A ninety-six page Request For Appointment Of Master was recently filed by the Judicial Tenure Commission with the Michigan Supreme Court detailing 21 instances of claimed misconduct by Lapeer County Circuit Court Judge Byron Konschuh. It is the latest in a series of judicial events emanating from Judge Konschuh’s alleged conduct while he served as this County’s Prosecuting Attorney, the details of which have been recounted in print ad nauseam. What has not received much publicity is how another former prosecuting attorney and a sitting circuit court judge in a neighboring county, who was similarly criminally charged while holding public office, responded to that life changing event. The contrast is stunning. Approximately 15 years ago, then Macomb County Prosecuting Attorney Carl Marlinga was charged with five counts of public corruption by federal prosecutors (bribery, wire fraud, lying to the Federal Election Commission and violating federal campaign finance laws) after he was accused of helping a convicted rapist obtain a new trial in exchange for campaign contributions. In September of 2006, a United States District Court jury rendered a verdict of ‘not guilty’ on all of the counts. After the verdict was announced, Mr. Marlinga (as reported by the South Bend Tribune newspaper) told The Detroit News that he did what he thought was right and went on to state: “My conscience is absolutely clear. I am not bitter, (but) the emotional cost is something you cannot possibly imagine. It was an appalling insult. I never can quite get over it.” Mr. Marlinga did not institute litigation against his accusers or those who testified against him. Instead, he entered the private practice of law and worked with the University of Michigan Law School’s Innocence Project. In November of 2012, Mr. Marlinga was elected to the position of Macomb County Probate Court Judge and in 2016, he was elected to serve on the Macomb County Circuit Court bench. In addition to his current judicial duties, Judge Marlinga authors a law review quality column entitled “Some Evidence” that appears in Bar Briefs, a monthly magazine published by the Macomb County Bar Association.
Judge Marlinga has no qualms about discussing his experience as a criminal defendant. In a letter published in Bar Briefs’ November 2018 issue, he wrote:
“As one who has suffered the emotional agony of being wrongfully accused of a crime, I have a unique, personal point of view. I was saved from even considering a plea bargain by the fact that I was a lawyer. Under my ethical obligations as an attorney, I could not stand before a judge in open court and lie in order to avoid a trial and possible prison sentence. Many defendants who do not have that ethical obligation or who lack confidence in the system may find a plea bargain too difficult to pass up. Defense attorneys (and judges and prosecutors) must remember that not only is there a presumption of innocence; the reality is that some real but unknown number of criminal defendants are actually innocent.”
It is amazing how differently these two individuals from neighboring counties with similar public service backgrounds have tackled the emotional agony associated with being subjected to a criminal prosecution. Perhaps Robert Frost explains it best: “Two roads diverged in a wood, and I,
“I took the one less traveled by,
“And that has made all the difference.” (The Road Not Taken). Respectfully,
—Eric Flinn
