The chief judge of Macomb County Circuit Court has disqualified Judge Carl Marlinga from a controversial manslaughter case for his comments about the case upon receiving it.
Chied Judge James Biernat Jr. on Tuesday issued an opinion and order granting the recusal of Marlinga upon the request of attorney Joe Arnone, who is representing defendant Hatum Akrawi.
Marlinga last month questioned a lower-court judge's dismissal of the second-degree murder charge against Akrawi after viewing video of the incident shown on the local TV news.
Arnone accused Marlinga of bias, and the judge in turn denied his request for Marlinga to recuse himself. So he went the chief judge to do so, per procedure.
Arnone praised Biernat for his ruling following the filing of legal briefs by Arnone and Macomb prosecutors and Nov. 9 oral arguments.
“I applaud Judge Biernat for making the tough decision,” Arnone said.
The case will be reassigned to another judge in a “blind draw.”
A copy of the opinion was unavailable late Tuesday afternoon. Arnone said Tuesday he had not yet read the opinion.
Akrawi, 33, of Fraser, is charged for “sucker punching” Shawn Kubic in the jaw around Christmas last year at Kapones Sports Tavern. Kubic, 47, of St. Clair Shores, fell backward to the floor and died five days later.
Akrawi was originally charged with second-degree murder but that charge was dismissed in September by Judge Mark Fratarcangeli when he bound over the case from 40th District Court in St. Clair Shores to circuit court.
Second-degree murder is punishable by up to life in prison while manslaughter is punishable by up to 15 years.
The same day of the ruling Kubic's family and friends protested the dismissal of the murder charge outside the district court building in St. Clair Shores. They also later protested outside the county courthouse in Mount Clemens.
When the case went to circuit court Oct. 6, Marlinga refused to accept Akrawi’s guilty plea to manslaughter and a day later wrote in an opinion that he believed Fratarcangeli may have mistakenly dismissed the murder charge based on what he has read in media reports.
“If the evidence at the preliminary examination is consistent with media reports, it would appear to this court that the district court may have made a serious legal error in binding the matter over on the manslaughter charge, rather than second-degree murder,” Marlinga wrote. Marlinga says video of the incident “supplies sufficient evidence on all the elements necessary for bindover over on second-degree murder.”
He asked attorneys to respond to whether he legally could “correct plain error of the district court.”
Arnone then asked Marlinga to recuse himself for his comments based on information gleaned from outside the courtroom.
“The court’s conclusion that the defendant’s actions rise to such an offense (2nd-degree murder), without viewing any evidence governing law demonstrates a bias that cannot be ignored or cured,” Arnone wrote in a legal brief. “(Marlinga) has now cast doubt on the appearance of fairness in this matter. … Disqualification should be granted because the actions of Judge Marlinga clearly gives the appearance of impropriety.”
Arnone said that during oral arguments last week, Biernat discussed a jury instruction that prevents jurors from gaining any insight into the law or facts of a case from outside sources.
Arnone said the ruling demonstrates Macomb County courts are fair.
“The hard decisions they have to make, they’re not afraid to make,” he said. “This ruling exemplifies that. That’s why I practice here.”