BRANDON TOWNSHIP – John Gilpin will have another day in court next month on a felony charge of tampering with an absentee ballot.
This time, March 21, it will be a preliminary exam before 52-2 District Judge Dana Fortinberry, who succeeded now-retired judge Gerald McNally.
It was McNally who reduced the charge to disorderly conduct (a misdemeanor) after a preliminary exam in November 2002.
The reduced charge was overturned last week by Oakland County Circuit Court after an appeal by the county prosecutor’s office.
“Appeals did a review [of the case] and recommended it be reviewed in circuit court, after they discovered a flaw in the case,” said county Assistant Prosecutor Pam Johnson.
“Whenever a charge is reduced from a felony to a misdemeanor, we have the option to send it to the appeals division,” she said.
According to the original charges, Gilpin filled in an absentee voters ballot for the Aug. 9, 2002 primary election and signed his daughter’s name to the document prior to turning it in to the Brandon Township Clerk’s office.
After analyzing the signature, the Oakland County Sheriff’s Department charged Gilpin with tampering with an absentee ballot.
At the preliminary exam, in November Gilpin’s attorney Robert Bullard contended that the complaint was inappropriate, that the statute under which Gilpin was charged is unconstitutional and that he didn’t think witness testimony was required.
Johnson argued, however, that state statutes are considered valid law unless overturned in due process.
“There was a violation of the law,” said Johnson at the first preliminary exam. “If there is any deficiency in the statute…it is for the Legislature to remedy.”
Before hearing witness testimony, McNally reduced the charge to a misdemeanor, saying the statute on absentee balloting is vague.
“We appealed the decreased charges,” said Johnson. “The Circuit Court did find an error in the decision and recommended it be tried [under the original felony charge] in the 52-2 District Court. The order is to reinstate the criminal charges [against Gilpin].”