Denver DA launches probe
Marvin Booker died while being restrained in jail
Denver’s district attorney will ask a grand jury to investigate the death of Marvin Booker — a homeless street preacher who died while being restrained and shocked by jail deputies — after his family leveled accusations of rigging evidence or launching a coverup after his death.
The investigation will not involve the actual homicide but instead is likely to focus on accusations of obstruction of justice or tampering with evidence after the Booker family raised questions about a missing Taser used on their brother on July 9, 2010, at the downtown jail.
A jury in a federal civil rights trial in 2014 found the city and jail deputies liable in Booker’s death, and the city ultimately agreed to pay the family a $6 million settlement.
The Rev. Spencer Booker, who is Marvin Booker’s brother, and his wife, Gail Booker, said Thursday they were grateful that District Attorney Beth McCann had decided to launch a grand jury investigation into what happened to the Taser that was used in their brother’s death.
“We thought this day would never come,” Gail Booker said. “We should not have had to ask for the city to see if criminal actions
had taken place with that Taser.”
Mitch Morrissey, who was district attorney at the time, declined to bring charges against the deputies involved in Booker’s death even though it had been ruled a homicide.
McCann said the new grand jury inquiry will not extend to homicide offenses.
“In general and as a matter of policy, I do not believe it appropriate to reopen my predecessor’s charging decisions without new evidence surfacing,” McCann said. “There is no new information that would warrant a re-examination of DA Morrissey’s decision not to file homicide charges.”
But McCann’s statement said “new information does justify an inquiry into certain conduct that may have occurred in the aftermath of the incident.”
That new information, which came to light in the federal trial, “justifies an inquiry into possible charges for which the statute of limitations has not yet expired,” she said.
In June, Booker’s family wrote a letter to McCann asking her to reopen a criminal investigation into his death.The family said evidence presented in the federal trial showed that a Taser submitted by deputies for analysis was not the same stun gun used to shock Booker while he was restrained. The letter asserts that Sgt. Carrie Rodriguez intentionally switched Tasers because she had shocked Booker longer than the amount of time recommended by the manufacturer.
Five deputies restrained Booker in the booking area of the Downtown Detention Center after he ignored a deputy’s orders because he wanted to get his shoes. They placed him face down on the floor and used handcuffs, nunchuks and a carotid neck hold to restrain him. The Taser was used while Booker was handcuffed and deputies were holding him down. The entire incident was recorded by jail security cameras.
McCann’s statement did not specify what new information had come to light, but Booker’s family has questioned how long a Taser was deployed against Booker, suggesting it could have been 8 seconds or as long as 27 seconds.
“It’s imperative to figure out how, when and by whom the Tasers were switched and how the box of Tasers in Sgt. Rodriguez’s office may have factored in,” said the letter, which was signed by the Rev. Spencer Booker on behalf of the family. “No mat- ter how many years after Marvin’s death and no matter how much city officials may wish we’d stop asking, these are not questions that can rightly go unanswered.”
Darold Killmer, who along with partner Mari Newman represented the Booker family in the lawsuit, praised McCann’s decision.
“It’s a big deal. This is a pretty refreshing departure from the DA’s office acting in lockstep with deputies and police,” Killmer said. “This new administration is demonstrably showing their independence.”
Prosecutors intend to present evidence that deputies participated in an extensive cover-up by hiding the Taser that contributed to Booker’s death and meeting repeatedly to get their stories straight about what happened, Killmer said.
Minutes after Booker’s death, deputies gathered outside the jail and began discussing how they would present the case to investigators, including agreeing to falsify evidence, he said. Even after a supervisor told them to stop speaking with each other they planned and held a meeting at a North Denver restaurant to coordinate their stories, Killmer said.
“The conduct of the deputies after his death is all under investigation,” he said.
During the trial, Killmer and Newman focused on numerous disparities regarding the Taser.
Rodriguez shocked Booker even though a deputy had him in a carotid choke hold, he was in handcuffs and 1,000 pounds of deputies was already on top of him, Killmer said. Several witnesses who testified at the trial recalled hearing the crackling of the Taser for 25 to 30 seconds, he said.
“He never moved after he was Tased,” Killmer said.
The jail’s policy said officers could not Tase inmates for more than five seconds at a time. How long and when Tasers are used are time-stamped on each Taser, Killmer said.
When a Denver detective asked Rodriguez to produce the Taser she had used, she gave him a Taser that had not been deployed at all on the day Booker died, he said.
When told so, Rodriguez apologized and returned with a Taser time-stamped more than an hour after Booker’s death and showed it had been used for 8 seconds, Killmer said. He said it’s possible that someone took an unused Taser and deployed it for a short span of time to fool investigators.
“Justice is way overdue, but it is welcome nonetheless,” Killmer said.
Still, a new criminal case is not a certainty. And even if a grand jury finds evidence of obstruction or tampering, it may be too late to file charges, said Kris McDaniel-Miccio, a professor at the University of Denver’s Sturm College of Law and a former prosecutor in New York.
The statute of limitation on most felonies is three years, and it is 18 months on misdemeanors, McDanielMiccio said. It will depend on how courts interpret the statute and when a judge says the clock officially started ticking.
If courts conclude the case should have started in 2010, time has run out. If they decide it started in October 2014 during the federal civil trial, then McCann is running out of time, McDaniel-Miccio said.
But if the time began when the Bookers sent McCann a letter in June, then the DA’s staff has plenty of time to investigate and decide whether to bring charges, she said.
“The statute of limitations would start running from the time the information was discoverable,” McDaniel-Miccio said. “If I were them, I would work in a hurry.”