Admitted child molester seeking to have plea tossed due to mental incompetency
A man who pleaded no contest to sexual assaulting two people, including a child, is seeking to have his plea invalidated on the claim he was mentally incompetent when he entered it.
A psychologist and a psychiatrist on Friday testified in the case of Michael Flaker, 76, of Shelby Township, who entered the plea in December 2018 to several counts of first-degree criminal sexual conduct. But he fled the state in January 2019 prior to his Jan. 31 sentencing in Macomb County Circuit Court. He would have been sentenced to a mandatory 25 years in prison by Judge Michael Servitto.
He was captured less than two weeks later in a motel in Jonesboro, Ark., by the Marshals Service East Arkansas Fugitive Task Force and the Jonesboro Police Department.
Defense witness psychiatrist Dr. Gerald Shiener testified Flaker was incompetent when he decided to plead due to “anxiety” from Post Traumatic Stress Disorder stemming from his military service in Vietnam and a “neuro-cognitive disorder” in which he was susceptible to influence from others.
“At the time he was asked to make a decision about entering a plea, he was incapable of doing that intelligently and knowingly and that he was incapable of really understanding the true nature and implications of the charges pending against him,” Shiener testified. “And his deferential nature and his passivity in situations of higher anxiety were not consistent with his ability to assist his attorney in a rational
manner in preparing his defense. And so those abilities were impaired.”
Shiener said he was paid $5,000 by the defense to prepare two reports and would charge an additional fee for his testimony.
Psychologist Corissa Carlson of the state Center for Forensic Psychiatry testified Flaker was mentally competent on Dec. 4, when his trial started, and Dec. 5, when he entered the plea.
After he pled, Flaker devised a plan to flee the state by securing fake identification, obtaining two cell phones and purchasing a bus ticket, Carlson noted
She examined various records and interacted with him three times, twice in person and once over video conferencing because of COVID-19. Flaker remembered her and called her Dr. Carlson, who has a doctorate degree.
“He greeted me very politely,
cooperated fully with the investigation,” she said. “He appeared to not be in any psychiatric distress. He did have some physical health symptoms. He provided an accurate timeline which was corroborated by jail records.
“He showed quite accurate memory and showed quite good memory.”
She agreed with Assistant Macomb Prosecutor Emil Semaan that Flaker has been under stress since he was jailed over two years ago due to the impending sentence, but, “He did not display nor report any psychiatric distress. Anytime he expressed anxiety it was in the context of those physical ailments.”
She noted by watching video of him in court that he appeared to be consulting his attorney, Stephen Rabaut, in an appropriate manner and at one point asked the judge for water, and followed instructions.
Rabaut, an attorney for 41 years nearly exclusively in criminal defense, testifed Flaker met with him several times and did not display mental issues.
“That never entered my mind” of seeking a mental evaluation of Flaker, Rabaut said, adding Flaker assisted in his defense.
Under cross examination by defense attorney Camilla Barkovic, Rabaut said that facing the criminal charges “was a very emotional circumstance for Mr. Flaker” and was aware of the 25year sentence if convicted.
Rabaut said Flaker never indicated a wish to plead prior his trial starting Dec. 4, 2018. But discussions began late that day after the jury had been selected, opening statements were given and the first witness was about to testy, he said. Flaker entered the plea the next day, Dec. 5.
In response to Barkovic’s suggestion Flaker was “stressed, emotional and distraught at that period of time,” Rabaut said, “I would agree he was distressed. I would agree he exhibited emotion. I don’t think I would say distraught.”
When asked by Semaan if he forced Flaker to plea, “I’ve never made a client enter a guilty plea in 41 years. It was his choice.”
Flaker provided reasons for his decision, Rabaut said.
Flaker pleaded to all of the charges against him. Judge Servitto gave him a $100,000 personal bond and ordered him to wear a GPS tether while waiting for his Jan. 31, 2019 sentencing. But sometime close to or on his sentencing date, authorities received an alert the tether had been cut; the last ping from the tether was near 22 Mile Road and Central Park in Shelby Township.
The parties in the case will return to court Wednesday for oral arguments, after which Servitto will decide whether Flaker is competent.