Nicholas Skaluba

ALPENA–Attorneys for convicted sex offender Nicholas Skaluba appeared in court Friday to argue that Skaluba should be given a new trial because Alpena County Prosecutor Ed Black had “crossed the line” into misconduct at trial.

Attorneys for Thompson Hein, originally Skaluba’s co-defendant, also appeared in court on Friday, but details of that closed hearing were not made public because Hein’s records are sealed as part of his plea deal with prosecutors.

Appearing via videoconference, Judge George Mertz of the 46th Circuit Court said he had intended to rule at Friday’s hearing on Skaluba’s appeal of his June conviction for drugging and raping a pair of girls during a series of July 2016 parties.

Only a few minutes into the hearing, however, Mertz stopped the proceedings because Skaluba was absent. Neither the defense nor prosecutors had requested that Skaluba, who is currently incarcerated at the Earnest C. Brooks Correctional Facility in Muskegon Heights, be present for the hearing or waive his right to be present.

Without saying what he might decide, Mertz said that proceeding without the defendant’s permission could end up in an overturned decision, wasting taxpayer’s money.

Skaluba was sentenced to 16 years to life in prison. Mertz presided over Skaluba’s trial after 26th Circuit Court Judge Michael Mack recused himself,

Citing Michigan Court of Appeals cases in which trial court decisions were overturned, defense attorney Matt Wojda said in his 23-page motion for a new trial that Alpena County Prosecutor Ed Black “crossed the line from sound judgement to prosecutorial misconduct” by appealing to the jury’s emotions and making prejudicial statements.

The motion alleges that the prosecutor knowingly made a false statement about a piece of evidence discussed by a witness, personally attacked defense counsel, and called for the jury to ignore the evidence and convict based on their prejudice and bias.

The emotions of the jury were improperly tapped during closing statements, the defense said, when Black asked them to convict as a part of their civic duty. According to the defense, the statement by Black was an attempt to stir up latent unrest in the community generated after Hein’s sentencing in October 2018, which many saw as too light and which prompted a protest rally in downtown Alpena.

Hein, originally charged with indecent exposure and criminal sexual conduct in the third and fourth degree, pleaded no-contest to felonious assault and was sentenced to 90 days in jail — to be served on weekends and breaks from college — and 36 months of probation. He also was granted Holmes Youthful Trainee Act protection, meaning his case is sealed from the public and his criminal record remains clean as long as he abides by the terms of his probation. That is why Friday’s hearing in Hein’s case was closed to the public.

In Skaluba’s appeal, the defense cited Black’s closing argument, in which he told the jury, “you have an opportunity to set an example, not only for (the victim), but for all the victims.”

The News does not identify victims of sexual assault.

The motion for retrial contended that, through such statements, the prosecution asked the jury to convict not on the basis of the defendant’s guilt but because of a need to protect the community from the crimes Skaluba was accused of committing. Wojda said in his motion that the prosecution “advocated for mob justice.”

Black’s appeal to the emotions of the jury was appropriate, the prosecution claimed in a written response, as “a request for the jurors to use their common sense and everyday experience when viewing those emotions.”

Black denied personally attacking the defense attorneys or questioning their truthfulness. Conversely, the response pointed to the defendant’s “putting the prosecuting attorney on trial,” making what it characterized as false statements about plea deals made with other defendants “with the hope of seizing on any potential animus the community may have towards the prosecution” for the sentence of Hein in 2018.

The prosecutor’s closing argument, in which Black referenced the jury’s civic duty, was not a call to “ignore the evidence and convict based on prejudices,” but to find the defendant guilty based on what it called “consistent and overwhelming” evidence, the response said.

A new hearing will be scheduled soon, at which time Mertz plans to make a ruling on the motion.

Julie Riddle can be reached at 989-358-5693, jriddle@thealpenanews.com or on Twitter @jriddleX.