Judge maintains 76-year-old man’s guilty plea in sex assault case
A judge has denied a request by the attorney for a 76-year-old Shelby Township man to reverse his no contest plea to criminal charges for sexually assaulting two youths.
Judge Michael Servitto of Macomb County Circuit Court made the ruling Wednesday in the case of Michael Flaker after listening to two psychological experts testify about his men- tal ability to enter the plea and oral arguments from defense and prosecuting attorneys.
Flaker pleaded guilty Dec. 5, 2018, to eight counts of first-degree criminal sexual conduct for acts from 2006 to 2016 and faces a mandatory 25-prison term because the victims were under 13.
Before he was to be sentenced Jan. 31, 2019, Flaker fled the state and was caught in early February by U.S. Marshalls in Arkansas.
Flaker’s attorney, Camilla Barkovic, contends he was mentally incompetent and did not “knowingly, voluntarily and intelligently” enter the plea due to his deficiencies.
“He was required to make an extremely, stressful and emotionally charged decision under extreme time constraints,” Barkovic said.
But Servitto sided with Assistant Macomb Prosecutor Emil Semaan who touted state psychologist Corissa Carlson’s conclusion Flaker was competent at the time he made the plea and displayed competence at other times since the case began.
Semaan attacked the opposite conclusion by psychiatrist Dr. Gerald Shiener
who testified last week Flaker was incompetent due to anxiety from Post Traumatic Stress Disorder from his military service in Vietnam and mental disorders that caused impulsive decision-making and made him susceptible to influence from others particularly in stressful situations. Shiener said his mental deficiencies prevented him from being able to plan and fully grasp legal concepts.
“He had the ability to plan and judge,” Semaan said of Flaker. “He successfully ran a business for many years, and had a wife and family, and was able to cut his tether, leave the state, and use multiple names, aliases and phones to evade authorities.”
Semaan argued a lack of impulse control is not unique to Flaker.
“If every defendant … has anxiousness or depression, or is just depressed because of the circumstances, and impulse control problems, let everyone out of prison, judge, let everyone out of jail, because that’s every defendant who gets caught for a criminal matter,” he said. “They all have impulse control (problems) because they don’t conform to law.
“He (Flaker) understood his crimes. He understood going to trial, and now, because he didn’t get away when he wanted to, and he’s back in front of this court, he’s now come up with this idea that ‘I’m no longer competent to understand something so you should just let me go.’”
Barkovic responded in part that it was her, not Flaker, who requested he be evaluated for competency.
Semaan also noted Stephen Rabaut, Flaker’s defense attorney in the criminal case, testified he had no inclination Flaker was mentally incompetent during his approximately one year of representing him.
“He testified not once in all of his conversations with the defendant did he consider that this person was incompetent, and if he had he would have asked for him to go into a forensic competency issue,” Semaan said. “That was not even something that crossed his mind.”
Barkovic countered Flaker may have been influenced unintentionally by Rabaut to plead, an option that was first brought up for the first time to Flaker only the day before he pleaded.
“No one in their right mind would ever plead with no benefit,” Barkovic said. “He didn’t gain one single thing, practically speaking, by doing this. No practical person would throw themselves to the woods like that.
Barkovic said Carlson indicated Flaker didn’t understand that a no-contest plea has the same effect as a guilty plea in criminal court. It only provides him some legal protection in civil court.
“If he went to trial and he lost … he would have at least had the ability to automatically appeal certain issues and he would have been in a way better position,” she said.
But Semaan noted Flaker indicated a rationale reason for pleading; he wanted spare his family from the rigors of a trial.
Flaker also entered the plea on the agreement Servitto would release him on bond while awaiting sentencing. That precipitated Flaker fleeing the state and becoming a fugitive.
Servitto scheduled a June 3 sentencing date.