Hours of off-the-record discussion delay hearing for attorney charged with sexual assault
After hours of discussion in bench conferences and behind closed doors Thursday, a hearing was scheduled for Tuesday to work out evidentiary issues in the case against Nader Nassif.
Nader Nassif
Courtesy of WCSO
Nassif, a former Ann Arbor Downtown Development Authority board member, was in court Thursday morning for his first preliminary exam hearing after being charged with third-degree criminal sexual conduct. The charge stems from an alleged sexual assault that took place on July 31. Nassif resigned from the DDA after he was arraigned.
Washtenaw County Assistant Prosecutor J. Samuel Holtz and Nassif’s attorneys, Joe Simon and Jill Schinske, approached 14A District Court Judge J. Cedric Simpson about 8:50 a.m. when the case was called. A 40-minute, off-the-record discussion ensued before the case was passed.
Just after 11 a.m., Nassif’s case was called again and Washtenaw County Chief Assistant Prosecutor Steven Hiller joined Holtz in another bench conference with Simon, Schinske and Simpson. After about 10 minutes, the four attorneys went into Simpson’s chambers to continue the discussion.
Nearly an hour later, all five returned to the courtroom. Simpson said the discussions revolved around evidence Schinske wants to protect due to attorney-client privilege.
The discussion was on “certain issues … some of which may not be fully added on the record,” Simpson said in court.
Schinske placed her appearance on the record when the case was initially called, and said she intended to protect attorney-client privilege in regards to items seized from Nassif during the investigation. Nassif was arrested at his apartment in the 200 block of South Fourth Avenue, which is where the alleged incident occurred.
Simpson scheduled an evidentiary hearing in the case for 1:30 p.m. Tuesday at the 14A-1 District Court in Pittsfield Township. The preliminary exam was adjourned until 1:30 p.m. Sept. 20 in the same court.
Hiller directed questions on the evidentiary issues to a written motion filed by the defense. A copy of that motion was not immediately available at the Washtenaw County Trial Court because the file was at the 14A-1 District Court for Simpson’s viewing during the hearing.
The hearing Thursday was the latest bit in a series of legal gymnastics since Nassif’s arrest on July 31.
Nassif was held at the Washtenaw County Jail and was scheduled to be arraigned there on Aug. 2. His arraignment was delayed and officials said it had been moved to Aug. 3, until court officials realized Nassif would have to be released if he was not arraigned on Aug. 2.
Court officials told AnnArbor.com the only magistrate available on the afternoon of Aug. 2 was at the 15th District Court, where Nassif’s law firm is contracted to provide representation to indigent clients. He was arraigned on the sexual assault charge there and then bonded out of jail.
Computer court records did not show any results for Nassif until Aug. 7, five days after his arraignment. There was no physical file in the court at that time, and AnnArbor.com was not able to view a copy of the criminal complaint against Nassif until Tuesday, when it was obtained through a Freedom of Information Act request from the prosecutor’s office.
The charge indicates the alleged victim in the case was incapacitated and sexual penetration took place, according to the complaint.
Nassif knew or had “reason to know that the victim was mentally incapacitated and/or physically helpless,” according to the complaint.
Nassif is no longer being appointed to cases at the 15th District Court, officials confirmed this week. He declined comment after the hearing on Thursday.
Kyle Feldscher covers cops and courts for AnnArbor.com. He can be reached at kylefeldscher@annarbor.com or you can follow him on Twitter.
Comments
theTruth
Sun, Aug 18, 2013 : 4:25 p.m.
To CS there is definitely a "insider network" at the 15th District Court. Keith Zeisloft allowed a lead Deputy Court Clerks daughter Jump in as a permanent employee (over Court Clerk II's who had been there for years) and become a Court Clerk III in probation because she was pregnant and needed health insurance. Julie Creal had children of life long friends get jobs there. Two sets of husbands and wives work/ have worked at 15th District Court. AAPD's wife worked in Civil...the list goes on and on over the years. The public and employees were never equal contenders for the positions.
Fredric
Sat, Aug 17, 2013 : 2 p.m.
If this had been someone other than an Attorney, would they have done the same thing. I don't think so. They have become a class all their own, just like the elected officials.
Colorado Sun
Sat, Aug 17, 2013 : 10:25 p.m.
There is an "insider network" that runs the court system. That's how Mr. Nassif got a photo sitting on the bench of a certain circuit court judge he made a donation to.
Widow Wadman
Sat, Aug 17, 2013 : 12:19 p.m.
Excellent reporting, Kyle. Look forward to hearing more about this case.
Colorado Sun
Fri, Aug 16, 2013 : 2 a.m.
Cedric Simpson is expected to run for the vacancy to be created by the Donald Shelton retirement. Expect him to be "posturing" knowing to the intensive local press coverage of this case. The Michigan Code of Criminal Procedure requires the District Court to afford an accused the opportunity of a preliminary examination in which the prosecution must present prima facie proofs of each element of the offense charged. Additionally the defendant is afforded an opportunity to discover the facts of the prosecution's case via cross-examination of the state's witnesses. This case has sent shock waves through the corridors of power at City Hall. Did Nassif's status as a minority play into the decision to charge him? What about his status as a City Hall insider? Did the AAPD dislike him due to his defense of criminal cases brought by the AAPD? Did Nassif hire a female defense attorney for political purposes? Did the prosecution "jump the gun" by filing rape charges without enough investigation?
Colorado Sun
Sat, Aug 17, 2013 : 10:23 p.m.
@lindor: Nader Nassif IS a minority - he is a Lebanese-American, as is his defense attorney, Mr.Simon. Detective Monroe, the lead investigator in this case earned some $126,000+ per annum recently due to huge amounts of overtime. Did the prospect of a time-consuming case influence his decision to seek a warrant request from the County Prosecutor? How does someone with "no connections" get an appointment to the DDA?
lindor
Fri, Aug 16, 2013 : 7:29 p.m.
Cedric Simpson is one of the toughest and most well respected district court judges. If you think there is going to be an posturing that is simply not true; he's just tough. Regarding your questions... Nassif was on the DDA but prior to that he had little to no connections in Ann Arbor, let alone downtown. Everyone wants to make this into a public official thing (granted he was on the DDA) but I think most people, including attorneys outside of the criminal defense world, wouldn't know him from Adam if he was walking down the street. He's not a minority and I think it is irrelevant whether the AAPD liked him or not. The prosecutor authorized charges based on an alleged victim's complaint, serious charges at that. I find it hard to believe that the prosecution would authorize charges that where penetration is an element if they did not in fact know that for sure, could be wrong though. Besides that the complaint contains little to no information regarding the alleged crime so any talk about jumping the gun is premature and would only be guessing.
Nicholas Urfe
Fri, Aug 16, 2013 : 1:12 a.m.
I wonder if any of the material they want to protect is even more invoices the law firm has not yet submitted to the city?
Nicholas Urfe
Sat, Aug 17, 2013 : 2:21 a.m.
I was just joking about that one. I thought the prospect of another million in unbilled invoices hidden in his apartment was pretty funny.
halflight
Fri, Aug 16, 2013 : 3:03 a.m.
Unlikely. Attorney-client privilege is invoked to protect the interests of the client, not the attorney. Unless the billings disclose confidences between Nassif and his clients (the criminal defendants he represented), there is no privilege. The City of Ann Arbor may pay the bill, but it is not Nassif's client.
Nicholas Urfe
Fri, Aug 16, 2013 : 1:11 a.m.
I wonder whether all of the evidence they want to protect is traditional written case material, or if it extends to other types of physical evidence?
Nicholas Urfe
Sat, Aug 17, 2013 : 2:20 a.m.
Thanks. Very helpful.
halflight
Fri, Aug 16, 2013 : 3:18 a.m.
Physical evidence is not subject to attorney-client privilege. The privilege extends only to information given to the attorney by the client in confidence. So attorney's notes are privileged, but physical evidence like a weapon is not. To quote from the commentary of Michigan's Rules of Professional Conduct: " A lawyer must turn over evidence of a crime received during representation. It is not improper to introduce into evidence testimony that the items were seized from the office of defense counsel. People v Nash, 418 Mich 196; 341 NW2d 439 (1983)"
Billy
Thu, Aug 15, 2013 : 8:27 p.m.
"After hours of discussion in bench conferences and behind closed doors Thursday, a hearing was scheduled for Tuesday to work out evidentiary issues in the case against Nader Nassif." Gee...that doesn't sound like any kind of shady dealings now does it... This is not appropriate conduct for public officials.
The Eyes of Justice Team
Thu, Aug 15, 2013 : 8:04 p.m.
Mum is the word at City Hall today.....
The Eyes of Justice Team
Fri, Aug 16, 2013 : 8:25 p.m.
The Blinfold was left on Stephen Postema's desk....
Basic Bob
Thu, Aug 15, 2013 : 11:25 p.m.
Has Justice removed her blindfold?
Colorado Sun
Thu, Aug 15, 2013 : 10:46 p.m.
Mayor John Hieftje has termed the prosecution as a "tragedy" for all involved. Yeah, especially himself. Maybe he will vet out his prospective appointees more carefully in the future and not lavish upon their firms six-figure no-bid contracts. BTW, the Nader Nassif photo in your icon has gone viral - it was apparently lifted from a Facebook page. Nassif was a registered donor to Tim Connors in the last election.
An Arborigine
Thu, Aug 15, 2013 : 6:15 p.m.
Would a non-DDA, non-gov't contractor have the privilege of "hours of off-the-record" conferences?
halflight
Thu, Aug 15, 2013 : 10:25 p.m.
Well, I can speak as someone who has taken part in off-the-record bench conferences, that everyone involved is quite aware of what is and is not appropriate to discuss off the record. The judge and the prosecutor aren't about to let the defense attorneys keep substantive arguments off-the-record. Often what is discussed is a matter of logistics-- negotiating when and where the next official step will take place. It isn't particularly interesting or really relevant to the proceeding. Once the logistical issue is resolved, the substance of the agreement is put on the record. Another reason to take something off the record is to protect innocent and irrelevant third parties. The details from Kyle's report are sketchy, but apparently some client materials were taken by the police when Nassif was arrested. Nassif's clients have a right to attorney-client privilege, and that right isn't nullified by Nassif's arrest. If the defense attorney discussed the nature of the clients materials on the record, that might negatively impact Nassif's clients, even if they have no connection to Nassif's alleged crime. So the attorneys ask to go off the record. No conspiracy necessary.
Kyle Feldscher
Thu, Aug 15, 2013 : 10:02 p.m.
Well, InformationIsPower, I'm speaking from my experience spending more hours than I can count in courtrooms watching hearings, not as an expert by any means.
InformationisPower
Thu, Aug 15, 2013 : 9:52 p.m.
Yes they would! I love since this case has made headlines in Ann Arbor that everybody all of a sudden became legal experts even the journalists who are covering it!
An Arborigine
Thu, Aug 15, 2013 : 7:35 p.m.
Thank you Kyle.
Kyle Feldscher
Thu, Aug 15, 2013 : 7:21 p.m.
ARS - I agree, they happen often, but rarely to this extent and rarely for this long.
Are you serious?
Thu, Aug 15, 2013 : 7:05 p.m.
Nothing at all unusual about off-the-record conferences. Happens all the time.
seldon
Thu, Aug 15, 2013 : 6:50 p.m.
Likely, if they're also an attorney with good attorneys.