A video of Michael DeHerrera being attacked without apparent provocation by a Denver cop has gotten plenty of attention, with Mayor John Hickenlooper calling for the FBI to review the case after his manager of safety declined to sack the officers involved. But another video -- of Marvin Booker, who died in Denver jail on July 9 -- hasn't been made public, despite media demands. And the DA's office is getting frustrated explaining why not.
Last week, Booker's family called for the video to be released, and a few days later, a Denver Post editorial echoed this sentiment.
But that's not going to happen -- at least not right away -- as Denver District Attorney's Office Lynn Kimbrough explains in one of her periodic "Setting the Record Straight" features. This unusual approach to countering what the DA's office sees as misinformation in the press was the subject of a July 2004 Message column. See the latest offering below, along with a February letter from DA Morrissey to Denver Police Chief Gerald Whitman explaining the pre-trial-publicity rules.
The bottom line, says Kimbrough, is that Denver DA Mitch Morrissey "would be breaking the rules" by issuing the video, since the investigation into Booker's death has yet to be completed.
"Releasing evidence, whether it's someone's statement, a video or some other kind of physical evidence, during an ongoing criminal investigation or a potential criminal prosecution is not allowed," she emphasizes. "It would be a violation of the rules of ethical conduct, and it might also be a violation of Colorado statutes."
Moreover, she continues, "it strikes me as odd that this has become such a subject of public discussion. I would have thought common sense would help with understanding how a criminal investigation is done -- which is to protect the integrity of that investigation and any criminal prosecution that might result from it."
The procedure shouldn't be news to local journalists, she believes.
"If we look at other criminal investigations where there is video surveillance, we routinely deny requests for copies as the case is still making its way through the process," she says. "You can ask [Channel 4's] Rick Sallinger or Brian Maass, two folks who come to mind who often request video evidence in a criminal case. Those requests are denied until the case is completed.
"Maybe it's my own naïveté, because I know that's how it works in every case and it's so standard, that it comes as a little bit of a surprise, the depth to which I'm still trying to explain to people why this video isn't going to be released, and that it's not some kind of delay -- that there's nothing out of the ordinary about how this investigation is proceeding."
As for when that might change, "there's no way to predict a time or a date," she concedes. "But otherwise, the process is predictable. Once the investigation is completed, the case will be presented to our office for review. We will have that investigative case file for some period of time for the legal review, and our conclusion at the end of the legal review would either result in the filing of a criminal charge or result in us declining to file a criminal charge.
"If no criminal charge resulted and there are no further pending matters, I believe the video would be available for release. And if there was a criminal charge, it wouldn't be available, because it would be part of a criminal prosecution. Then we'd have to wait until the end of the prosecution process, just as in every other case."
Until then, she says, "we need to stay focused on the issue -- which is understanding the cause of Mr. Booker's death."
Page down to see Kimbrough's latest "Setting the Record Straight" essay and the pre-trial-publicity letter to the DPD chief.
"Setting the Record Straight" release:
The Denver District Attorney's Office would like to respond to the public calls to release part of the evidence (a video) in the on-going death investigation of Marvin Booker, who died on July 9, 2010 while in the custody of the Denver Sheriff's Department. Media coverage, including news reports, columnists and editorial discussion, have all failed to note that the release of evidence in a potential criminal matter is not discretionary. The impression that there is some kind of "delay" in releasing evidence in an on-going criminal investigation or that the District Attorney can ignore legal and ethical obligations and arbitrarily make an exception to the law is disturbing and incorrect.
Colorado statutory laws provide that records and certain other information associated with criminal investigations or prosecutions are given substantial confidentiality protections. Depending on the record or information, and the status of investigation or prosecution, the records custodian may deem it contrary to the public interest at that time to release partial or all information related to the criminal case. Further, the Colorado Supreme Court Rules of Professional Conduct, which control the conduct of Colorado prosecutors, also prohibit the release of information that Colorado statutes prohibit.
Each year, the Denver District Attorney is required to formally remind Denver law enforcement of our prosecutorial obligations related to the public release of information. This formal notification is made in writing by the elected District Attorney in a letter to the Denver Chief of Police. It outlines in detail the constraints we have during an ongoing investigation and provides the context that has been missing from media reports. Below is a link to a copy of the letter that was sent to the Chief of Police at the beginning of this year. Hopefully, it will give you a better understanding of why the so-called 'jail video' will not be released at this time:
Pre-trial-publicity and news release letter:
February 17, 2010
Dear Chief Whitman:
The purpose of this letter is to provide to you the details about limitations that my office and your department must observe in providing information to the public. As a prosecutor and a member of the Colorado Bar, I am bound by strict prohibitions regarding what information is to be released to the media in pending civil or criminal cases. These prohibitions are found in the Colorado Rules of Professional Conduct, as adopted by the Colorado Supreme Court in 1992 and amended thereafter. It is well established that, where government lawyers are concerned, these strictures extend to those government agencies that are engaged in the investigative aspects of the case. Specifically, Rule 3.8 (f) requires a prosecutor to:
Exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extra-judicial statement that the prosecutor would be prohibited from making under Rule 3.6.
Under Rule 3.6, prosecutors and law enforcement personnel are constrained from issuing statements that they "know or reasonably should know...will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter." For example, in connection with criminal matters, other proceedings which could result in incarceration, or civil matters involving a jury trial, statements that relate to the following subjects ordinarily are considered likely to prejudice adjudicatory proceeding and therefore should be avoided:
(1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness;
(2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement;
(3) the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;
(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration;
(5) information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial;
(6) the fact that a defendant has been charged with a crime, unless there is included a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty. See Rule 3.6, Comment 
Pursuant to these rules, prosecutors and agencies engaged in the investigation of the case are allowed to release the fact that the investigation is in progress, and the claim, offense, or defense involved.
They may also disclose the identity of the persons involved, except when prohibited by law. The rule specifically provides that, in a criminal case, only a limited amount of information may be released.
(i)the identity, residence, occupation, and family status of the accused;
(ii)if the accused has not been apprehended, information necessary to aid in the apprehension of that person;
(iii)the fact, time and place of arrest: and
(iv)the identity of investigating and arresting officers or agencies and the length of the investigation
Further, it is allowable to release the following information:
• Information contained in a public record;
• The scheduling or result of any step in litigation;
• A request for assistance in obtaining evidence and information necessary thereto;
• A warning of danger concerning the behavior of a person involved, when there is a reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest.
Speculation about the specific charges that might be filed by my office or information about a tentative acceptance is not part of the public record and should not be released.
I recognize the desire to inform the public regarding highly visible police investigations or cases. However, I feel strongly that we should do nothing to jeopardize a later prosecution or, for that matter, the defendant's right to a fair trial. Additionally, witnesses to crimes are often hesitant to come forward because of fears, either perceived or real, that we make no effort to protect their identity or their safety. Any press statements made by the police in major investigations or cases should bear this dynamic in mind.
I would appreciate any effort on your part to communicate to the members of your department the above-stated constraints. If, at any time, I or a member of my staff can be of assistance to you in training your department about these constraints, we would be happy to provide the help.
I realize how difficult it is for a police department the size of Denver's to control the flow of information. I appreciate all the efforts you and members of your department make to bring integrity to the department and the criminal investigations conducted by it.
Mitchell R. Morrissey
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