August 27, 2014

From Arfee to Brady

Filed under: Probable Cause — Tags: , — Bill @ 11:31 am

Investigations-FactsOn July 9, 2014, a Coeur d’Alene police officer shot Arfee, a pet dog, inside its owner’s parked van .  Arfee’s owner had reportedly parked in the adjoining parking lot while he was patronizing Java on Sherman coffee shop.

In the late 1950’s the state of Maryland convicted John Brady of first degree murder .  His conviction was overturned by the US Supreme Court in 1963 because the prosecutor had withheld the existence of potentially exculpatory evidence from Brady. (see Brady v. Maryland, 373 U.S. 83 (1963))

Because of the Coeur d’Alene Police Department’s misleading press release announcing the officer-involved shooting of Arfee on July 9, it will be interesting to see if the 1963 Brady decision and later decisions expanding it may play a role in the Arfee shooting outcome in Coeur d’Alene, Idaho in 2014.

As we have reported in several earlier OpenCdA posts, at approximately 11 A.M. on July 9, 2014, a Coeur d’Alene police officer was investigating a van lawfully parked in the parking lot next to the Java on Sherman coffee shop in downtown Coeur d’Alene, Idaho.   As the officer approached the van on the driver’s side, a two-year old black Labrador mix dog named Arfee by his owner, appeared in the van’s partially open driver’s side window.  The police officer shot and killed Arfee.  Arfee’s owner was reportedly inside the coffee shop.   News reports indicate a police department business card left with his van was how the owner first learned something had happened to Arfee.

CPD SGT Walther Business Card re dog shooting

At 2:38 P.M. on July 9, 2014, the Coeur d’Alene Press online posted a press release attributed in other media to Coeur d’Alene Police Department Sergeant Jeff Walther.  The press release read:

Coeur D’Alene Police Officers responded to reports of a suspicious van possibly watching young children in the Downtown Area parked in the parking lot behind 821 Sherman Avenue. Upon investigating the van, as the Officer approached along the driver’s side, a vicious Pit Bull dog lunged out the open driver’s side window toward the Officer’s face. The Officer fired one round from his service weapon as the dog lunged, striking the dog in the chest, dispatching it. The Officer was uninjured by the attack. The van was otherwise unoccupied. Officers are currently working to locate the owner of the van.

The press release contained significant inaccuracies and hyperbole inconsistent with professional police reporting.   Because the inaccuracies were so easily refuted and the police were forced to correct them, some reasonable people wondered if the Coeur d’Alene Police Department’s initial press release was intended to dissuade citizens from questioning how the police handled this incident.   Some also wondered if any other police department supervisors and city officials approved the inflammatory and inaccurate content in the press release before it was issued.

If the official press release issued by the Coeur d’Alene Police Department is shown to have been intentionally deceptive or misleading,  then it may adversely affect the credibility of police officers involved in the release’s preparation and approval.   That is actually a very big deal.  For an excellent explanation of the consequences of intentional deception by law enforcement officials, see Police Officer Truthfulness and the Brady Decision which appeared in The Police Chief, vol. 70, no. 10, October 2003.  See also Disclosing Officer Untruthfulness to the Defense:  Is a Liars Squad Coming to Your Town? which appeared in The Police Chief, vol. 72, no. 11, November 2005.

But wait.  Isn’t there a big difference between the actions of an officer who withholds exculpatory evidence in a murder investigation and those of an officer who includes inaccurate information in a press release?

Yes, if the press release’s inaccuracies were unintentional.  However, if the press release was worded to intentionally deceive its readers into believing otherwise unjustifiable conduct by a police officer was justified, then the aggravating factor of malice creeps into the decision.   Although a press release about an incident may not seem to have the same legal status as officers’ investigative reports about the incident, the press release is still an official public document generated by the police department.  Issuing an intentionally inaccurate press release to aid in covering up improper police conduct would elevate the seriousness of deception in the press release.

If police officers involved in writing and approving an erroneous press release worded it to intentionally convey a false impression of events, the officers’ veracity as testimonial witnesses may be subject to impeachment.

One of the decisions that evolved from Brady was the Giglio decision (see Giglio v. United States, 405 U.S. 150 (1972)).  As noted by writer Lisa Judge in her article linked earlier, ” In Giglio v. United States the Supreme Court extended the obligation to share exculpatory information with the defendant to include information concerning the credibility of government witnesses.”

In Giglio, the US Supreme Court ruled that prosecutors are required to learn of and disclose to the defense information that could be used to discredit law enforcement witnesses in a case.  So if a police officer prepared or approved false reports on a material matter,  that conduct must be disclosed to prosecutors who, in turn, must disclose the officers’ conduct to the defense.  That conduct follows the officers in their personnel folders.  A police officer’s testimonial credibility is a valid consideration of the trier of fact.  The vehicle of deception (e.g., press release versus official investigative report) is less the issue than the officer’s willingness to engage in materially deceptive conduct in performing his or her duties.

We were not reassured when we read in the August 15 Spokesman Review online article (CdA police investigation into Arfee shooting moving slowly) that the yet-to-be-finished report of the incident “… will be reviewed by three internal police officials …” and others before being released to the public.   If any or all of those “three internal police officials” were involved in approving the inaccurate press release, their objectivity in the overall review could be questionable.

We don’t know if the Coeur d’Alene Police Department officers who prepared and approved the initial Arfee press release were just remarkably and unprofessionally careless or intentionally deceptive, but it does matter.  If there was intentional deception, attorneys should and probably will learn and remember the names of those officers.

Reportedly Arfee’s owner David Jones will be represented by Bellingham attorney Adam Karp.  We commend Mr. Jones’ wisdom in seeking legal counsel.  Attorneys know about the Brady decision and its offspring even if Coeur d’Alene’s police officers and City officials may not.







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