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Criminal Appellate & Post-Conviction Services

Court of Appeals Holds Former Mayor Kilpatrick to His Words

Most Detroiters remember the scandal of former Mayor Kwame Kilpatrick’s book deal. After promising that “every cent” he earned would go to restitution, he authored a book with a complicated payment scheme designed to insure that his family received the proceeds for the book. Judge Groner of the Wayne County Circuit Court entered an escrow order requiring the payments to be deposited in an escrow account with the purpose of first satisfying Mr. Kilpatrick’s restitution obligations. If this book ultimately turned into a best seller, Mr. Kilpatrick’s family might have theoretically earned the remainder, but this book probably wasn’t going to reach that level of success.

Mr. Kilpatrick appealed to the Court of Appeals challenging the constitutionality of MCL 750.768 which served as the statutory basis for the order. The
Court of Appeals declined to pass on the constitutionality of the statute. The Court correctly noted that Courts do not pass on the constitutionality of statutes when there are other ways of deciding the issue. The Court remanded the matter on waiver theory.

Mr. Kilpatrick’s “every cent” quote was told to a newspaper reporter with Associated Press. The Court stated that this statement could be a waiver. I am particularly curious whether the statement was made in a courthouse proceeding or during an after-the-fact news interview. If the statement was made during an after-the-fact interview, this could present an interesting question concerning the extension of the waiver doctrine. The Court also stated that Mr. Kilpatrick’s attempts to structure the transaction so that he was not the beneficiary to the contract might have deprived him of standing to challenge the Court’s order.

The Court, however, while being highly skeptical of the mayor’s motives gave him a chance to prove that he wrote the book without a profit move in mind:

Additional concerns exist regarding substantive failures by all involved in this matter. First, the prosecutor failed to prove that Kilpatrick was to actually receive funds from the sale of the book. While it is logical, and consistent with Kilpatrick’s history of avoiding the disclosure of his true income and assets for use in paying the ordered restitution, to assume that he was to benefit financially from the publication of this book, there has been no such demonstration by the prosecutor. While it is highly doubtful that Kilpatrick engaged in this endeavor for purely altruistic reasons, there is no contract in evidence between Kilpatrick and any entity regarding the writing of this book or the assignment of his rights.

Mayor Kilpatrick will have to convince a very skeptical audience, but he has (as the old saying goes) “lived to fight another day.” In the battle of attrition that unfortunately are part of modern criminal appellate practice, this is a victory (of sorts). To read the Detroit Free Press article on this case, click here.