Aaron Mienkwic

Aaron Mienkwic, at left, is seen during his February 2019 sentencing in 35th Circuit Court in Corunna.

LANSING — A three-judge panel of the Michigan Court of Appeals Thursday ordered a new trial for Aaron Mienkwic after ruling unanimously that Shiawassee County Prosecutor Scott Koerner committed prosecutorial misconduct by failing to disclose his work as defense counsel for Mienkwic’s co-defendant before prosecuting Mienkwic.

Mienkwic, 36, was convicted by a jury in December 2018 of two felony counts of first-degree retail fraud, receiving/concealing stolen property ($1,000-$20,000) and possession of heroin. He was acquitted of fentanyl possession.

He was eventually sentenced to a minimum of six years, four months in prison by 35th Circuit Court Judge Matthew Stewart in February 2019.

The appeals case was heard before Judges P.J. Swartzle, Ronayne Krause and JJ Rick, who expressed astonishment in their opinion that Koerner had represented Mienkwic’s co-defendant as a defense attorney Kyle Tower during his own felony trial for retail fraud and conspiracy to commit first-degree retail fraud.

Tower pleaded guilty to to the charges prior to Mienkwic’s trial. Koerner advocated for Tower to be admitted into Genesee County’s Drug Court program.

According to the appeals court opinion, Koerner joined the Shiawassee County Prosecutor’s Office between Tower’s case and Mienkwic’s trial, and prosecuted the Mienkwic case at trial, earning a conviction. Tower testified against Mienkwic during his trial.

Thursday’s opinion also stated that the Shiawassee County Public Defender’s Office was never informed Koerner had acted as defense counsel for Tower. The opinion states the failure to disclose that fact represents a conflict of interest.

However, Koerner provided an affidavit that states he recalls having a discussion with an attorney from the Public Defender’s Office in which he disclosed he had been Tower’s defense attorney.

“I was new to the Prosecutor’s Office, coming from the defense bar,” Koerner said Friday.

“I recall having a discussion prior to trial about me representing Kyle Tower. I would never do anything to jeopardize a trial.”

The justices, in their questioning of the state’s lawyer during the appeals case, said it was surprising and troubling that there was no record in the trial transcript or documentation that Koerner had disclosed such a conflict.

“Koerner was obligated to decline the matter altogether,” the justices said. “We therefore agree that defendant is entitled to a new trial. However, for the purpose of avoiding any double jeopardy issues, we nevertheless also consider defendant’s sufficiency of the evidence argument and conclude that, although the trial was impermissibly tainted by Koerner’s misconduct, the evidence would have been sufficient to support the jury’s verdict.”

The opinion states other prosecuting attorneys were available to prosecute Mienkwic’s case, and Koerner’s conduct was “both improper and appears, accurately or not, to be exploitation of an unfair advantage for the sake of a conviction rather than in furtherance of justice… Koerner should have realized that his participation was unethical, impermissible, and offensive to maintaining the appearance of integrity and fairness.”

The appeals court calls Mienkwic’s trial “clearly unfair and improper,” and “the egregiousness of Koerner’s ethical violation fundamentally undermines the integrity of defendant’s trial and necessitates reversal.”

The case will be remanded to Shiawassee County for retrial, and the appeals court ordered that the Shiawassee County Prosecutor’s Office be disqualified, and that the case be heard by a different judge.

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