SUNDAY EDITION | Judge’s ruling letting police officer ignore subpoenas sets ‘dangerous’ precedent,' attorney says
Defense attorney Julie Kaelin told Jefferson District Court Judge Jessica Moore the ruling was setting a “dangerous” precedent, allowing officers on administrative leave to “never have to come in to answer questions until LMPD says it’s over. Of course that is going to tie people up,” leaving cases pending.
LOUISVILLE, Ky. (WDRB) -- After she swerved into concrete barriers on Interstate 64 on the morning of Aug. 27, 2016, a Louisville woman was pulled over by Louisville Metro Police and charged with driving under the influence.
The 61-year-old woman – who has no criminal record – had slurred speech and couldn’t walk a straight line, but she claimed she had a seizure on the way to a teacher’s conference. Investigators failed to obtain blood test evidence to determine whether she was under the influence.
The first officer to arrive on the scene told a colleague, “I don’t have anything criminal right now,” according to body camera video. “We need to get her checked out and get her safely off the road so she doesn’t kill anybody.”
But efforts by defense attorney Julie Kaelin to get the case dismissed have been on hold for several months.
A judge has ruled that the lead investigating officer does not have to come to court to testify.
The ruling raises the possibility that cases could languish for months as officers avoid court appearances simply because they are on paid leave – often for reasons unrelated to the testimony that’s needed.
In the case of the allegedly impaired driver, lead officer Sarah Stumler has been on paid administrative leave for nearly a year since shooting 38-year-old Bruce Warrick, an unarmed man who was shot at an abandoned house in the Russell neighborhood immediately after Stumler told him to put his hands up.
After first delaying the DUI case, both the Jefferson County Attorney’s office and Kaelin subpoenaed Stumler to testify on Dec. 13 in a probable cause hearing, but she did not appear in court.
Other Stumler court cases have either been settled without her testimony or put on hold.
It is not an uncommon problem for prosecutors to have to work around an officer whose testimony may be called into question while they are being investigated. However, the DUI case involving Stumler added a new wrinkle.
In the Dec. 13 court hearing, Kaelin asked a judge to order Stumler to appear, noting there is nothing in state law allowing police to ignore subpoenas.
But Jefferson District Court Judge Jessica Moore ruled Stumler could avoid the subpoenas while she is under investigation.
Kaelin told Moore the ruling was setting a “dangerous” precedent, allowing officers on administrative leave to “never have to come in to answer questions until LMPD says it’s over. Of course that is going to tie people up,” leaving cases pending.
“What does (my client) do?” Kaelin asked the judge. “Does she wait indefinitely for Officer Stumler? … Or does she go forward with the inability to present evidence she believes is relevant?”
'Lost in translation'
Police say there are currently eight officers on administrative leave, though the department declined to identify them, saying LMPD does not comment on the status of investigations until they are complete.
For example, however, LMPD Officer Brad Schuhmann has been on administrative leave since May while he is under investigation for alleged abuse of a 15-year-old in the department’s youth Explorer program.
“It’s problematic on multiple levels,” Kaelin said in an interview recently, saying Judge Moore’s ruling allows police to be treated differently than everyone else. “If we continue to allow this, where officers are on leave and still being paid, and yet not being required to follow legally issued subpoenas, regular citizens have their cases delayed indeterminately.”
Typically when someone is subpoenaed and doesn’t come to court, the judge can issue a warrant for their arrest or order the sheriff’s department to go to their home and personally deliver the subpoena to ensure it was received.
Moore declined to do either in Stumler’s case, ruling that since the officer was under criminal investigation and her police powers are currently suspended, her failure to appear did not rise to the level of “woeful conduct.”
In most instances, officers put on leave while being investigated by the department come to court when subpoenaed, but often with an attorney, and refuse to answer any questions about the case they are being investigated for.
Stumler should have to come into court and testify about the DUI case and then invoke her Constitutional right to not testify if asked about the shooting, Kaelin said. Or she should come in with an attorney and argue why she shouldn’t have to testify at all, said Kaelin, who had told the judge she wouldn’t ask about the shooting investigation.
“It’s outright extreme to just ignore a subpoena,” she said. “Police, of all people, should have to follow the law. And our judges should enforce the law.”
An attorney for Stumler, Steve Schroering, said he did not know of the Dec. 13 subpoena in the DUI case but that he and Stumler have honored other subpoenas and told judges and prosecutors she would not agree to testify, arguing the officer has a Fifth Amendment right not to incriminate himself.
“I would have appeared with Stumler and done the exact same thing” in this case, he said. “I’ve advised her not to testify in anything. There was no intent to evade anything on her part.”
In an interview about how prosecutors handle cases while officers are under investigation, Commonwealth’s Attorney Tom Wine said a “court subpoena is an order of the court” that an officer can’t ignore.
“Simply not showing up is not an option,” he said. (Wine’s office is not prosecuting the Stumler DUI case. It is being prosecuted by Jefferson County Attorney Mike O’Connell’s office, which declined to comment because the case is pending.)
LMPD spokesman Vadim Dale said in an email last week that Stumler “had an exception in the system approved by both the Louisville Metro Police Department, the prosecutors on the case, and the Judge presiding over the case.”
Dale said Stumler was advised by her attorney to request a continuance in the DUI case, and the case has been delayed until March.
And Dale said officers on leave are expected to honor subpoenas except when certain requirements are met, which must be approved by the court.
A video of the Dec. 13 DUI court hearing does not show Stumler had prior approval from the judge allowing her to ignore the subpoenas.
“She was contacted to appear … and should have responded accordingly to that subpoena,” Judge Moore said during the hearing.
The prosecutor, Assistant County Attorney Lyle Burnham told the judge he did not know if Stumler had received his subpoena or not. But he argued there was enough evidence for the case to move forward, and the officer’s presence was not necessary.
During the hearing, Judge Moore called an LMPD court liaison about Stumler’s absence.
LMPD Sgt. Brian Hellinger told Moore that sometimes officers on administrative leave have their police powers taken away, but they are still employed with the department.
Because Stumler is under criminal investigation, Hellinger said by phone during the court hearing, she was employed but not acting as a police officer at the time.
“With the criminal investigation, it could last well over a year,” he said, saying prosecutors have to look at the findings once police have turned over evidence and then the case could be presented to a grand jury for review.
Hellinger said “we don’t condone them (officers on leave) avoiding subpoenas,” but attorneys for the officer may tell them not to come to court because they may have to testify, and possibly incriminate themselves.
On Friday, Dale said officers on leave are “absolutely not” allowed to ignore subpoenas, but Stumler had followed proper police procedure in telling Hellinger that she would not be appearing. He said that information may “have gotten lost in translation” with court officials. Police also noted that the initial officer involved in the DUI case was at the hearing and testified.
Typically, said local defense attorney Steve Romines, an officer being placed on leave while under investigation is a boon for the defense.
“They (prosecutors) give you almost whatever you want, a deal too good to refuse because they can’t make the case,” he said of agreements to plea bargain cases while officers are on leave.
The problem is that if the officer on leave testifies in a case – regardless of whether it has anything to do with what they are under investigation for – defense attorneys can sometimes bring up the issue.
Last year, for example, former LMPD Officer Ryan Scanlan was forced by a judge to testify in a robbery and assault trial about several unrelated controversial Facebook posts he shared in the wake of protests following police shootings of black men. A jury found the defendant in the case not guilty. Scanlan was later suspended for the posts.
“If I have one of the cases, first thing I’m going to do is question him about the investigation and he has to testify once on the stand,” Romines said.
Wine acknowledged that prosecutors sometimes have to make generous plea deals if an officer is under investigation for something that might cause their truthfulness to be questioned.
But he said he has never seen a judge allow an officer to avoid a subpoena.
“You need to have to have a hearing before the court and give the judge an opportunity to hear why this officer should not be required to testify,” Wine said.
In recent weeks, Kaelin asked Moore to dismiss the case, saying prosecutors could not say if Stumler “will ever be available or when, so the case should not just be indeterminate," according to court records.
The Jefferson Commonwealth’s Attorney’s office received the Stumler shooting investigation from police in August but has not yet decided whether she should face criminal charges, saying more information is being gathered from police.
In addition, Kaelin argued that while her client acknowledged taking a sleeping pill the night before, police and prosecutors never obtained blood tests Stumler requested from the hospital.
“If you didn’t have any drugs in your system, it will show up in the blood and help you out,” Stumler told the woman at the hospital after charging her and requesting she voluntarily give blood, according to body cam video.
On Jan. 19, Moore ruled that without Stumler’s testimony or blood test evidence, she would suppress the evidence in the case – which included body cam footage and the initial officer’s testimony.
But prosecutors have asked Moore to reconsider and the case is scheduled back in court next month, with a trial date set for March.
Regardless, Stumler will not be involved.
“It’s an unfortunate consequence,” Schroering said of his client not testifying in cases. “It is what it is, one of the collateral consequences.”
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