Add internal affairs investigators to the list of people — priests, spouses, lawyers — you can talk to without fear that your words will be used against you in court.
Douglas County District Judge Duane Dougherty ruled that a man who was kicked and gang tackled by officers will not be able to refer in court to the Omaha Police Department's internal affairs investigation into the controversial arrest.
Robert Wagner — whose violent takedown prompted the firing of two police officers — has no plans to appeal the judge's decision, his attorney said.
Rather, Wagner, 36, is anxious to show that he did not hit anyone before the officers gang tackled him, attorney Glenn Shapiro said.
"Robert wants his day in court," Shapiro said.
He may get a week in court. His trial on charges he assaulted a police officer is scheduled to begin Monday and could last most of the week, attorneys say.
In May, Wagner had gone to Creighton University Medical Center after learning that his cousin, Jimmy Levering, had been shot and fatally wounded.
As he left the hospital, Wagner got into a verbal confrontation with officers outside Creighton University Medical Center.
A surveillance videotape never showed Wagner hitting an officer; prosecutors allege that happened off-camera.
Videotape did show Wagner recoil from officers, then get tackled, kicked numerous times and stunned with a Taser.
Shapiro said Wagner exchanged words with the officers but never threw a punch.
The attorney had hoped to compare officers' testimony at trial to their statements to internal affairs investigators probing Wagner's arrest. Then-Omaha Police Chief Alex Hayes fired Officers Jackie Dolinsky and Aaron Pennington after reviewing videotape of the melee.
Interim Omaha Police Chief David Baker and Deputy City Attorney Tom Mumgaard objected to Shapiro's attempt to use any part of the internal affairs investigation. Mumgaard argued that state law guards the privacy of statements made in internal investigations.
Opening such files to court scrutiny would jeopardize the department's ability to investigate and improve itself, Mumgaard said.
The judge agreed. Dougherty ruled that state law guards certain communications "when the public interest would suffer by the disclosure." Internal affairs documents are among those cases, Dougherty said.
The judge said Shapiro has other means to evaluate a witness's veracity: namely, by taking a witness's deposition before trial.
Mumgaard said the ruling was important to guard the integrity of the process. Citizens who make complaints to internal affairs investigators should be able to do so without fear that their comments may be disclosed.
Internal affairs "isn't there to cover things up or keep things secret," he said. "It's not there to protect the police. It's there to improve the department and serve the public interest."
Contact the writer: