TIM GRAY’S CASE GOES BACK TO MICHIGAN COURT OF APPEALS

ST. JOSEPH – Former Southwestern Michigan Community Ambulance Service Executive Director Tim Gray’s appeal of his 2016 embezzlement conviction is going back to the Michigan Court of Appeals after Berrien County Trial Judge Angela Pasula denied his request for a new trial.

Gray’s appellate attorney, Timothy Doman said the case will now go back to the Michigan Court of Appeals to rule on their request for a new trial and other issues. “We respectfully disagree with Judge Pasula’s decision and look forward to pursuing the case in the Court of Appeals,” he said.

A jury found Gray guilty of embezzlement after a two-week trial in November 2016. They concluded that he took excessive payments totaling more than $50,000 for paid time off, holiday pay, dental and vision reimbursement and short-term disability from 2009 to 2014.

Gray appealed the conviction to the Michigan Court of Appeals. The Court of Appeals remanded the case back to the Berrien County Trial Court in December to hear Gray’s arguments for a new trial.

Judge Pasula, who presided over the two-week trial and then sentenced Gray to jail and probation in early 2017, received written briefs from Doman and Berrien County Assistant Prosecutor Gerald Vigansky before issuing her opinion in late January.

Pasula ruled that Gray failed to establish that the trial verdict was “against the great weight of the evidence.” “No ground has been set forth to support appellate reversal or finding of miscarriage of justice in the jury’s verdict,” she concluded. “The verdict in this case cannot be said to be against the great weight of the evidence and should therefore stand.”

Doman had specifically taken issue with the testimony of forensic auditor David Marshall, saying that Marshall was inexperienced and made mistakes including never reviewing a SMCAS budget, past audits or interviewing Gray.

Doman portrayed Gray as a “workaholic” who had devoted much of his life to SMCAS and did not have an intent to defraud the service. He stated that Gray was a dedicated paramedic who was ill equipped to run the organization.

Pasula said the four standards set by the Michigan Supreme Court for reversing a verdict and granting a new trial have been met. Those standards are findings contrary to physical facts or law, testimony that is patently incredible or defies physical realities, testimony so inherently implausible that it could not be believed by a reasonable juror and testimony that has been seriously impeached.

She noted that the jury had ample opportunity to hear the testimony and judge the credibility of not only Marshall, but Gray and the other witnesses. She pointed out that trial attorney Michael Conkright raised concerns about Marshall’s conclusions during six hours of cross-examination over two days.

“Defendant disagrees with the methodologies utilized by Marshall in his forensic accounting, and asserts that Marshall could have assessed the facts of the case differently,” Pasula wrote. “As the People argue however, the jury was made well aware of Defendant’s disagreement with Marshall’s findings as well as any inconsistencies or discrepancies therein.”

Pasula noted that it’s not a judge’s job to become a “thirteenth juror” and second guess the jury’s verdict. She quoted a Michigan Supreme Court decision where justices stated that “discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.”

She added that the Michigan Supreme Court has ruled that motions for a new trial on the weight of the evidence based solely on witness credibility are not favored.

By DEBRA HAIGHT

BCR Correspondent