Judge weighs whether Speaker Cotter can be subpoenaed in Courser, Gamrat criminal cases

Posted at 5:06 PM, Apr 19, 2016
and last updated 2016-04-19 17:06:30-04

LANSING, Mich. — Former Michigan lawmakers Cindy Gamrat and Todd Courser were back in court Tuesday as their criminal cases move forward.

The key to Tuesday's arguments between the prosecution and defense is whether House Speaker Kevin Cotter can be subpoenaed to testify in these cases.

Argument revolved statute that writes a legislator is not subject to a subpoena for any matter involving statements made by the legislator regarding his or her duty.

The prosecution argued that Cotter has immunity to avoid testifying, but the defense said Cotter threw out that privilege as soon as he spoke with Michigan State Police and the prosecution in these cases.

Judge Hugh Clarke cited case law dating back to 1935 discussing legislator immunity not applying in a criminal case. The defense agrees stating Gamrat and Courser deserve due process.

“[Cotter] can’t selectively decide to talk to the prosecution one day and refuse to talk to us, and then refuse to come and give testimony," said Courser's Attorney Matthew Deperno. "I think it’s pretty clear they waived that privilege.”

The prosecution argued: "What they’re asking, with all due respect in this court, is for you [Judge Clarke] to violate separation of power. Is for you to interject your authority into the criminal affairs of the legislature and to reach out and yank the Speaker out and to bring him over in this court and hold his testimony.”

Judge Clarke weighed in several times including an exchange with the prosecutor asking whether this situation, originating from the extramarital affair between Courser and Gamrat, is actually about qualification versus misconduct in office.

“Some of this has to do with what I would term ‘non-legislative behavior,’ and therefore, what does that have to do with their qualification if for example the parties were alleged to be having extramarital affair, what’s that got to do with their qualification?" questioned Judge Clarke.

"My guess is, with all due respect to the legislature, you probably have to get rid of half of them over there.”

The defense said bottom line: the codefendants have the right to confront their accusers.

“I feel like we’re just wasting tax-payer money with this criminal prosecution," said Gamrat's Attorney Michael Nichols. "We need to let this scab finally heal over, and let, at least for Cindy Gamrat, get on with her life and move on, and get on with the business at hand for the taxpayers."

“The first woman in Michigan history to be expelled from the House on what little they had, without doing a thorough investigation. Now she should get the opportunity to confront her accusers, bring them to court, and subject them to the same cross-examination that any other citizen of the United States charged in a criminal case would and should have.” 

The former state representatives face several counts of misconduct in office for trying to hide an extramarital affair using state resources. Courser also faces a felony perjury charge for allegedly lying under oath at a House committee hearing.

The preliminary exam is scheduled May 25. Stay with FOX 17 for the latest developments.