When a U.S. District Court jury found Michigan Supreme Court Justice John B. Swainson guilty of three counts of lying to a federal grand jury last November 3, that was enough for the Michigan State Bar Association- whose President, George E. Bushnell Jr., immediately called for Swainson's resignation.
It was also enough for the Detroit Free Press, which asked that Swainson quit in an editorial the next morning, and for the News as well, which followed suit on November 6.
Governor William MiIIiken , who had been keeping a low profile, broke this silence by expressing his concern for the ntegrity of the Supreme Court.
Swainson, the former Democratic Governor who had been elected to the high court in 1970, surprised them all by announcing his intention to remain on the Court, his pay in escrow, until his appeals were exhausted.
Only four days later, however, the 50-year-old judge changed his mind, referring to an obscure 1955 statute providing for the removal of any Supreme Court justice convicted of an "infamous crime."
Most observers who cared to be quoted pronounced Swainson, a political fast-riser who outpolled former Governor G. Mennen Williams in the Supreme Court race, a political corpse.
The Michigan Trial Lawyers Association and the Wolverine Bar Association (Michigan's black lawyers' organiation) were the only voices raised in protest. Both urged Swainson to remain on the bench until his appeals were completed.
Since then, many attorneys and prominent state Democrats have privately voiced their feeling that John Swainson was, in fact, framed-in a patently political prosecution designed to remove Swainson from contention for the U.S. Senate seat of the retiring Philip Hart.
Swainson himself claimed, upon hearing the verdict, that he had been victimized by a "misuse of the grand jury system."
Detroit's dailies, having reaped their quota of headlines from the Swainson case, have failed to explore these charges. The SUN was the only Detroit paper represented at a February 8 Ann Arbor fund-raiser to help cover the legal expenses of Swainson's appeal and to discuss the issues.
What the SUN's Marty Porter heard at the event was more than enough to arouse-our curiosity, and last week, Swainson and his attorneys, Konrad Kohl and Bruce Leitman, consented to an in-depth interview to outline, for the first time, their side of the case.
To provide a context for their telling, and often, explosive arguments, permit us to review briefly at this point the careers of John B. Swainson and his accuser, professional thief John J. Whalen.
Swainson's life until 1975 reads like a classic all-American success story. An Eagle Scout and high school football star, Swainson lost both legs in a World War II land mine explosion. But he won a seat in the Michigan Senate in 1954, and in his second term became the Democratic floor leader.
In 1958, Swainson was elected Lieutenant Governor, and two years later, he replaced the perennial "Soapy" Williams in the state's highest office.
Swainson lost the race for another term and returned to legal practice in Detroit. Three years later, he became a Wayne County Circuit Judge, a position he held until vaulting back into political prominence with his successful Supreme Court campaign.
When Swainson was still in the State Senate, an 11-year-old named John Whalen was on his way to the Wayne County Training School, at the beginning of a long criminal career.
On March 20, 1969, when Swainson was on the Circuit Court bench, Whalen was burglarizing an Adrian jewelry store-an act that would haunt him for years and would eventually lead him to the Detroit courtroom where he faced John B. Swainson.
Less than a month after he was convicted and sentenced to eight to ten years in prison, his lawyer, Nick Arvan, was found murdered gangland-style in a field in Macomb County.
After a brief spell at Jackson Prison, Whalen was freed on an appeal bond posted by Detroit bondsman Harvey Wish.
Today, John Swainson rues the day he met Harvey Wish. Then, Wish was a casual friend Swainson knew from the courtroom and from local Democratic gatherings, later sornewhat of a street consultant when the judge needecl to understand more about his son 's problems with narcotics.
Whalen was a tough case for Wish. He acted as an intermediary with Wish for his colleagues in crime, who were numerous, active, and professional. Wish was nervous about the shadow of Arvan's murder, and had more cause to worry later, as a Whalen colleague demonstrated a facility for escaping imprisonment on three separate occasions.
Whalen got into trouble again in December 1971, when he was indicted by a federal grand jury for possession of counterfeit money. Although he pled guilty, Whalen was let off with probation after he led police to the hideout of escaped comrade Christopher Glumb.
The 1969 burglary conviction still haunted Whalen, however, and he was responsive when Wish began suggesting, sometime in 1972, that for $20,000 or so, he could use his alleged influence with Swainson to get Whalen a new trial.
Whalen, as he later admitted in court, began committing more burglaries to raise the money. Meanwhile, covering himself from all sides, he began informing for the FBI, which wired him for sound on the occasion of 27 different contacts with his bondsman and co-conspirator.
Wish's primary concern, as his attorney, Murray Chodak, later explained in court, was to keep from getting stuck if the unpredictable Whalen should decide to jump bond. Robert Pieniak explained the scam in a December 1975 SUN article:
"Wish performed a scam used by many bondsmen and lawyers to exploit their clients-the 'fix.' Whether a fix is real doesn't matter to the desperate defendant. The fact is that a large sum of money is needed for a defendant te remain 'on the streets.'
"A youth from a poor family arrested by mistake might remain incarcerated for months before being found innocent. Yet a successful thief or killer can run on the streets freely because he or she has the means to obtain large sums of cash. Lawyers and bondsmen never ask how the money is obtained. In fact, they would rather not know."
"If the defendant is placed on probation, the guy has made himself a thousand bucks. If he happens to be incarcerated, the guy goes back and says, 'Well, he double
continued on page 25
Of all the untoward aspects of the Swainson case, perhaps the most glaring is the government's failure to interview other Supreme Court justices until Chief Justice Kavanagh's death.
WAS JOHN SWAINSON FRAMED?
continued from page 5
"I recall the time, when I was Governor, there was a man they were pretty sure was telling some immigrant people he could get them visas. Every time I came on in the scene in a political campaign situation, he'd run up, shake my hand, pat me on the back, and then go back to these people and say, 'Okay, it's all taken care of.'"
John Whalen, informing for the FBI by day and thieving by night, did come up with over $20,000 for Wish over the next year-although, curiously, he was never wired for sound on any of the four occasions on which money supposedly changed hands, and the government failed to provide marked bills for the transactions. For nsurance, the FBI added physical surveillance of Wish to the program.
In October 1973, the Supreme Court unanimously voted to hear Whalen's case, and two months later, awarded him a new trial. Whalen was subsequently convicted a second time in Lenawee County on the burglary charge.
Whalen was picked up again in March 1975 in a Romulus shopping center. During the Swainson trial, he gave police information leading to the arrest of several members of his burglary ring, which is suspected of some 400 jobs in the Detroit area involving some $4.5 million in stolen merchandise. Two weeks later, Whalen's well-appointed St. Clair Shores home was destroyed by an explosion, and in December, the star witness was abducted and tortured for several hours.
Whalen is now believed to be in an unspecified federal penal facility, protected by a new identity.
On April 16, 1975, a scant thirty days after the death of Chief Supreme Court Justice Thomas M. Kavanagh, John B. Swainson was called before a federal grand jury in Detroit to "explain" the Whalen affair. The press immediately reported that the judge was under investigation for bribery and conspiracy, and Prosecutor Robert Ozer, head of the federal Organized Crime Task Force here, was soon quoted as promising "an indictment in two weeks" and describing the government's case as "airtight."
Ozer, somewhat notorious in law-enforcement circles for his outspoken support of "prosecution by terrorism," later admitted that the bribery case was "totally circumstantial" following Swainson's acquittal on those charges. He also took severe criticism from the legal community for his pre-trial statements implicating, without evidence or indictments, at least one other Michigan judge in bribery and charging that justice in the state was "for sale on the installment plan."
When the SUN sought Ozer's comment on the Swainson case last week, we were told that he "no longer takes press calls."
On May 19, Swainson was asked in grand jury session if he recalled making two telephone calls to Harvey Wish and receiving a television set from Wish in October 1972.
"I tried to be very cooperative," recalls Swainson, "but I was shocked when I was asked these very specific questions concerning events that had occurred two and a half years prior to my appearance before that grand jury. I said I had no recollection, I didn't remember; maybe I did make this call, I don't know."
"It was a memory test, not a search for truth," says attorney Kohl. "It became abundantiy clear to us between this appearance and our return on May 21 that the government must have had telephone logs. So we had no choice but to go back in and say, 'If you have a record of it, the calis must have occurred."
The television set, as it turned out, was totally unrelated to the Whalen case. Robert Auer, a friend of Swainson, had given the set to Wish to deliver to the judge in return for a friendly phone call to a Detroit Common Pleas Judge on behalf of Auer's daughter, picked up on a drunken and disorderly charge. Nevertheless, Swainson's failure to remember the unsolicited gift stood with the two telephone calls as the basis of the perjury charges of which Swainson was finally convicted and driven from office.
The calls, according to Swainson, entailed a 60-second conversation with Wish concerning the proper procedure in applying for a Supreme Court rehearing and a 20-second call to inform Wish of the Court's decision to grant that rehearing.
Swainson was charged by Ozer under a 1955 perjury statute, ignoring a 1970 statute which provides for recantation of grand jury testimony without penalty in cases of failure to recollect, as opposed to willful misrepresentation of fact.
Kohl argued in a post-trial motion that Swainson's acquittal on the bribery-conspiracy charges disproved the thrust of the government's case, and thus justified the voiding of the perjury convictions. All his
continued on page 25
"The grand jury has become the tooi of the prosecutor. There's no such thing as a secret grand jury. f the grand jury operated as it should, the prosecution against me would never have been brought."
WAS JOHN SWAINSON FRAMED?
post-trial motions, however, were dismissed without benefit of oral argument in a brief telephone conversation with Visiting U.S. District Judge Cari B. Rubin of Cincinnati.
Of all the untoward aspects of the Swainson case, perhaps the most glaring is the two-and-a-half-year gap between the alleged bribery-conspiracy and the convening of the grand jury-with no attempt to interview other Supreme Court justices until after Chief Justice Kavanagh's death.
"As a matter of simple common sense and decency," exclaims Kohl, "if we were of the belief or suspicion that John Swainson attempted to influence his fellow justices on the Whalen matter, what would any of us do but go to the members of the Court and say, 'Did John Swainson make you a bribe? Did he try to influence you?'
"The Chief Justice, specifically, is the one-as the chief administrative officer of the Court-who determines what cases will be on their docket. Why, from August of 1972 until March 19, 1975, when the Chief Justice died, was there no effort to go to him and say, 'Why was the Whalen case put back on your docket?'"
That's one of many questions that Swainson, Kohl, and Leitman will be asking the U.S. Court of Appeals in Cincinnati to deal with later this year. And if Swainson wins vindication-and many observers believe he will-don't count him out of Michigan public affairs. If John Swainson ever returns to the bench, he's likely to have quite a bit to say about the present grand jury system.
"The purpose of the grand jury is to seek out truth," he says. "If the grand jury operated as it should, I don't think the prosecution against me would have ever been brought. It has become a tool of the prosecutor.
"In this day of modern technology and media, there is no such thing as a secret grand jury. If I leave the grand jury room to consult with my attorney in the corridor, the television cameras go on. The 23 people brought in as a grand jury are also subjected to the media.
"In addition, the prosecutor-without any magistrate present-decides what questions to ask and what evidence to bring before the grand jury.
"The federal grand jury system should provide for a hearing on probable cause after an indictment is returned, as we do in Michigan. I believe if I had been given such a hearing, we never would have gone to trial."