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Judge denies request to step down

July 27, 2012
By GARRETT NEESE - DMG writer ( , The Daily Mining Gazette

EAGLE RIVER - 97th District Court Judge Mark Wisti denied a request Thursday to replace him as judge in a Keweenaw County case, and scheduled the next hearing for four weeks to accommodate a state review of the matter.

David Simons, 38, was allegedly driving in November during a fatal accident that killed his friend Jeffrey Brusso of Allouez Township. Police found Simons at his home in Calumet about two-and-a-half hours later.

Simons is charged with leaving the scene of an accident causing death, a 15-year felony.

Article Photos

Garrett Neese/Daily Mining Gazette
David Simons is seen with his attorney Nicholas Daavettila in 97th District Court Wednesday. Daavettila’s request to Wisti that a new judge be used in the case was denied by Wisti Thursday, although the state will review the matter.

Wisti referred the matter to the State Court Administrator for another judge to review. If Wisti is disqualified, another judge should be available within four weeks, he said.

Nicholas Daavettila, attorney for David Simons of Calumet, pointed to comments made by Wisti at Simons' preliminary hearing indicating a possible bias against his client.

Wisti said granting Daavettila's motion would set a precedent requiring any judge who reviewed bond factors and found the defendant a danger to the community to dismiss themselves.

"Frankly, that's preposterous," he said.

At the preliminary hearing last month, Wisti denied Daavettila's request for a bond reduction. Wisti denied the requests, pointing to several drunk-driving convictions in Simons' past.

Daavettila mentioned Wisti's comments that Simons was a danger to the community. He also brought up comments Wisti had made about conversations with his brother where they had said something like this was "a matter of time." Wisti's brother had represented Simons, although after Wisti was actively working at the firm, Wisti said.

Daavettila cited the standard for disqualification in Michigan: "That a judge should not allow family, social or other relationships to influence judicial conduct or judgment."

"The court's statement at the last hearing indicates that conversations were held with the court's brother, who is obviously an attorney practicing in Hancock, and that those conversations have led the court to have an opinion as to the character of Mr. Simons and the likelihood that Mr. Simons is responsible for what he's charged with," he said. "It's our position that disqualification is warranted because it's not actually the showing of bias that's required, but the showing of the appearance of bias."

County Prosecuting Attorney Donna Jaaskelainen said upon reviewing the transcript, it appeared the court had methodically gone through the court rule for reduction of bond and weighed the different factors of the case.

Wisti's comments don't differ much from any comments made to Simons in previous court appearances, Jaaskelainen said.

"Any judge that has sentenced Mr. Simons previously has told him that drinking will kill you, drinking and driving will not only kill you, but could kill other people," she said.

But Wisti said his comments shouldn't be construed as bias in the case.

"There is a difference between the court's perception of Mr. Simons' guilt in this matter, and the perception of Mr. Simons' general dangerousness to the community," he said.

"The fact that I find Mr. Simons dangerous to the community - which I do and continue to find Mr. Simons dangerous to the community - is based on his past criminal record, and his repeated pattern of violating the criminal laws of the state of Michigan in regard to drinking and driving."



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