Appeals court denies Gomery appeal

Gomery

TRAVERSE CITY — A former attorney hopes to bring his murder-for-hire case to the Michigan Supreme Court after appeals court judges denied his attempt to appeal his conviction.

Clarence Gomery, 63, pleaded guilty in 2015 to solicitation of murder in a plot to have another attorney, Christopher Cooke, killed following a heated civil case that left Gomery with hundreds of thousands of dollars in sanctions.

Thirteenth Circuit Court Judge Kevin Elsenheimer denied Gomery’s appeal attempt in January, leading Gomery and his attorney, David Rudoi to take the case to the Michigan Court of Appeals.

Appeals court judges denied Gomery’s request for leave to appeal the conviction in a two-sentence order issued Nov. 14. Gomery and his attorney simply “failed to establish” that Elsenheimer “erred in denying” Gomery’s motion to allow an appeal, according to the order.

“They’re wrong, they’re completely wrong,” Rudoi said. “There is clear error.”

He will continue to make the same arguments to the state Supreme Court when making his plea for a new trial.

Chief among Rudoi’s arguments will be a recantation made that suggests Cooke blackmailed another man, Dale Fisher, to frame Gomery.

Fisher, a dock installer, claimed in July 2014 that Gomery offered him $20,000 to kill rival attorney Cooke. Fisher and Gomery could be heard discussing the plans in a secret recording, leading to Gomery’s arrest.

Gomery admitted to the plot in February 2015 after accepting a plea deal. This came after a civil case that ended with Gomery facing more than $300,000 in sanctions, prompting him to file for bankruptcy, a move Cooke fought.

Then Fisher changed his testimony Feb. 9, 2017, a day before he received a mandatory 25-year-sentence stemming from a sex crime case. He claimed Cooke paid and blackmailed him over the sex crime accusations to frame Gomery.

In the appeals court case, Rudoi wrote that Cooke blackmailed Fisher over the sex crime accusations to secure another shot at claiming the $300,000. Cooke missed a deadline to “object to the discharge debts” during Gomery’s bankruptcy proceedings.

But by having Gomery “locked up,” the former attorney would fail to make payments and be forced to convert his bankruptcy to Chapter 7, Rudoi wrote.

Elsenheimer previously called Fisher’s new story “implausible,” noting his history with Cooke and motive to fabricate his testimony.

A judge is not responsible for deciding whether he or she believes the testimony, rather, their task is to determine whether a jury could find it credible, Rudoi said. He suggested the changed testimony is credible and backed up by additional evidence.

Cooke supported Elsenheimer and the appeals court decision to reject the case.

“It’s the same nonsense (Gomery has) been trying to do since this case started,” he said. “This is the fourth or fifth time he’s tried to run this same pack of lies.”

Dennis Swain, who previously represented Gomery, cited Fisher’s new testimony and argued his plea was “unknowing” and “involuntary,” additionally claiming Gomery’s previous attorney, Frank Stanley, was ineffective.

Gomery originally entered the guilty plea after prosecutors and Stanley came to a 42-month deal, according to appeals documents. He claimed Stanley told him about the deal and informed him of the court’s “sentencing policy” — Gomery would face a harsher sentence if he took the case to trial, rather than entering a plea.

Stanley did not tell Gomery that 13th Circuit Court Judge Philip Rodgers would not go along with the 42-month agreement after learning Gomery helped inmates with motions and briefs. Gomery received a 72-month prison sentence instead.

Grand Traverse County Prosecutor Bob Cooney previously denied the existence of a 42-month deal. He could not be reached for comment.

Rudoi continues to draft a state supreme court brief that outlines case findings and includes an argument for why he believes supreme court justices should take a look.

The case is of “significant public interest,” Rudoi said, because it features major players and former public officials; involves significant legal precedence; and includes a defendant who has a right to take his case to trial.

He expects to file the state Supreme Court brief before Jan. 8. Rudoi hopes to see justices take up the case, he did not immediately know what will come next if they don’t or if they rule against him and Gomery. He didn't rule out taking it to the U.S. Supreme Court.

“I’m kind of like (New England Patriots Coach Bill) Belichick: Let’s worry about this next game,” Rudoi said. “I’m not looking ahead to the Super Bowl.”