Marvin Booker video: DA's office on why it can't release footage of man who died in Denver jail

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Marvin Booker.
A video of Michael DeHerrera being attacked without apparent provocation by a Denver cop has gotten plenty of attention, with Mayor John Hickenlooper calling for the FBI to review the case after his manager of safety declined to sack the officers involved. But another video -- of Marvin Booker, who died in Denver jail on July 9 -- hasn't been made public, despite media demands. And the DA's office is getting frustrated explaining why not.

Last week, Booker's family called for the video to be released, and a few days later, a Denver Post editorial echoed this sentiment.

But that's not going to happen -- at least not right away -- as Denver District Attorney's Office Lynn Kimbrough explains in one of her periodic "Setting the Record Straight" features. This unusual approach to countering what the DA's office sees as misinformation in the press was the subject of a July 2004 Message column. See the latest offering below, along with a February letter from DA Morrissey to Denver Police Chief Gerald Whitman explaining the pre-trial-publicity rules.

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Kynn Kimbrough.
The bottom line, says Kimbrough, is that Denver DA Mitch Morrissey "would be breaking the rules" by issuing the video, since the investigation into Booker's death has yet to be completed.

"Releasing evidence, whether it's someone's statement, a video or some other kind of physical evidence, during an ongoing criminal investigation or a potential criminal prosecution is not allowed," she emphasizes. "It would be a violation of the rules of ethical conduct, and it might also be a violation of Colorado statutes."

Moreover, she continues, "it strikes me as odd that this has become such a subject of public discussion. I would have thought common sense would help with understanding how a criminal investigation is done -- which is to protect the integrity of that investigation and any criminal prosecution that might result from it."

The procedure shouldn't be news to local journalists, she believes.

"If we look at other criminal investigations where there is video surveillance, we routinely deny requests for copies as the case is still making its way through the process," she says. "You can ask [Channel 4's] Rick Sallinger or Brian Maass, two folks who come to mind who often request video evidence in a criminal case. Those requests are denied until the case is completed.

"Maybe it's my own naïveté, because I know that's how it works in every case and it's so standard, that it comes as a little bit of a surprise, the depth to which I'm still trying to explain to people why this video isn't going to be released, and that it's not some kind of delay -- that there's nothing out of the ordinary about how this investigation is proceeding."

As for when that might change, "there's no way to predict a time or a date," she concedes. "But otherwise, the process is predictable. Once the investigation is completed, the case will be presented to our office for review. We will have that investigative case file for some period of time for the legal review, and our conclusion at the end of the legal review would either result in the filing of a criminal charge or result in us declining to file a criminal charge.

"If no criminal charge resulted and there are no further pending matters, I believe the video would be available for release. And if there was a criminal charge, it wouldn't be available, because it would be part of a criminal prosecution. Then we'd have to wait until the end of the prosecution process, just as in every other case."

Until then, she says, "we need to stay focused on the issue -- which is understanding the cause of Mr. Booker's death."

Page down to see Kimbrough's latest "Setting the Record Straight" essay and the pre-trial-publicity letter to the DPD chief.


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