Attorneys John Royal, recognized as one of the state’s top appellate attorneys, and Sharon McPhail, previously a progrssive City Councilwoman and General Counsel for the City of Detroit, filed a 50-page brief with the Michigan Court of Appeals July 28 asking that reporter Diane Bukowski’s two felony convictions be vacated, or a new trial ordered.
Bukowski, who was reporting for The Michigan Citizen, was arrested Nov. 6, 2008 while photographing the aftermath of a reckless State Police chase on East Davison that took the lives of Detroiters Jeffery Frazier and James Willingham. Wayne County Prosecutor Kym Worthy retaliated against Bukowski for her prolific coverage of police brutality cases and Worthy’s refusal to prosecute any killer cops from Detroit, by charging Bukowski with five felonies carrying ten years in prison. Bukowski was convicted June 1, 2009 by a majority suburbanite jury of two charges. She served a one-year probation and paid more than $5,000 in fines.
The brief cites the failure of Judge Michael Hathaway to “either allow argument regarding defendant’s constitutional rights as a newsgatherer,” or to instruct the jury regarding those rights. Hathaway granted a motion by Asst. Prosecutor Tom Trczinski barring defense arguments related to the First Amendment. The brief also cites State Trooper Byerly’s deliberate destruction of evidence; he admittedly erased two photographs Bukowski had taken; Hathaway had warned him he might be charged but he never was.
Royal and McPhail also contend that Bukowski was never bound over on charges of crossing a crime scene tape. Trzcinski made the alleged action, the centerpiece of the trial, although Bukowski and later, one of the prosecution’s own witnesses, denied she did so. Trczinski knew he could not prove charges that she had “battered, assaulted, resisted, obstructed” or otherwise endangered the two troopers who arrested her. Raw footage of Bukowski’s arrest provided by Fox 2 News showed none of those actions. (See “Links.”)
”The trial court repeatedly injected itself into the trial, by repeatedly demeaning defense counsel [Emmett Greenwood] in the presence of the jury; by making and sustaining its own ojections to the defense examination of witnesses . . . . The trial court improperly took on the role of the prosecution,” Royal and McPhail contend in the brief. They also cite demeaning personal remarks Hathaway and Trzcinski continually directed at Bukowski, and at The Michigan Citizen, among numerous other issues.
They have included 153 instances of case law in support of Bukowski’s appeal, along with violations of state statutes, court rules, and the State and U.S. Constitutions.
“I profoundly thank Attorneys Royal and McPhail for the hundreds of hours they put into motions for reconsideration before Judge Hathaway, and the arduous work that produced this excellent brief,” Bukowski said. “They have so far received little compensation for their dedicated work. I also profoundly thank my grass roots supporters, especially those who packed the courtroom during every hearing on my case. Members of Call ‘em Out in particular showed up every time, and they buoyed my spirit tremendously through this ordeal. I look forward to victory at the Appeals Court level.”
Royal said the prosecutor will file her brief in response next, after which he and McPhail will file a reply brief. Bukowski said the community will be notified once a date for the appeals hearing is scheduled.
“Mr. Frazier, Mr. Willingham, and their families, are the true victims in this case,” Bukowski added. ”Their loved ones are still grieving, and my heart remains with them. The troopers who caused their deaths have never been disciplined or jailed for their gross violations of their own vehicle pursuit rules during this reckless high-speed chase through a densely-populated, poor community. Troopers have continued such chases in Detroit, most recently through a community near the home of Aiyana Stanley-Jones in May. They ended up ramming the car into a tree, and shooting 20-year-old Damion Gayles in the neck as he exited the car, without cause. He fortunately survived. Hundreds of neighbors staged a mini-rebellion afterwards. The police state in which Detroiters live must be dismantled by the people’s action.”
To help compensate attorneys Royal and McPhail for the hundreds of dedicated hours and arduous work they are putting into this case, donations to The Committee to Defend Diane Bukowski, 9000 E. Jefferson #10-9, Detroit MI 48214, are urgently needed. Contact Royal at 313-962-3739 or Bukowski at 313-825-6126 for further informaton.