by Daniel R. Keele
Where does the real problem in the hubbub over the 9-1-1 tapes and body mike audio of Officer Thomas LaValley being released lie? This incident screamed for review of the relevant minutes and motions on the Grover Cannon case, in which he is accused of murdering Shreveport Police Officer Thomas LaValley. This review does not include the transcripts of the proceedings, nor was I in the courtroom at any time. It appears that the defense filed motions, which led to production of the audio/video tapes in question and other materials, including basically every piece of audio or video in the case. That is their responsibility and is in no way unusual.
At one point prior to the preliminary hearing and the grand jury indictment, City Attorney William Bradford and his assistant, Terrell Myles, filed and then appeared on a motion to quash a defense subpoena for case audio and video. The minutes reflect a re-urging of that motion, which meant it was previously denied. It was denied the second time. That’s consistent with the law, which included argument that the material was not subject to subpoena under the public records exception for pending criminal litigation. The DA is the proper party to give the defense the evidence, not a premature end run around the law.
The defense is ultimately entitled to access such audio and video evidence, and as such, after indictment, filed a specific motion for discovery, once again proper, which was responded to by Interim DA Dale Cox, Jr., also in a legally proper manner. Cox filed the audio and video in the record, which was then obtained by media sources including KTBS and the Shreveport Times. The Caddo DA routinely has “open file discovery”, which means that they shouldn’t hide any evidence from the defense, although there is at least one case pending, where there is anecdotal information that a prosecutor did just that, and possibly a second, where allegedly falsified crime lab data may have been used in an investigation to obtain a confession, which fake report was not timely revealed by authorities to defense counsel. These lesser cases will work out, without the impact of a First Degree Murder of a Police Officer misstep.
I still can’t help but wonder why the audio and video weren’t produced between the State and the defense, with only a stipulation of compliance placed in the record. It seems to me that both the defense and the prosecution would have no case with greater interest in complying with the constitutional and statutory requirements of production of evidence, but with at least equal interest in limiting pre-trial public disclosure of evidence that will obviously be used at trial, to guarantee a fair trial. There is interest in this case in North and South Louisiana, limiting where a pool of death penalty qualified jurors may be found. The Caddo DA, Mr. Cox himself, has enough issues with nationwide attention in death penalty cases that this should have been given the utmost thought. There is NO reason I see to have placed this material in the clerk’s file before it became part of the record AS EVIDENCE at trial. Was it necessary or even used at a preliminary hearing? Once again, it doesn’t appear so from the minutes. So why was this audio/video data essentially proffered to the Court of Public Opinion? If ever there was a case in Caddo Parish where everything should be done to preserve the death penalty, isn’t this it?
The likelihood that Dale Cox, Jr. will handle this case by the time of trial is questionable, given the upcoming general election for his replacement as Interim DA. Releasing this audio and video into the wild is, in my opinion, a poor exercise of judgment and a failure to exhaust other less intrusive means to meet legal requirements. There is no doubt much that we won’t know about the communications between prosecution and defense, except what was on the record. There had to be a way to provide discovery, including any exculpatory material, without exposing the evidence prematurely and possibly prejudicially. Why fight a battle over a subpoena for the same thing that you later essentially hand deliver to the media?
All the ballyhoo with KTBS promoting a story and then producing very dignified and limited coverage, contrasted with what appears to be a complete audio download at the ShreveportTimes.com website with little fanfare, might have been avoided with some prosecutorial discretion. If it was exercised and there is an explanation other than “this is how we always do it”, I’d like to hear it from Mr. Cox.
Dale Cox, Jr. does the correct legal thing, but often says the “wrong” thing, as far as public perception goes. Others and I are critical of his reportedly draconian policy of micromanaging his assistants and limiting essential discretion by them in delegated cases. Defense attorneys are rightly concerned that the DA limits production of what might be or lead to exculpatory evidence, but this is between the government and the defendants, not the media.
We need and are going to get an elected DA very soon, but it won’t be soon enough to avoid the harm that just occurred in the LaValley case. Were Dhu Thompson or James Stewart consulted on this, since this can is being kicked down one of their roads, and if so, what did they say? That may be the $64,000 question.
Daniel R. Keele
Attorney at Law