The three Denver police officers who shot at a man with a gun in Lower Downtown this summer — wounding him and six bystanders — should not be forced to testify at the man’s preliminary hearing, the officers’ attorney argued Wednesday.
The preliminary hearing for Jordan Waddy, 21, was delayed in Denver County Court on Wednesday after the three officers, Megan Lieberson, Brandon Ramos and Kenneth Rowland, did not show up. Their attorney, John Davis, said the officers were not properly served subpoenas from the Colorado Public Defender’s Office and did not know about the hearing date or their legal obligation to attend.
Waddy’s public defenders said in court that they’d followed the normal procedure for subpoenaing Denver police officers and had taken extra steps to be sure the officers were notified of the obligation to testify.
The three officers shot Waddy and the bystanders on July 17 near Larimer and 20th streets as bars and clubs let out for the night. The officers believed they saw Waddy flash a gun during an argument, so they followed him through streets crowded with pedestrians and confronted him. Waddy then pulled a handgun from his clothing and was holding it by the slide on the top of the gun when the officers fired, body camera footage shows.
The officers also wounded six bystanders in the shooting, sparking outrage across the city. Siddhartha Rathod, an attorney for three of the wounded bystanders, said Wednesday that police officers must show up in court when subpoenaed.
“We all can be clear on what’s going on here,” he said. “These officers are attempting to hide their misconduct by not showing up to court.”
Waddy was charged with three counts of possession of a weapon by a previous offender and one count of third-degree assault in connection with the police shooting.
Denver District Attorney Beth McCann also opened a grand jury investigation into the officers’ actions, allowing a group of 12 jurors to decide whether the officers should face criminal charges in the shooting. That investigation is ongoing.
Prosecutors do not intend to call the three officers who are subject to the grand jury investigation as witnesses in the preliminary hearing against Waddy, Assistant District Attorney Zach McCabe said in court Wednesday.
Preliminary hearings are held to determine whether there is enough probable cause for a criminal case to continue, a low legal standard, and McCabe said the district attorney’s office could show probable cause without testimony from the three officers. Davis also argued the officers’ testimony is not relevant or appropriate at this early stage of the case against Waddy.
“(The issue is) whether the defense can call whatever witnesses they want and conduct a mini-trial in this preliminary hearing,” Davis said.
Waddy’s public defenders, however, said the officers’ testimony was relevant to probable cause and argued the defense should be allowed to compel their testimony to cast doubt on the district attorney’s case during the preliminary hearing.
Rathod, the victims’ attorney, said officers do not get to dictate defense strategy.
“Police officers don’t get to thumb their nose at the court or substitute their judgment for that of the criminal defense attorneys,” he said.
County Court Judge Andre Rudolph declined to rule on the issue of the officer’s testimony Wednesday. He rescheduled Waddy’s preliminary hearing to Jan. 11 to allow the officers to be subpoenaed again, and said he would consider whether to allow their testimony at that time.
“What I don’t want to have happen, I guess, in terms of this, is for there to be some expectation that this will in fact become a mini-trial,” Rudolph said. “…It’s an issue I think defense should be aware of and be capable of dealing with on that date. Because at this particular point in time, while I cannot say no, I guess I’m placing you all on notice that it may not happen.”
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