One of the more pivotal races to be decided in the November 8th general election is the 10th Circuit Judicial race between Saginaw County Assistant Prosecutor Paul Fehrman and attorney Andre Borrello. One of these candidates will replace outgoing Saginaw County Circuit Judge Fred L. Borchard, who’s final six-year terms expires on January 1st. Because he turns 70 two months before the November election, he cannot run for re-election due to Michigan’s mandatory retirement age of 70 for judges. Borchard has served on the bench since 1999.
Paul Fehrman graduated from the University of Detroit School of Law in 1983, was admitted to the State Bar of Michigan, and received a presidential commission as an officer in the United States Navy, Judge Advocate General's Corps. His assignments included duty as legal advisor to Commander Naval Surface Force, U.S. Pacific Fleet, trial counsel at the Naval Legal Service Office, San Diego, and legal advisor to Commander Cruiser Destroyer Group Three, embarked in the USS Enterprise. “My Navy trial counsel position involved daily courtroom appearances in jury and bench trials and following four-years active duty, I completed eight years reserve duty and attained the rank of lieutenant commander,” he adds.
“Following my Navy active duty, I was law clerk to United States Magistrate Curtis McKee in the U.S. District Court for Southern California where I principally worked on the court's civil docket. After my two-year judicial clerkship, I worked for two years as a deputy public defender for San Diego County providing criminal defense to indigent clients. As a deputy public defender I defended clients in over twenty felony jury trials.”
“In late 1991, I returned to my hometown, Saginaw, where I served as assistant prosecutor trying major felony cases in the 10th Circuit Court until 1995 when I became Shinners and Cook, P.C.'s principal civil litigation associate, where I litigated civil matters in circuit courts throughout Michigan. These civil matters included real estate, contract, warranty, lemon law, nuisance, and labor/employment litigation. After two years of exclusively practicing civil litigation, I returned to the Saginaw County Prosecutor's Office where, as Chief Major Crimes Prosecutor, I have tried 172 felony jury trials, including 52 murder trials, in the 10th Circuit Court for Saginaw County.”
Andre Borrello has a diverse, wide-ranging experience in the practice of law and community involvement. “I have a passion for public service and have the necessary background, experience and temperament to sit as the next Circuit Judge, he asserts. Some of the positions he has held include Office Manager for Congressman Box Traxler, Assistant City Attorney, Chief Assistant City Attorney, Utilities Director, Interim Deputy City Attorney, Utilities Director, Interim Deputy City manager, attorney at Gilbert, Smith & Borrello, along with Labor Union representation for Bay County mangers, Bay City Police Officers, Michigan Building Trades, Local 85 Plumbers, Local 47 Insulators; and private representation for Saginaw Future, the Saginaw County Convention & Visitors Bureau, Sahasa Realty Corp, and the Saginaw Geriatrics Home. He was also appointed to public counsel positions for Saginaw County, as Saginaw’s City Attorney, and as a Saginaw County Labor Specialist, counsel for MBS International Airport, the Saginaw-Midland Municipal Water Supply Corporation, Carrollton Public Schools and Roscommon County and has counseled and represented individuals on a variety of matters.
In order to help formulate a better informed electorate, The Review presented several questions to each of these candidates and are pleased to present their responses below.
Review: What is your judicial philosophy; and, what professional and/or personal experiences influenced development of your judicial philosophy?
Borrello: I believe in the rule of law. To me, the rule of law means an unwavering commitment to apply the law neutrally. In my experience, practicing public sector law especially, I have been in the unique position of being an advocate for my client, in and out of court, while also incorporating objectivity in my legal analysis – to apply the law to facts in an unbiased manner in the public interest. Whether in court advocating for my client or researching a legal question, I have taken very seriously my responsibility to provide thoughtful, well-balanced briefs and legal opinions. Local officials often consider my opinions and recommendations in formulating public policy, thereby requiring neutral and thorough legal analysis. Whether I personally agree or disagree with a statute as written, the rule of law will guide my faithful performance of duty as a circuit judge.
Fehrman: No one wakes up in the morning and thinks, "Hey, I haven't got much going on today, I think I will go to court and sue someone, or be sued, or get divorced, or be a victim, or a criminal defendant or a witness." If you find yourself in court, something negative has happened in your life. I believe judges are public servants and must treat everyone who finds herself or himself in court with respect, equality and empathy. Our judicial system functions best when administered by judges committed to absolute fairness. I respect our jury system. If jurors are given enough information, they invariably make the correct decision. Many evidentiary decisions are within the discretion of the trial judge. Given my faith in properly informed jurors' ability to reach correct decisions, I favor allowing all admissible evidence to be presented at trial to enable jurors the opportunity to make the best decision possible and have that decision based on facts. I have been a trial attorney for over 30 years and have worked with thousands of jurors. This experience has strengthened my faith in the jury system. In the area of criminal law, nearly 70% of the circuit court's docket, I will ensure that all defendants receive a fair trial; and if convicted, a fair sentence based on the defendant's criminal behavior, criminal history, and personal background will be imposed. I believe judges are responsible to ensure public safety and protect victim's rights
Review: During the course of a jury trial you personally tried, did a trial judge ever make a decision regarding evidentiary or case dispositive issues that you would have decided differently? What was the decision and how would you have decided it differently?
Fehrman: At the conclusion of my trial proofs on assault with intent to murder and armed robbery charges, the 10th Circuit Court trial judge granted a defense motion for a directed verdict of acquittal as to the assault with intent to murder charge. Testimony established that the defendants had robbed the victim of his new Detroit Lions jacket, a gift from his mother, and shot victim in the back, leaving him paralyzed for life. The primary eyewitness was a female who lived in the area where the crimes occurred and knew the defendants. She had a crack cocaine habit and had been in and out of jail on a frequent basis. In chambers, on a break, the judge told me he was going to grant defense attorney's motion for directed verdict on both counts because he didn't like the witness. I convinced the judge to only dismiss the assault charge so the jury was able to decide the remaining armed robbery charge. The jury found both defendants guilty of armed robbery after less that 30 minutes of deliberation. After their verdict, the jury foreperson asked what happened to the assault with intent to murder charge because the jury would have found the defendants guilty of that charge as well. I would not have dismissed the assault charge. I would have followed the law and allowed the jury to judge the credibility of witnesses and do their job. Later, I learned the judge (retired and deceased) had an undisclosed conflict of interest because he was being represented by the defense attorney in another matter. I would have disclosed the conflict of interest and recused myself from hearing a case in which my attorney was representing a party.
Review: The 10th Circuit Court is a trial court. Please identify the last jury trial you personally tried in the 10th Circuit Court. Was the trial criminal or civil? What party did you represent and what was the jury's verdict?
Fehrman: I personally prosecuted the co-defendant, first degree murder case captioned People v. Jarquez Swilley, Circuit Court Number 15-041366 FC-1, and People v. Ladarius Welch, Circuit Court Number 15-041367 FC-1, beginning April 19, 2016 and ending with a guilty as charged jury verdict on April 27, 2016. Defendants were sentenced to life without parole on June 3, 2016. I represented the People of the State of Michigan. This was my fifty-second jury, murder trial since 1991.
Review: How many jury trials have you personally tried in the 10th Circuit Court, what party or parties did you represent, and what was the subject matter of the litigation?
Fehrman: Since late 1991, I have personally tried 172 felony jury trials in the 10th Circuit Court for Saginaw County. As Chief Major Crimes Prosecutor for Saginaw County, I represent the People of the State of Michigan. In addition to the 52 murder cases I have tried, I have tried felony cases involving attempted murder, torture, armed robbery, carjacking, bank robbery, kidnapping, criminal sexual conduct (rape), arson, home invasion, burglary, auto theft, continuing criminal enterprise, child and elder abuse, delivery and possession of controlled substances, prisoner escape, prisoner in possession of weapons and/or contraband, weapons offenses, and gang related felonies, etc.
Review: From the beginning of your career until the present time, how frequently have you personally appeared in the 10th Circuit Court on a weekly basis?
Fehrman: Since late 1991, I have appeared, and continue to appear, before 10th Circuit Court judges almost every day of the week. My jury trials typically take three days to four weeks to try. During non-trial weeks I typically handle circuit court sentencing, motion, and probation violation dockets. As noted above, my two years exclusively practicing civil litigation resulted in appearances on civil matters not only in the 10th Circuit Court, but circuit courts in Oakland, Genesee, Roscommon, Huron, Tuscola, Alpena, Benzie, and Mackinaw counties.
Borrello: In response to these last three questions, I’ve been to court; tried cases, both on the trial and appellate levels; argued motions; and submitted briefs. I have experience practicing in many courts and tribunals, including: 70th District Court, 10th Circuit Court, 34th Circuit Court, Michigan Court of Appeals, US District Court, US 6th Circuit Court of Appeals, Michigan Employment Relations Commission, National Labor Relations Board. To give a few examples, I prosecuted criminal violators. I represented my clients in court, argued numerous motions and appeals on matters ranging from zoning to constitutional law to civil forfeitures to election law to labor law; and I was counsel on a complex environmental natural resource damage case, involving tens of millions of dollars – the largest of its kind at the time.
Whatever trial experience an attorney has, it is significant to note that judges do not try cases. Judges are not advocates in court. On the contrary, judges preside over a variety of cases to ensure a fair and just process for all litigants. This requires a broad perspective and knowledge of the law. Our citizens deserve an experienced judge, who has seen the law from many different points of view and who has practiced in many different areas, in and out of court.
Beyond my trial experience, I have given legal advice to elected officials for nearly 23 years on a wide variety of matters – advice they depended on to formulate public policy. For the past thirteen (13) years, I have served as counsel to the 10th Circuit Court, 70th District Court and Family Division, which means judges depend on me to give sound, well-researched legal opinions.
Here are some areas of law in which I have experience: Criminal Prosecution, Freedom of Speech/First Amendment Matters, Statutory Interpretation, Ordinance Drafting, Civil and Criminal Enforcement Matters, Labor Negotiations/Collective Bargaining, Grievance Mediations and Arbitrations, Employment Law, Government Finance/Bonding, Open Meetings Act, Freedom of Information Act, Zoning, Water and Wastewater Services, Contracts (drafting, interpretation and enforcement), Environmental Law, Competitive Bidding, Economic Development including Brownfield Redevelopment, Property Transactions, Federal and State Grant Programs, Jail Law, Public Works Project Administration, Family Division/Juvenile Detention Matters, Court Administration, Criminal Procedure.
But no matter how much I convey about my background, ultimately, the people who know me and have worked with me provide the best testimony about my qualifications and ability to sit on the bench. To date, over 30 organizations, individuals and public officials have endorsed my candidacy, including the UAW, numerous building trade unions, several current and former judges, several law enforcement officials, Saginaw firefighters, numerous County Commissioners and other elected leaders, City Councilpersons, and many individuals. Please see my website: www.borrelloforjudge.com or my Facebook page: facebook.com/BorrelloforJudge for more information.
I believe Eugene Mossner, 35-year trial attorney veteran and past president of the State Bar of Michigan, said it best in his endorsement of my candidacy: “The qualities of a good trial judge are essentially the qualities of a good man. He must have integrity and intelligence. He must use sound judgment, be fair and open-minded and use common sense. Over and above that, he must treat litigants and counsel with courtesy and must possess a broad knowledge of the law – not just in one narrow area – but in all of its various aspects. Above all, he should have the proper demeanor and temperament in order to deal with the multitude of issues and litigants that will come before him. In my opinion, Andre Borrello possesses all of these attributes in abundance, and he is the candidate all Saginaw Citizens should vote for in the Circuit Court race this November.”