Is Diane Bukowski being unfairly targeted by the Prosecutor’s office

 BY NEWS HITS STAFF  12/30/09

 News Hits will be the first to admit that Diane Bukowski isn’t a conventional mainstream journalist. She is, after all, a freelancer for The Michigan Citizen, a publication that bills itself as “America’s most progressive community newspaper.”

Whatever you may think about Bukowski’s skills as a journalist, however, there’s no question that she’s tenacious. As we pointed out before, she was the first in town to draw attention to the problem of Detroit police officers being involved in far too many questionable shootings. Eventually, after other media followed her lead and began exposing the situation, a U.S. Justice Department investigation concluded in 2003 that the department was, along with other severe shortcomings, “subjecting individuals to uses of excessive force. …” As a result, the DPD remains under federal oversight.

Which brings us to the issue of Bukowski’s felony conviction earlier this year, and her ongoing attempt to win a new trial.

In November 2008, Bukowski was arrested for allegedly crossing a police barrier to take pictures at the scene of a fatal accident on Detroit’s west side. The accident involved a motorcyclist fleeing the Michigan State Police, who were engaged in a high-speed pursuit. The motorcyclist struck a pedestrian, and both were killed.

Bukowski, who has questioned why the cops weren’t using their siren while making a high-speed chase past a school, showed up and began taking photos. The cops, who were dealing with an unruly crowd, quickly slapped cuffs on her and took her away in a squad car.

Before doing so, however, one of the state troopers confiscated her camera and deleted some of the photos. Bukowski was charged and convicted of two felony counts of resisting and/or obstructing police earlier this year and put on probation for one year, fined $4,000 and ordered to perform 200 hours of community service.

Although the judge handling the case, Michael Hathaway, has said several times from the bench that the state trooper illegally destroyed evidence, Prosecutor Kym Worthy’s office has never brought charges against him. Assistant Prosecutor Thomas Trzcinski defended the cop’s action, saying it was done to keep the crowd from getting out of control.

That seems a patently ridiculous rationale, since there’s no way people in the crowd could see images on the camera or know that they were being erased. Why single out Bukowski?

A local Fox 2 news crew filmed Bukowski’s arrest; the tape, which we watched being played in court, shows no sign of Bukowski offering any type of resistance. 

News Hits firmly believes that, at best, Bukowski was overcharged; what she did in no way should have been considered a felony offense. 

The jury, however, disagreed. They were prohibited, however, from taking into account the fact that Bukowski was acting as a reporter. Bukowski contends that she was offered a plea deal that would have reduced the charges to a misdemeanor offense in return for admitting guilt, but she refused, continuing to claim that she did nothing wrong.

Bukowski was in court last week — before Hathaway again — with a pair of new lawyers, John Royal and Sharon McPhail, who were seeking a new trial for their 60-year-old client. 

Much of their argument for a new trial is based on the claim that Bukowski wasn’t effectively represented during her first trial. Because of a conflict with her original lawyer, Bukowski obtained a new attorney just 10 days before she was set to go to trial. A request by that new attorney, Emmett Greenwood, to delay the proceedings so that he could become better acquainted with the case file, was denied by Hathaway.

Hathaway, in last week’s hearing, turned down nearly all the reasons posted by Bukowski’s lawyers arguing for a new trial. For example, the defense argued that during the preliminary exam conducted by Judge Beverly Hayes-Sipes, it was ruled that Bukowski should not be prosecuted for merely breaching the crime scene barrier. However, the prosecution was allowed at trial to make that issue a central part of the case against Bukowski.

Hathaway said last week that he was not obligated to abide by Hayes-Sipes’ preliminary ruling.

Subsequent to the trial, Bukowski’s new lawyers obtained a sworn affidavit from former TV newsman and recently elected Detroit City Council President Charles Pugh stating that, in his experience, police routinely allowed reporters — including himself — to cross crime-scene barriers. In effect, Bukowski was just doing what reporters typically do without any consequence.

Bukowski’s original lawyer did not even try to raise that kind of access as an issue in her defense. Hathaway said last week he probably would not have allowed Pugh to testify, even if the defense had attempted to bring him to the witness stand.

It has been Bukowski’s claim all along that hers is a case of selective prosecution, and that one of the reasons Worthy’s office is coming down on her so hard is because of previous reporting that has been highly critical of the prosecutor.

The prosecutor’s office has repeatedly denied retaliation is a motive for pressing this case.

After last week’s hearing, McPhail said that she will again raise the issue of Pugh’s affidavit with Hathaway, saying that the judge is missing a fundamental point. For Bukowski to have been convicted of a felony, it would be necessary to prove she intentionally violated the law,  McPhail told us. But, if reporters are indeed routinely allowed to enter a crime scene, then that sort of intent was not possible to prove.

There was one point on which Bukowski and her lawyers did win, if not an outright victory, at least the opportunity to be heard further. They argued that a surprise rebuttal witness, called just before the case went to the jury, was improperly allowed to take the stand.

That witness, a security guard named Karl Scales, testified that he observed a “young lady” cross the crime scene tape. That testimony was particularly damaging because he was the only person other than a police officer to make that claim. As Trzcinski told the jury, Scales had no reason to lie because he “had no horse in this race.” (At least four other people, according to sworn affidavits, claim that Bukowski did not cross the tape.)

The problem is that the defense was never notified by the prosecution that this witness even existed, let alone that he would be called to testify. 

“The prosecution thereby violated the statute requiring it to identify to the defense all … witnesses as they become known to the prosecution,” Bukowski’s lawyers argued in court filings. “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.”

The prosecution claimed it properly used Scales.

To his credit, Hathaway allowed that he might have erred in allowing Scales to take the stand. He set a January hearing date to zero in on that issue.

Whatever he decides then, however, is unlikely to be the last word. It is an almost certainty, said Royal after last week’s proceeding, that whichever side loses on the question of a new trial will take the case to the court of appeals.

No one would ever deny Diane Bukowski is a dogged and tenacious reporter. 

She’s now proving to be the same as a defendant.

News Hits is edited by Curt Guyette. Contact him at 313-202-8004 or NewsHits@metrotimes.com.

Bukowski appeal moves ahead

She was sentenced to probation, community service and fines following a trial ending May 1 on two felony counts of resisting and obstructing a police officer.

In a hearing Friday, Nov. 20, trial Judge Michael Hathaway granted Bukowski’s motion for an evidentiary hearing and scheduled it for Dec. 23.

“It was a significant event in the process of vindication,” Royal said following the hearing.

Her lawyers argue that Bukowski did not receive effective representation, was sandbagged at trial when the prosecutor presented a last minute witness the defense had no knowledge of, and was tried on charges dismissed at the preliminary hearing.

Bukowski was tried on charges stemming from a doubly fatal accident following a police chase of a motorcyclist and a pedestrian hit during that chase, Nov. 4, 2008.

One of the strongest issues on appeal, Royal said, was that Judge Beverly Hayes-Sipes, who presided at the preliminary hearing, dismissed all charges against Bukowski that crossing the yellow accident scene tape constituted resisting and obstructing. Hayes-Sipes bound Bukowski over only on allegations that she had physically resisted being arrested and hand-cuffed.

The prosecutor never appealed the Hayes-Sipes ruling, Royal said, yet at trial, Assistant Prosecutor Thomas Trzcinski tried her and the judge instructed the jury to consider whether she had crossed the yellow tape as constituting resisting and obstructing.

Crossing the yellow tape was an issue that was not properly before Judge Hathaway, Royal said. “No one brought that to the court’s attention. It is one basis for arguing ineffective assistance of counsel.”

Royal explained he thinks that after the prosecutor saw the Channel 2, Fox News video tape of the accident scene, which caught the arrest and handcuffing of Bukowski on tape, that there was, from his perspective, clearly no evidence of Bukowski resisting the officers.

Bukowski’s attorneys want to interview the cameraman who took the video since Judge Hathaway commented during trial, while the jury was out, that it looked to him that Fox 2 was also inside the yellow tape.

Royal and McPhail argue selective prosecution, why was reporter Bukowski prosecuted while other media outlets and reporters routinely cross the yellow line.

During trial, Prosecutor Trzcinski brought in a surprise last-minute witness, security guard Karl Scales who testified that he saw Bukowski behind the yellow tape. Neither the defendant nor her lawyer were aware of Scales’ existence. His name had not appeared in any police reports or added to the list of res gestae witnesses.

Producing Scales, without letting the defense know beforehand, is a clear violation of the law, Royal and McPhail argued.

Bukowski’s rights were also denied because she could not present to the jury her role as a reporter at the scene, could not get an extension of time to hire a new attorney after her first attorney quit, nor could the new attorney get time to adequately prepare for trial.

An affidavit from former Fox News reporter and current council president-elect Charles Pugh states that reporters routinely work behind yellow police tape.

 Bukowski was reporting for The Michigan Citizen on a fatal high-speed chase by state troopers Nov. 4, 2008 when she was arrested. She was convicted of two felonies May 1 and sentenced to one year probation and a $4,000 fine. Supporters of Bukowski, the police victims, and freedom of the press are asked to pack the courtroom.

“The fight for justice for James Willingham, a father of 10 with a large and loving family, and Jeffery Frazier, a beloved resident of the E. Davison neighborhood where the men died because troopers violated vehicle pursuit rules, must also continue,” said Bukowski. ”The one-year anniversary of their deaths as the holidays approach is an extremely painful time for their families.”       

James Willingham

Jeffery Frazier

 Prominent, skilled appeals attorneys Royal and McPhail filed hard-hitting briefs. They say 36^th District Court Judge Beverly Hayes-Sipes did not bind Bukowski over during her preliminary exam on  the charge central to the jury’sconviction: that she crossed a yellow police caution tape to take photos, which she denies. City Council President-Elect and long-time reporter Charles Pugh has executed an affidavit swearing that it has always been common practice for police to allow media, including himself, to cross caution tapes. Raw Fox 2 video of Bukowski’s arrest showed clearly that she did  not assault, batter, wound, resist or obstruct the troopers as charged. 

Charles Pugh

Hathaway precluded testimony on Bukowski’s role as a reporter at the scene, and failed to properly instruct the jury of her First Amendment constitutional rights.“The U.S. Supreme Court has held that newsgathering falls within the protective ambit of the First Amendment and has provided greater insulation from liability to persons who are gathering the news,” say Royal and McPhail. They also cite prosecutorial and judicial misconduct on Trczinski’s and Hathaway’s parts, respectively. 

PACK HATHAWAY’S COURT!  Freedom of the Press!

FRIDAY, NOV. 20, 9 A.M.

Rm. 501  Frank Murphy Hall  (Gratiot at St. Antoine, Detroit)

Funds are urgently needed to compensate the attorneys for many hours of work and the pursuit of an appeal if Hathaway rules against Bukowski.. Checks may be made out to The Committee to Defend Diane Bukowski and Freedom of the Press, c/o The Michigan Citizen, 1055 Trumbull, Detroit, MI 48216.

For more info, call Atty. Royal, 313-962-3738 ext. 17; Diane Bukowski 313-825-6126. 

Affidavit of Charles Pugh

Wayne County Prosecutor Kym Worthy

The Michigan Citizen

  By T. Kelly and staff

 DETROIT — Armed with letters of support from citizens and lawyers alike, bolstered by a throng of supporters packing the court, Diane Bukowski’s new attorneys John Royal and Sharon McPhail argued successfully for the Michigan Citizen reporter’s freedom as they mapped preliminary appeal arguments before Judge Michael Hathaway, June 1.

Convicted by a jury last month of two felony counts of resisting and obstructing police, Bukowski faced up to two years in jail. She received one year probation, a $4,000 fine,  and 200 hours of community service.   

“This is an attack not just on me, but on Black-owned media, and the right of the people of Detroit and other Black majority cities to receive coverage of events crucial to their survival,” said Bukowski after her sentencing. “I have covered trials for years, watching Detroiters railroaded because they cannot afford their own attorneys and because they face mainly suburban white juries who believe the police. Police and state troopers are on the wild because no one, particularly Kym Worthy, checks them.”

Hathaway also said he was “astounded” that Bukowski failed to disclose that one of her two character witnesses at trial, Attorney Jerry Goldberg, was her ex-husband. Calling it an “important piece of information,” Hathaway said it could weigh on credibility. Bukowski said later that the two had not been together for 28 years, and that they maintain professional contact because Bukowski covers stories about events sponsored by organizations like the Moratorium NOW! Coalition against Foreclosures and Evictions, of which Attorney Goldberg is a leader.

Hathaway also said “in fairness,” he had to note that some of the troopers’ testimony was refuted, concluding, “neither side’s hands are clean.” A Fox 2 news videotape of her arrest showed that Bukowski did not resist at all, although troopers testified that she “struggled all the way to the car.” One trooper deleted photos from her camera, felony destruction of evidence, but was never prosecuted.

Bukowski was arrested Nov. 4 while covering a fatal accident scene following a high-speed chase by Michigan State Troopers on East Davison.Those troopers violated numerous vehicle pursuit rules, resulting in the deaths of two Detroiters. They have not been disciplined or charged.

Attorneys Royal and McPhail said the conviction will be appealed and the merits of the issues are “substantial.” While the trial transcript is not yet available, the attorney said there are many appellate issues.

First and foremost are violations of Bukowski’s First Amendment rights during her arrest and at trial. The judge partially granted a motion by the prosecution to preclude testimony relating to Bukowski’s role as a reporter, and did not instruct the jury of her expanded rights at the scene as a new-gather.

Royal said that the preliminary exam transcript showed that 36th District Court Judge Beverly Hayes-Sipes “specifically ruled that the resisting and obstructing statute” did not encompass the crossing of the yellow-tape boundary.

“You are not charged with interfering with the investigation. You are charged with obstructing, assaulting and resisting police officers in the performance of their duties,” the judge ruled. The judge also noted that the prosecutor wanted to charge Bukowski with endangering the officers simply by being on the scene. Hayes-Sipes said that was not “the intent of this particular statute.” She bound Bukowski over on two counts for the two officers who physically came in contact with her during handcuffing.

Royal said the prosecutor also failed to let the defense know of a key witness presented during rebuttal. According to the jury foreman, it was the testimony of that surprise witness, a security guard, that convinced the jury that Bukowski had crossed the yellow tape.

Another basis for appeal stems from the breakdown in the attorney-client relationship between Bukowski and her first attorney. Several weeks before the trial, Attorney Arnold Reed filed a motion to withdraw from defending Bukowski. Both sides agreed that the attorney-client relationship had soured and the prosecutor did not object to Reed’s withdrawal. However, the judge refused to grant the motion for fear the trial date would have to be adjourned. With only 10 days to prepare, Bukowski’s new attorney filed two motions to adjourn the trial to allow more time to prepare. which were deneid.

Royal and McPhail said two attorneys helped in preparing the appeals memorandum, Attorney Kathryn Bruner James, of Goodman and Hurwitz; and Attorney Tim Holloway.

Doll's Go Kart Track owner Ron Hereford, with young customers.

Fri. June 5 12noon-9pm, 4455 Oakman s. of Grand River

for Michigan Citizen Reporter Diane Bukowski’s Legal Appeal

Bring your kids and grand-kids!!

Refreshments, games, good talk

Diane Bukowski, a reporter for The Michigan Citizen newspaper for nearly 10 years, was framed up by Michigan State troopers and Wayne County Prosecutor Kym Worthy when she photographed the aftermath of a fatal police chase last Election Day, Nov. 4. The chase, down East Davison, took the lives of Detroiters James Willingham, a father of 10, and Jeffery Frazier, who was beloved in his community.

Worthy first brought FIVE FELONY COUNTS of “assaulting, battering, wounding, resisting, obstructing or endangering” troopers at the scene. The charges were reduced to two counts at Bukowski’s preliminary exam. But on May 1 a jury composed mainly of suburbanites convicted her, despite having seen a Fox 2 News videotape that showed her innocence, depicting her arrest from beginning to end. She was sentenced to one-year probation and over $4000 in fines June 1. Her appeals attorneys are John Royal and Sharon McPhail.

Bukowski has covered cases of police brutality, including killings, rapes and frame-ups, for the last ten years, earning Worthy’s enmity because she also covered complaints by victims’ families when Worthy refused to criminally charge the perpetrators. Bukowski has broad support from journalists, public officials, union officers, community groups and people across Detroit, the state and the country.

All proceeds to the Committee to Defend Diane Bukowski & Freedom of the Press. Donations of food, games, etc. welcomed. Drop off $$$ donations if you can’t stay.

For more info, call Cornell Squires, legal Coordinator for the Original Detroit Coalition against Policy Brutality, 313-460-3175.

Diane being arested

Diane Bukowski, a long-time photojournalist with the Detroit-based, Black-owned Michigan Citizen newspaper, was convicted May 1 of two felony counts involving “assaulting, battering, wounding, resisting, obstructing, or endangering” police. Each count carries a maximum of two years in prison.

Bukowski’s sentencing is set for Monday, June 1, 2009 at 9 a.m. in front of Judge Michael Hathaway, Room 501, Wayne County Circuit Court, 1441 St. Antoine (at Gratiot), Detroit, Michigan 48226.

Her case is part of growing attacks on reporters and the First Amendment in the U.S. Bukowski was arrested last Nov. 4 by Michigan State Troopers while taking photos at the scene of a high-speed police chase on Detroit’s east side. The chase ended with the deaths of motorcyclist James Willingham, 41, a father of 10, and pedestrian Jeffery Frazier, 34, a beloved member of the community.

Troopers John Hetfield and James Wojton violated MSP vehicle pursuit rules. Their siren was not on.They chased Willingham for a traffic offense (speeding) through a densely populated and trafficked area at 3:30 p.m. as three nearby schools were letting out. The troopers have not been disciplined or charged.

Troopers Andrea Barber, Matthew Kellar and Eric Byerly arrested Bukowski 2 ½ half hours after the chase shortly after she arrived on the scene. Byerly admitted destroying evidence, a felony, by erasing Bukowski’s photos. He has not been charged.

Instead, Wayne County Prosecutor Kym Worthy charged Bukowki with five felonies. Bukowski is well-known for her coverage of unjustified killings, rapes and brutality by police and troopers, and Worthy’s failure to prosecute Detroit police for these offenses.

Three counts were dismissed at her preliminary exam. But, after a five-day trial in front of a predominatly suburban jury, Bukowski was convicted of the remaining two counts. The prosecution earlier moved to keep her role as a reporter and the issue of the First Amendment out of the trial.

The jury saw Fox 2 News’ raw footage of Bukowski’s arrest from beginning to end. It showed none of the alleged offenses. The prosecutor focused solely on false allegations that Bukowski crossed a yellow caution tape. She was 70 feet from any evidence including yellow tarps covering Willingham’s dismembered body as she took the photos.

To support Bukowski:

1. Send letters to
Judge Hathaway
c/o Attorney John Royal,
415 Griswold, Ste. 1724,
Detroit MI 48226.

Letters should focus on Bukowski’s accomplishments in the community, not her guilt or innocence. Royal and his co-counsel Attorney Sharon McPhail are handling her appeals.

2. Attend the sentencing June 1.

3. Contribute to
The Committee to Defend Diane Bukowski and Freedom of the Press
c/o The Michigan Citizen,
1055 Trumbull,
Detroit, MI 48216.

The troopers pursued Willingham and his partner from Detroit’s Davison Freeway through a residential, densely populated neighborhood, another violation of MSP rules. As nearby schools let out at 3:30 p.m., Willingham collided with pedestrian Jeffery Frazier, 34. Willingham flew off his cycle into a tree and then a fence surrounding a church and grade school parking lot. Frazier flew into the path of oncoming traffic..

According to his autopsy report, Willingham’s right arm and shoulder were severed, his skull and brain shattered, and all his ribs broken, among other injuries. Frazier sustained multiple rib fractures and a severely lacerated liver and kidney, but was still alive at the scene. His distraught family, who lived nearby, tried to go to him.

“The troopers threatened to shoot me,” said his brother Emmanuel Frazier. “They also stopped my mother from going to her son.” Frazier died en route to the hospital without the loving presence of his family. Willingham’s sister Roshell Shoulders tried to go to her brother’s body. A trooper jerked her arm up behind her back and nearly arrested her before her husband intervened. Detroit police later harassed Willingham’s young cousins, claiming Willingham was riding a motorcycle stolen from a Detroit cop.

MSP Second District Commander Harold Love later said the troopers “were never under any investigation.” They have not been disciplined or charged for the chase.

“He loved doing that,” said Frazier’s mother, Charlotte Ann Frazier. “He graduated from the Burger Center in Garden City, a school for autistics. All his teachers were so proud of him. He never missed one day of school, and he never missed one Sunday in the Open Doors Baptist Church and Greater Concord church. He was our angel.”

Frazier had three brothers and two sisters. He was also a friend of some of Willingham’s family members. Both men grew up in the neighborhood where the chase took place.

A doctor from an adjacent clinic, whose grounds Frazier used to clean up, tried to save him as he lay dying on the street. A friend of Willingham said he found cans and bottles in the street near where Frazier was hit, after he had been taken away by EMS.

“When his brother died in 2003, he got so depressed he went on medical and never went back. Instead, he became a stay at home dad, so that I could go to school and work. He took his skills from the plant and worked on cars for friends. He replaced a whole engine for one of our neighbors, and only charged her $100. He went to help a co-worker of mine at 1:30 a.m. when her car broke down, and replaced a starter belt for only $30.”

Carter said Willingham looked after every one of his children. She said he was extremely proud of two of his older children who are in college. One of those children exhibited his art frequently in Birmingham, and Carter said her fiancée attended every one of those art fairs.

She said that ironically, he recently saved a young Brownstown man’s life.

“A car sideswiped James, and he followed the car for about five miles,” said Carter. “It turned out they had kidnapped a 19-year-old, beat him with a bat, put him in the trunk of the car, and were about to shoot him when James pulled up and saved him. He was a man who never said no.”