Judge to reconsider dismissal
Case of 4-year-old boy killed in crash remanded by judge to district court
A Macomb County Circuit Court judge granted county prosecutors the appeal of a dismissal of a case involving a Roseville fatal accident and remanded it back to district court.
Circuit Judge Edward Servitto said Judge Kathleen Tocco of 39th District Court must reconsider her dismissal of a misdemeanor charge against John L. Deeby in connection with the crash that killed Cayden Waldorph, 4, July 2019, on the presumption that more evidence will be presented.
Servitto made the decision March 29; the order was signed by the judge Wednesday.
Tocco last November dismissed the charge of moving violation causing death, a 1-year misdemeanor, based on the legal theory of “manifest injustice.” Manifest injustice is “an outcome in a
case that is plainly and obviously unjust,” according to Merriam-Webster.
Tocco made the ruling after hearing that a police accident reconstructionist determined Deeby was not at fault for the accident.
But it appears Tocco made the ruling only based on that evidence when other evidence may exist.
“There is a potential for other evidence, and that was not presented to Judge Tocco,” Servitto said from the bench, according to a transcript of the circuit court hearing.
Servitto noted that a misdemeanor is different from a felony in that a felony mandates a court hearing to determine whether probable cause exists that a crime occurred and the defendant committed it.
Court rules don’t include a probable-cause hearing for misdemeanors.
“I don’t believe the district court has the right to unilaterally dismiss a misdemeanor of this nature, a criminal misdemeanor, without a trial,” Servitto said.
Assistant Macomb Prosecutor
Emil Semaan suggested one piece of potential evidence.
“There was other evidence that we argued that could be brought up at the trial was the fact that he had marijuana in his system,” Semaan said. “We couldn’t charge (operating under the influence of alcohol or drugs) because under the state he had a marijuana card. However, that could still be used to help show causation. Admissible or not, maybe that’s something to be dealt with by the lower court.”
However, attorney Neil Rockind, representing Deeby, said the evidence regarding the marijuana was ruled inadmissible due an
issue with the warrant.
Seaman said he was unaware that evidence was ruled inadmissible.
In addition, the “black box” on Deeby’s vehicle showed he was driving at 43 mph, 8 mph above the speed limit, which Servitto indicated could be used as evidence, too.
The crash occurred at about 11 p.m. July 3, 2019, when the 2001 GMC Yukon driven by Deeby was traveling north on Little Mack when a 2009 Mercury Milan driven by Joseph Emond was turning left and collided with Deeby’s Yukon, according to police. Cayden was killed and his 3-yearold sister was injured.
Investigators said there
were contradictory accounts of which driver may have disregarded a red light as the two vehicles approached the intersection.
Emond, who was Cayden’s stepfather, was charged with moving violation causing death but that was dropped by prosecutors in February 2020.
Rockind has contended the accident reconstructionist concluded Emond caused the accident but that prosecutors succumbed to lobbying by Cayden’s mother, Teal Waldorph, to drop the charge against Emond, who is her husband. Deeby was charged with operating while intoxicated, but that was later changed to moving violation causing death.
In the weeks following the incident, Waldorph organized two public gatherings. One took place shortly after the incident near the intersection where the crash occurred and Deeby still faced the intoxicated driving charge, where people encouraged others not to drink alcohol and drive. At a rally in August 2019, supporters picketed and protested in front of the Roseville police station and court building, urging a more serious charge against Deeby, such as vehicular manslaughter, a 15-year felony.