LITTLE ROCK — The slow-moving federal trial of an Internal Affairs investigator for the West Memphis Police Department — accused of coercing two dispatchers to cover up an officer’s assault on an obnoxious suspect — came to a standstill Thursday.
After a federal prosecutor said in front of jurors that defendant Lester Ditto would have an opportunity to take the witness stand himself and tell jurors his side of the story, Ditto’s attorney immediately protested that the remark was cause for a mistrial, and the judge called a recess.
Defense attorney Erin Cassinelli told the judge that the remark undermined Ditto’s right to be presumed innocent if he decides not to testify — something she wasn’t going to decide until the government rests its case.
Several minutes later, defense attorney Jack Lassiter asked U.S. District Judge James Moody to dismiss the case outright, which would remove any opportunity for a retrial.
“We do not accept his explanation that this was a mistake,” Lassiter said, referring to Henry Leventis, an attorney with the U.S. Department of Justice’s Civil Rights Division in Washington, D.C. “Any prosecuting attorney on his second day in court knows better than to do that.”
Leventis objected, acknowledging that he shouldn’t have made the remark in front of jurors but insisting it was an unintentional slip “on an issue we’d been discussing throughout the day,” out of earshot of jurors.
Lassiter said that if Moody rejects the dismissal request, the defense team will seek a mistrial, which would allow the case to be retried.
Without giving jurors an explanation, Moody dismissed them for the weekend, telling them to call a court information line before Monday for further instructions.
He agreed to give attorneys time to write briefs on the dismissal and mistrial issues, and then to reconvene at 11 a.m. today to decide what step to take.
The issue arose on the fourth day of the trial during Cassinelli’s cross-examination of the government’s sixth witness.
Earlier, the man whose accusations resulted in federal witness-tampering charges being brought against Ditto was cross-examined about his testimony Wednesday that another officer choked him while his hands were cuffed behind his back on June 14, 2010.
That officer, Scott Mc-Call, was convicted in April by another federal jury of a misdemeanor civil-rights violation for briefly choking Michael Young, who had gone to the department to complain about a traffic citation his daughter received.
Young, 47, denied yelling inflammatory remarks, such as that the May 20, 2010, shooting deaths of two popular West Memphis police officers — Sgt. Brandon Paudert, the chief’s son, and officer Thomas “Bill” Evans — were “deserved.” Leventis contends that those remarks enraged McCall to the point of abandoning his professional demeanor and wrapping both hands around Young’s neck while Young sat on a chair in the lobby of the Police Department.
Young was handcuffed while awaiting transfer to jail because he had been arrested minutes earlier on a disorderly conduct charge, for which he was later convicted, over other inflammatory remarks he made in the lobby.
The Department of Justice contends that when Ditto, the department’s civilian Internal Affairs director, began investigating Young’s complaint about being choked, Ditto pressured the two dispatchers, who witnessed the choking and helped pull McCall off Young, to say that it didn’t happen.
The dispatchers initially gave recorded statements to Ditto that didn’t mention the choking. Later, after the FBI began investigating Young’s complaint that his civil rights had been violated, the women told FBI agent Phillip Spainhour that they had indeed seen McCall choke Young but had lied about it on the Internal Affairs recording out of fear of losing their jobs. They said Ditto told them that there was no camera in the lobby to record the incident.
Young, a barber for 18 years who owns his own shop, testified Wednesday that when McCall flew into a rage and wrapped both hands around his neck, “I looked directly into his eyes. He was sweating, saying, ‘You hear me, boy? You hear me?’ I couldn’t say anything.”
Young described “two ladies” running into the lobby from the nearby dispatchers’ room and grabbing Mc-Call and trying to calm him down. He said a plainclothes narcotics officer entered the lobby and walked him down the hall, away from McCall, while other officers who had rushed to the area held Mc-Call back.
Young said he told an officer who drove him to the jail that he needed to go to the hospital because he’d been choked, but the officer said he could take himself to the hospital once he was released from jail.
That’s just what he did, Young said, producing medical records showing he was examined for “contusions of the neck” but had no serious injuries, and that he was given pain medication.
Young said a friend who is a Crittenden County sheriff’s deputy later advised him to report the incident to the Police Department’s Internal Affairs unit and to the Arkansas State Police. The state police referred him to the FBI.
Young complained that during the internal investigation, Ditto didn’t ask him any details about the choking and then never followed up by interviewing his wife, who was with him before he was arrested. He said the only other communication he received from Ditto was a letter three months later declaring his allegations against McCall “unsubstantiated.”
Spainhour testified Wednesday that when he confronted the dispatchers about inconsistencies between their recorded statements given to Ditto and the version of events they told him, “their story changed, and they provided me with reasons they gave false statements,” namely, their fear of losing their jobs.
He said one dispatcher told him that Ditto told her, before she made her recorded statement, that Young was a “piece of crap,” and that the department was a “brotherhood.”
Arkansas, Pages 9 on 07/20/2012