A police officer talking to his department's internal affairs investigator is no different from a person speaking with his priest, a city attorney argued Monday.
Both conversations take place in confidence. Both conversations should remain private — even if the information gleaned could mean the difference between a defendant going to prison or going free, the city attorney said.
Deputy City Attorney Tom Mumgaard made the clergy comparison Monday as he vehemently opposed a defense attorney's attempt to cite portions of an internal affairs investigation of the controversial takedown and arrest of Omaha resident Robert A. Wagner outside Creighton University Medical Center.
Mumgaard called the secrecy of internal affairs probes essential so officers can feel free to talk plainly and police departments can get the information needed to improve.
"There's bigger and better purposes at work here," Mumgaard said. "(Internal affairs) exists to make the police department better. It exists to better the community, to better law enforcement, to better the justice system."
The issue of just how secret a police department's secret investigations should be came to a head Monday as defense attorney Glenn Shapiro argued that he should be able to use statements given to Omaha internal affairs investigators who probed the violent arrest of Wagner last May.
Distraught over the shooting death of a relative, Wagner reportedly lashed out at officers just outside the medical center — allegedly striking one. Police officers then gang-tackled Wagner and struck him several times while he was on the ground.
A videotape of the melee emerged — and then-Omaha Police Chief Alex Hayes ordered an internal affairs investigation of officers' conduct.
One officer could be seen kicking Wagner — and another could be seen using a stun gun on him — while Wagner was pinned.
The city fired two of the officers involved. Meanwhile, Douglas County prosecutors went forward with felony assault charges against Wagner, alleging that he punched the officers before the gang tackle.
Last month, Shapiro asked to review internal affairs reports as he prepared for Wagner's trial. Judge Duane Dougherty allowed Shapiro to do so but deferred a ruling on whether the reports would be allowed in court.
With Wagner's trial set for next week, Shapiro argues that he should be able to test officers' courtroom testimony against their statements to internal affairs.
Mumgaard said such a move would destroy the foundation of internal affairs investigations.
Police officers — unlike the general public — have no right to refuse an interview with an internal affairs investigator, Mumgaard said. If officers don't talk to the internal affairs unit, they risk termination.
In fact, he said, the entire internal affairs process is designed to encourage communication so a police department can adequately examine itself.
City officials feel so strongly about its importance that Mumgaard vowed to immediately appeal if Dougherty allows Shapiro to use the reports.
"This is no different than asking you to order the local priest to turn over the notes he made when some potential witness talked," Mumgaard said.
Dougherty, who took the issue under advisement Monday, asked Mumgaard whether the secrecy of an internal affairs investigation trumps a defendant's right to present evidence that might lead to an acquittal.
"It does," Mumgaard said. "Same as the marital privilege. Same as the clergy privilege."
Prosecutor Jim Masteller, a deputy Douglas County attorney, said Shapiro has another avenue to test any witness's veracity: a deposition.
Shapiro agreed that he could ask witnesses to submit to sworn depositions. However, he argued that he should be able to test an officer's deposition testimony against previous statements to internal affairs to make sure that they were consistent and credible.
Shapiro said something much larger than the value of internal investigations is at stake: his client's freedom.
"It doesn't sit well with me that an innocent person could go to jail if the state isn't required to disclose information that may be exculpatory," Shapiro said. "It just doesn't sound right."
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