeated, “Did Lori Addelia and Eric Smith work hand and glove?”

Dakmak argued: “Just ask questions about facts. We don’t need nomenclature, we don’t need euphemism and we don’t need metaphors.”

Frezza, in a sarcastic tone, thanked Dakmak for the “advice” and will consider it as the case proceeds.

Arvant sustained the objection. “She (Meech) doesn’t know if Lori Addelia has Eric Smith’s ear,” she said. “She would have to speculate about that.”

Frezza again tried to squeeze in testimony about Smith’s treatment of employee, asking Meech whether she had an “opinion” about Smith’s opinion of “various employees.”

Frezza argued, “The fact that he (Smith) likes a particular employee and he’s trying to get loyalty from that employee is relevant.”

Dakmak objected, and Arvant called for a sidebar conference among the attorneys, and the questioning of Meech along those lines ended.

Earlier in the proceeding, Leonetti testified the county board passed a resolution in April 2018 telling the county treasurer “whatever public funds you get” to deposit in “designated banks and financial institutions.” The resolution is passed each year, he said.

Derek Miller’s attorney, Steve Fishman, objected to Leonetti as well as Frezza characterizing the resolution as “commanding” the treasurer to act.

“It doesn’t have the force of law,” Fishman said. “It’s a recommendation. My objection is the law commands. A resolution is Miguel Cabrera hits 500 home runs or something like that.”

Dakmak joined in the objection.

Arvant said she shared concerns about “this being characterized as a law.”

“It doesn’t contain any penalty for violation of it,” Arvant said.

Frezza agreed but said state law requires the “that all public officials account for money,” and the resolution is making a demand that is “pursuant to the county charter, which is law.”

“I think we could limit the references to this as ‘the resolution’ because I think calling it law muddies the water a bit,” Arvant said. “The resolution says what the county commission is directing its various departments to do. I think that it is what it is. It’s a resolution, so let’s limit our discussion to say this is a resolution.”

The resolution was presented by Frezza through Leonetti in an attempt to show Miller, who served as county treasurer for nearly a year in 2016, knew or should have known public dollars should be held by the treasurer and maintained as part of the county budget. Miller was appointed to the post in January 2016 to fill the term of Ted Wahby, who was the treasurer in December 2015 when he died.  Miller ran for a four-term but was defeated by Republican Larry Rocca in November 2016.

Frezza garnered testimony about how Miller became treasurer. Miller was a state representative when he received the appointment in a vote of the Macomb County Election Commission, which is made up of the prosecutor, clerk and chief probate judge. Smith, the prosecutor at the time, voted for Miller in a 2-1 vote.

Fishman objected, saying: “He was the treasurer. What does that have to do with anything, who appointed who? What does that have to do with anything?”

Frezza responded the appointment shows Smith and Miller “are in league with one another.”

“In league in the sense that Miller received favorable treatment from Smith?” Frezza added. “It makes it more likely than not that when, as the evidence did show, when Eric Smith didn’t want to turn over the Macomb County Prosecutor’s forfeiture funds, Derek Miller, in satisfying the desires of Eric Smith, suggesting (sic) changing the EINs (Employer Identication Numbers) to make it more difficult to locate those funds by the Finance Department and treasurer.”

Fishman responded by contending Frezza is “ignoring the testimony of Mr. Langtry who was sitting in the room when all this went on,” a reference to a May 2018 group gathering around Addelia’s desk that included Smith in which it was decided Miller would change the account numbers.

Arvant said she agreed with the defense attorneys “it’s not really relevant how he got to the position of treasurer. … I don’t think it really matters how the vote went.”

Frezza also elicited testimony from Leonetti that Smith’s brother, Bob Smith, was chairman of the county board in 2017-18 when the issue over the fund arose.

“I’ll stipulate that Robert Smith is the brother of my client, but I don’t see the relevance,” Dakmak said.

The judge said to move on, and Bob Smith wasn’t raised again.

At the start of the hearing, Frezza accused Fishman of filing a legal motion for dismissal of Miller’s charges “contrary to long-standing precedence” and law because it was premature, prior to the conclusion of the preliminary examination.  The motion was filed in September. The preliminary exam began in July and is expected to conclude in December.

Fishman said he is merely asking the judge to take it under advisement, which Arvant said she would do.

Frezza pressed the matter, questioning Fishman’s motive for filing it.

Arvant asked if Frezza was calling for sanctions against Fishman.

“I point that out for your honor’s consideration and leave it to the wise discretion of this court,” Frezza said.

Fishman responded: “Everything I put in there is true. Everything I put in there was something I wanted the court to consider. This business about sanctions? If I’m going to get sanctioned for a violation then go ahead and sanction me. I’ve never had that response.

“Quite frankly, if you start talking about sanctions, when this case is over with, somebody might want to know how the heck it’s possible they ever charged this guy (Miller) in the first place. But I don’t want to get into all of that.”

Arvant said, “I think that’s a bridge too far today.”

She said she will rule on Fishman’s motion following the presentation of the state’s case.

The attorneys could agree on when to end proceedings for the day. After Frezza finished his initial questioning of Meech, Dakmak asked to adjourn for the day while Frezza said there was enough time for Dakmak to start his cross-examination of Meech.

Dakmak said breaking up the cross examinaiton would disrupt “the flow” of his questioning and wanted to obtain a transcript of Meech’s testimony so far.

“I am requesting that the people are ready to go, the witness is here,” Frezza said. “I believe for the efficiency of the system, we proceed.”

Arvant adjourned for the day.

“I like to break it at a point that makes sense as opposed right to the middle of somebody’s (attorney’s) or somebody’s cross,” Arvant said. “I know everyone is busy and you have a busy schedule but we’re not going to be finished (with Meech’s testimony) today.”

Hearing dates are set for Nov. 19 and Dec. 2, 9 and 10.