An assistant county attorney on Wednesday asked a police officer on the Louisville Police Merit Board to recuse himself from hearing the rest of the case of former Detective Crystal Marlowe, saying the member had already made up his mind about reinstating her.
Officer John Keeling declined, and William Warner said he would file a motion asking the board to remove the officer from the case, in which Marlowe is accused of wrongfully charging several suspects and failing to properly investigate.
Warner told board members at the end of the eighth day of testimony in the case that Keeling improperly opined about the quality of an internal investigation into the alleged wrongful arrest of Tiffany Washington, who the department concluded was 130 miles away in Henderson County on the night of a 2007 robbery in which she was charged.
During questioning of Sgt. Bridget Thomerson, who conducted the department's administrative internal investigation of Marlowe, Keeling asked what evidence she had uncovered that Washington was in Henderson - and how Police Chief Robert White determined in his January termination letter that a "thorough investigation" by the detective would have determined Washington wasn't in Louisville "and therefore could not have been involved in the crime."
Thomerson acknowledged that she did not look at any evidence showing Washington was in Henderson, but instead focused solely on Marlowe's investigation, finding nothing in the former detective's case file that tied either Washington or a co-defendant, Vaughn Carter, to the robbery.
"There was nothing there at all, nothing," Thomerson said. "... There was no proof. "
The grand jury chose not to indict Washington after, according to Marlowe's earlier testimony, a prosecutor decided not to press for an indictment because of the limited time Washington would have had to drive from Henderson to Louisville. Carter's case was dismissed, though court records only say that Marlowe repeatedly did not show up for court.
Washington, a former University of Louisville student with no criminal history, has two receipts from a Henderson mall hours before the crime and a video of her at a concert the morning of the robbery as well as witnesses who will verify she was not in Louisville at the time, according to Ryan Vantrease, an attorney who is representing Washington and eight others in wrongful arrest lawsuits against Marlowe and the department.
Keeling, however, told Thomerson that White's termination letter was wrong, at least as far as information on whether Washington was in Louisville when the crime occurred.
"Would you agree that the chief had some bad information here in his termination letter?" Keeling asked, though Warner soon objected to the line of questioning, saying no one has been questioning Washington's alibi during the hearings.
The board's chairman, the Rev. Alex Moses, said Marlowe's case does not hinge on Washington's whereabouts, but Keeling argued the information from White "is bad and shouldn't even be" included.
" ... We're supposed to determine whether (Chief White) was provided with enough or proper information," Keeling said. "Well he sure wasn't on this one."
With that, Warner asked Keeling to recuse himself.
Keeling was asked by the board's attorney to confine his remarks to questions of witnesses and not issue statements about the proof until the case was concluded.
Marlowe's attorney, Mary Sharp, defended Keeling and said she believed his questions were reasonable and, in fact, that she felt another board member had made up his mind to not reinstate Marlowe "from the first day," but that she trusted the integrity of the board.
Sharp did not identify the board member. There are four members hearing the case, including Moses, Keeling, David Hatfield and Allison Grant.
After the hearing, Keeling said he had no plans to recuse himself and had not made up his mind about reinstatement.
Warner said Keeling's statement is not allowed and he would present case law to support his request that the officer be removed.
"It's like a juror getting up in the middle of a trial and saying, 'I've made up my mind and then sitting back down,' " Warner said in an interview.
Also on Wednesday, Thomerson accused Marlowe of giving different information to the merit board than she gave her during the investigation.
For example, Marlowe testified to the board repeatedly that she didn't understand proper photo pack identification procedures and did not get the needed training. Thomserson, however, said Marlowe never mentioned, despite hours of interviews, that she didn't understand the proper way to use photo packs.
Thomerson also said she was surprised to find out that Marlowe had not turned over all of her case files, including her file of Robert Mitchem, whose case was dismissed May 11, 2009, after a prosecutor with the Jefferson Commonwealth's Attorney's Office told the judge that the evidence had never been produced.
Marlowe had said two witnesses identified Mitchem as the man who robbed them at gunpoint.
But Mitchem's picture wasn't among those Marlowe showed to the victims in the photo packs turned over to prosecutors. In investigating the case, Thomerson said Marlowe couldn't locate her original case file, believing it was destroyed by water damage while in her vehicle's trunk.
The Mitchem case was later located with several other files and did not include any photo identification in which Mitchem was identified as the suspect. Marlowe said the proper photo identification form "may have been destroyed in a copy machine," Thomerson testified.
The merit board will hear the remaining testimony on Aug. 9.