Saturday, December 16, 2006

Checkered Flag and Case for Al Unser Sr.

What's wrong with this picture?

This is Al Unser Sr. in happier days; it was early June 1970. It was Unser’s homecoming after his first Indianapolis 500 victory. He was given a police escorted parade from the Sunport to his West Central home.

Unser is with his family; daughters Debra Ann, 9, Mary Linda, 10, Alfred, Jr. “Little Al,” 8, partly obscured by his mother, Wanda, and Mary, “Mom Unser” is in the front passenger’s seat. Yes this is before the mandatory seat belt laws.

In my Sept. 7 posting, 2006/09/unsers-on-unser.html, I analyzed the potential case of the Aug. 9 arrests of Unser Sr., and his brother Bobby by Bernalillo County deputy sheriffs.

Unser Sr.’s case came to trial this week, lasting two and a half days and resulting in a six-person jury acquitting him on the two misdemeanor counts of; resisting/obstructing an officer and obedience to police officer.

A couple of things peripherally are disturbing about this case.

According to reports in the Albuquerque Journal and television news accounts, Albuquerque Police Officer Sam Costales, a 23-year veteran, testified, in uniform, under a defense subpoena. In his testimony, he said he had set up a roadblock at Central Avenue and Unser Boulevard, during a stand off with an alleged carjacker, that called for a SWAT operation and ended when the man took his own life.

Costales was joined by a number of both uniformed and plain clothed deputies in setting up the roadblock. In addition to marked units, there were at least two unmarked sheriff’s cars on scene.

Costales testified that the deputies who had arrested Unser Sr. were rude and behaved unprofessionally. He heard deputies yelling and swearing at Unser, all at the same time. Costales said he informed his lieutenant the next day.

After Costales testified, Sheriff Darren White, left, called APD Chief Ray Schultz to complain. White’s complaint took two forms; that White had not been notified that Costales would testify for the defense and that he had testified in uniform.

Schultz told the Journal on Thursday, that he was ordering an internal investigation. He said he did not know Costales was going to testify.

So what's wrong with this picture?

Sheriff White has again shown his arrogance and disdain for the law.

This was a high profile court case that followed a high profile arrest. White and his administration failed to analyze the events and actions of the deputies.

The information was readily available; I found it easily enough to make my posting. I used the press and television reports of the day and obtained and reviewed the reports filed by the deputies themselves. The most telling of these were the police reports. They openly explained what they did wrong, though they neither meant to, nor realized that they had done so.

Officers do not routinely inform their chain of command that they have been subpoenaed by a defense attorney to testify in a criminal case, nor should they have to.

The test is simple; does the officer have a fact that would assist a judge or jury in finding the truth? It matters not whether they testify for the prosecutor or defense; what they actually are testifying for is the legal system.

To suggest that an officer has an obligation to inform his department before testifying, just because the subpoena comes from the defense, implies that an officer maybe asked to shade their testimony, or may not tell the truth or that the truth will embarrass the department. In this case, the embarrassment belongs to the sheriff’s department.

As a part of the legal process, called discovery, both the prosecution and defense are entitled to know what evidence and testimony will be used during the court presentation. There should have been no surprise to the prosecutors, and by extension, to White’s administration, as to Costales’ testimony.

As to Costales’ wearing his uniform to court; some of the deputies wore their uniform while they testified. The idea that by being a defense witness prohibits Costales wearing his uniform is an attempt to lessen the perception that a uniform brings to the individual. There is a power inherent in the uniform; it connotes and represents the authority of government and truth is one of those expectations.

If White thinks it is inappropriate for Costales to have worn his uniform to court, just because he was called by the defense, then it would also be inappropriate for deputies to have worn their uniform’s to court when called by the prosecution. APD’s standard operating procedures indicate that uniforms are an appropriate dress for Metropolitan court. Does White wish to diminish Costales’ authority?

White told the Journal that he could not see how an internal investigation could be witness intimidation. However, it was White’s call to Schultz, left, that triggered the possible intimidation.

John Walsh, APD’s spokesman, also told the Journal that an internal investigation could not be witness intimidation because Costales was excused as a witness.

Walsh conveniently forgets that there is another trial; Bobby Unser’s case is scheduled to go to court in January. All the same players will gather again and no doubt Costales will again be called upon to testify. Walsh, speaking on behalf of the police administration, should be careful that his spin comment does not constitute witness intimidation.

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