'Sand-bagging' revisited

Jan 27, 2010 at 12:00 am

News Hits went to court Tuesday morning to continue covering the case of Diane Bukowski, a freelance reporter for The Michigan Citizen convicted last year on two felony counts involving charges that she either resisted arrest, obstructed justice or endangered an officer.

Bukowski was arrested on Election Day in November 2008 at the scene of a double-fatal accident on Detroit's west side. Michigan State Police were involved in a high-speed pursuit of a motorcyclist who subsequently hit a pedestrian. Both the motorcyclist and the pedestrian died. Bukowski showed up afterward, interviewing witnesses and taking pictures of the scene. Police alleged that she improperly crossed yellow crime scene tape, and arrested her.

She's seeking a new trial, claiming Wayne County Circuit Court Judge Michael Hathaway improperly allowed the prosecution to bring a rebuttal witness to the stand as testimony in the case was about to end.

Bukowski's new lawyers, John Royal and Sharon McPhail, claim that her previous lawyers were never properly notified of that witness and the prosecution's intentions to have him testify.

At Tuesday's hearing, which was still under way when we had to leave in order to file this story before deadline, the ramifications of not knowing about the witness were laid out before Hathaway, who, in essence, is being asked to admit that he made a crucial mistake.

No one likes to do that. But that rebuttal witness, security guard Karl Scales, effectively provided the court with a clear picture of just how his testimony would have been different had Bukowski's trial attorney, Emmett Greenwood, been allowed to properly prepare.

On the stand Tuesday, Scales testified that after being interviewed by a Michigan State trooper several months after the accident and about one month before the April 2009 trial began, he was questioned by a Michigan State Trooper. The notes from that interview were never provided to Bukowski's lawyers during the discovery phase, as court rules require.

As her lawyers argued in a motion seeking a new trial: "The prosecution thereby violated the statute requiring it to identify to the defense all … witnesses as they become known to the prosecution. Further, the prosecution also violated the rule that prohibits the tactic, commonly called 'sandbagging,' of dividing up its case-in-chief, and presenting crucial witnesses at the end of the trial who should have been called at the beginning."

Greenwood, who came to represent Bukowski just 10 days before the start of trial after her first lawyer, Arnold Reed, withdrew from the case, said he didn't ask Scales certain questions because, lacking the ability to prepare, he wasn't sure what answers the security guard would give.

That's something every first-year law student is taught: Don't ask questions of witnesses when you don't know what the answer will be.

Not laboring under that burden, attorney Royal did vigorously question Scales on Tuesday. And the security guard responded with answers that would appear to have very much helped Bukowski had the jury been able to hear them.

Because Fox 2 news footage of Bukowski's arrest offers no evidence of her resisting the state trooper who slapped cuffs on her, the prosecution hammered away on the point that she broke the law when she crossed the yellow crime scene tape. Never mind that, as former TV newsman and current Detroit City Council President Charles Pugh points out in a sworn affidavit, reporters are allowed to do that all the time.

That fact was never raised during trial. So the jury never got to hear that Bukowski was only doing what reporters regularly do.

The prosecution did, however, zero in on the fact that she crossed that tape. But Scales, on Tuesday, confirmed what Bukowski has claimed all along: That there was a wide gap in the tape, and that's where she passed through.

Scales also contradicted police claims that Bukowski lifted a tarp covering one of the bodies to take pictures. The photos on Bukowski's camera could have proved that one way or the other. Unfortunately, one of the cops illegally deleted photos from her camera when he confiscated it at the scene.

The Prosecutor's Office, however, never went after that cop for destroying evidence.

Instead, Kym Worthy's office has continued to bring its full weight down on Bukowski, expending a ridiculous amount of time and resources to pursue a felony conviction.

Bukowski has contended that she was singled out for prosecution because of articles she's written that have been critical of both Detroit cops and the Prosecutor's Office. Worthy's office has strenuously denied that obligation.

But as News Hits sat though yet another hearing on this case — a case that, shamefully, has received scant attention from other media in this town — we were struck again by all the effort that has gone into prosecuting this case.

We asked Greenwood about that after he testified.

"When I took this case, I thought it would be a simple thing," he said. "But that was before I realized how political it was."

News Hits is edited by Curt Guyette. Contact him at 313-202-8004 or [email protected]