“The case at bar raises important issues, including whether the First Amendment rights to freedom of the press are being abridged by a prosecution that is pursued for retaliatory or other improper purpose,” said ACLU attorney Mark Fancher in a brief supporting a pre-trial motion to dismiss charges.
He said it raised “questions about why the defendant is being prosecuted zealously given the absence of allegations that any real harm in the way of physical injuries or property damage resulted from her actions. Such perceptions and questions can chill a journalist’s aggressive pursuit of information that the Constitution’s framers believed was essential to a healthy democracy.”
Wayne County Circuit Court Judge Michael Hathaway denied the motion to dismiss, but later partially granted Trzcinski’s motion asking “that this Court preclude argument, the asking of questions, and the introduction of any other evidence purporting to show that defendant was acting in her capacity as a reporter during the events in question.”
Bukowski’s jury included only two Blacks and two Detroiters. During the five-day trial, Troopers Hetfield and Wojton testified at length although they left the scene long before Bukowski arrived. Hathaway barred her attorney from cross-examining them on MSP vehicle pursuit rules, and cut off most of Bukowski’s direct exam.
Several troopers said Bukowski crossed a tape and came close to the motorcyclist’s arm, then resisted arrest “all the way to the police car.” Kellar admitted on cross-exam that he noted a gap in the tape in his written report. Barber falsely claimed Bukowski “was standing in the blood” of the motorcyclist, and lifted the tarp to take a picture of his arm. Trooper Jonathan Henry admitted on cross-exam that he had only ticketed a bystander in an angry crowd for “disorderly conduct,” although he “head-butted” Henry.
Three times, the jury saw FOX 2 News’ raw footage of Bukowski’s entire arrest, which showed her a long way from the motorcyclist’s remains, and compliant with her arrest. But Hathaway instructed the jury that “obstruction” included “disobeying police orders,” and that the caution tape was a written order.
The prosecution put on a final surprise rebuttal witness, an illegal move called “sandbagging.” He said Bukowski crossed the tape although he also said she stood “a distance” away from the remains. According to the jury foreman, his testimony was the decisive factor in the jury’s guilty verdict.