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Michigan Supreme Court denies Daniel Loew retrial, but keeps him free

ALLEGAN COUNTY – Years after his first conviction and weeks after the Michigan Supreme Court upheld the outcome of his trial, a local man convicted of sex crimes remains at large.

Daniel Loew was found guilty by a jury in August 2019 of two counts of first-degree sexual abuse, two counts of third-degree sexual abuse, and one count of second-degree sexual abuse of a 13-year-old victim. Loew was 21 years old at the time of the crime. He was sentenced to 20 to 40 years in prison on November 4, 2019.

But on appeal, Loew argued that ex parte communication — that is, contact between a judge and only one side of a litigation — occurred during his trial between Judge Margaret Bakker and Allegan County Prosecutor Myrene Koch, who did not personally try the case. Koch, however, was the supervisor of the attorney who tried the case — Assistant Prosecutor Emily Jipp, who is now running for a judgeship in Allegan County.

More: Man wins new trial over email exchange between judge and prosecutor

Emails between Bakker and Koch sent during the trial were originally uncovered by private attorney Michael Villar, who defeated Koch in the Republican primary earlier this month and is now running unopposed for district attorney in November.

In the first email, sent on the afternoon of the first day of the trial, Bakker wrote to Koch: “This police officer did not conduct a very good investigation. Are there no more detectives at the MSP?”

Koch responded the next morning, “That's true, but not normally for CSCs. This officer has received additional personal training since this investigation.”

Bakker wrote back three minutes later: “One more question… this victim was not referred for medical examination, do you know why?”

The two then exchanged several emails about the victim’s lack of medical examination.

Loew was initially granted a new trial by Allegan County District Court Judge William Baillargeon, but that decision was overturned by the Michigan State Court of Appeals. In October 2022, the Michigan State Supreme Court agreed to hear the case. It heard arguments on October 5, 2023, and issued a ruling on July 16, 2024.

In a split ruling, the Supreme Court upheld the appeals court's ruling and denied Loew a retrial. But the justices said the private emails were unethical and, in Bakker's case, a violation of the Michigan Code of Judicial Conduct.

The lead opinion was written by Chief Judge Elizabeth Clement, with Justices Brian Zahra and David Viviano joining. A concurring in part and dissenting in part was written by Judge Elizabeth Welch, with Megan Cavanagh joining. A second concurring in part and dissenting in part was written by Judge Kyra Bolden. Judge Richard Bernstein dissented.

The leading opinion stated that Bakker should have recuse himself from the case, but that the one-sided communication did not violate Loew's constitutional rights, which is why the appeals court's ruling was affirmed.

“Although these communications did not demonstrate that the trial judge was actually biased or that there was an unconstitutionally high probability that (Baker) was actually biased, an ordinary person could nevertheless reasonably question her impartiality,” it said.

“That is why… she should have raised the issue of her disqualification yours sponte ('of her own accord'), and she should have recanted herself. However, the unilateral communications did not violate the defendant's constitutional right to a trial by an impartial decision-maker, his right to be present, or his right to counsel.”

On July 18, Baillargeon revoked Loew's bail. During that hearing, he did not hold back his criticism of Koch and Bakker, according to a report by WOOD TV-8.

“The actions of Judge Bakker and District Attorney Koch have brought shame and disgrace to the Allegan courts,” Baillargeon said. “The damage done to the public trust is difficult to measure, and the work to restore and maintain that trust will no doubt be daunting. But that is what we swore to do when we took the oath to become judges.”

Loew's attorneys later filed a motion for a retrial. Loew was granted bail by Baillargeon, and he was released on July 30. That release prompted Koch to file an emergency motion with the Michigan Supreme Court to revoke his bail and transfer him to the custody of the Michigan Department of Corrections.

“Due to court bail decisions, (Loew) has been on the streets for more than three years,” Koch wrote in a press release. “I have appealed the most recent bail decision because I believe he poses a clear potential threat to public safety.”

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The Michigan Supreme Court, in a ruling released Wednesday, August 14, agreed to immediately consider Koch's request, but the request was denied.

“The application for extraordinary issuance and cancellation of the bond is examined and rejected,” the order states.

Loew's lawyers, SBBL Law of Grand Rapids, told WOOD TV-8 they would continue to work toward a renegotiation.

“We are saying here that it is virtually impossible to find such evidence,” said defense attorney Heath Lynch. “It is virtually impossible to find solid evidence that there was prejudice, that the trial judge wanted this conviction. … We believe that in something as egregious as this, the system should rather go too far and give the citizen a new and hopefully clean and fair trial.”

Koch also spoke to WOOD TV-8 to set the record straight.

“The communications were sent to me by the trial judge and concerned deficiencies in the investigation,” Koch said. “My responses were specifically and solely about policies and procedures for proceeding. Nothing about the witnesses, the evidence, the trial itself, nothing about what the court should or should not do. And frankly, those communications were never shared with the assistant district attorney who tried the case.”

— Contact reporter Mitchell Boatman at [email protected].

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