Overkill: Avenging the Death of Deputy Grant Whitaker

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Prosecutorial Excess

December 15, 2016

 

Although Assistant Prosecutor Jonathon Roth's courtroom manner seem confident and well-organized, a lot of his witnesses are unnecessary and a lot of questions are pointless, if not dumb.

 

On the first day, Roth calls Dr. Daniel Bouchard, emergency medicine physician at Sparrow Hospital and Dr. John Bechinski, forensic pathologist at Sparrow.  They testify that Whitaker died immediately at the scene and that the cause of death was accident, not homicide. This takes an hour and a half and provides no information suggesting the involvement of John Kelsey.

 

On the second day, Sergeant Allan Avery, traffic crash reconstructionist for the Michigan State Police, takes the stand. He is questioned by Roth and Morley for 50 minutes. He testifies that Whitaker's speed was 110-120 mph and that the crash was caused by high speed and an uneven roadway. There was no evidence of involvement by any other vehicle.

 

Remember, these are prosecution witnesses.

 

Sergeant Avery's testimony includes this exchange:

 

  Roth:   What do we see in Exhibit 33?
  Avery:   That is the motor from the vehicle.
  Roth:   So explain to me, first of all, what the motor in the vehicle does.
  Avery:   Well, it's the power plant for the car.
  Roth:   All right. Mechanically what's going on in the motor?
  Avery:   It's -- mechanically it's getting -- it gets fuel, which drives the drive shaft which powers the wheels. (V3-28)

 

Roth questions two employees at Mugg and Bopp's Marathon station and establishes that Kelsey was a frequent customer, drove a white Suburban Denali, and was the only customer who bought dark green American Spirit cigarettes. Here is an excerpt from the questioning of manager Mary Utermark:

 

  Roth   And when you were working, was there a specific kind of cigarettes that you sold to him?
  Utermark   Yes.
  Roth   How many other people bought this kind of cigarettes?
  Utermark   None.
  Roth   Nobody else?
  Utermark   No.
  Roth   What kind of cigarettes are these?
  Utermark   There were American Spirit dark green.
  Roth   As the person that was in charge of the inventory and the ordering, did you keep an eye on these cigarettes?
  Utermark   Yes. Every week.
  Roth   Was there actually a tracking system about them?
  Utermark   Just if we looked up the receipt, we could see how many times they were sold.
  Roth   What about the numbers? Were the numbers put on the packs?
  Utermark   Yes.
  Roth   Tell me about that.
  Utermark   We put numbers on the packs of cigarettes so we could keep an inventory. So whenever I did my interrogatory to do order, I would know how many I would need to order.
  Roth   In the week after the fatal accident with Deputy Whitaker, did the Defendant ever come in and buy these cigarettes?
  Utermark   No.
  Roth   Did he ever come in at all?
  Utermark   No.
  Roth   Did you ever see the white SUV after that time?
  Utermark   Not that one.
  Roth   Did anybody buy those cigarettes after that week?
  Utermark   Not until recently.
  Roth   When you say recently, what do you mean?
  Utermark   Within the last two months.
  Roth   Very good. And how is it that you know that in the specific week after the accident nobody else bought those kinds of cigarettes.
  Utermark   The number was the same.
  Roth   The number on the pack?
  Utermark   Yes. (V4-23)

 

Mary Utermark and the other employee provide useful information - that the defendant in the courtroom had been a customer and that he drove a white Suburban Denali. Knowing his brand of cigarettes has no discernable value to the prosecution's case.

 

Amber Peek, bartender at the Dam Site Inn is being questioned here:

 

  Roth:   What did you do at the Dam Site Inn when you worked there?
  Peek:   I was a bartender.
  Roth:   What are your responsibilities as a bartender? Day to day, what do you do there?
  Peek:   Bar tend.
  Roth:   All right. Serve drinks to customers?
  Peek:   Yes. (V4-41)

 

Sandie Hale, Tony Hildabridle's ex-girlfriend is being questioned here:

 

 

Roth:

 

Do you know a Sabrina Ware?
 

Hale:

 

No, I do not.
 

Roth:

 

Do you know an Anthony or A. J. Wynn?
 

Hale:

 

No, I do not.
 

Roth:

 

Those are people you don't know them by name, at least, correct?

 

Hale:

 

I don't know if I know them. If I don't know them by name, I don't know them. (V4-129)

 

Sandie Hale again:

 

 

Roth:

  

What did you drink?
 

Hale:

  

Long Islands.
 

Roth:

  

What is a Long Island?
 

Hale:

  

It's, like, mostly liquor. It's got, like, a splash of cranberry juice in it.
 

Roth:

  

Is it a mixed drink?

 

Hale:

  

I guess you would say that, yes.
 

Roth:

  

Does it come with an umbrella in it?
 

Hale:

  

No.
 

Roth:

  

Is it a fancy drink?
 

Hale:

  

It's a strong one. (V4-139)

 

Tony Hildabridle, a very reluctant witness, is being questioned here:

 

 

Roth:

 

Do you remember drinking Long Island Ice Teas at the bar that night?
 

Hildabrilde:

 

I don't know about that night, but that's what I drink.
 

Roth:

 

Did you have some beers as well?
 

Hildabrilde:

 

I probably did.
 

Roth:

 

Probably did or did not?

 

Hildabrilde:

 

Probably did.

 

Roth:

 

And onion rings. Do you remember ordering onion rings?

 

Hildabrilde:

 

No.

 

Roth:

 

Did you ever have any onion rings at the Alley Bar?

 

Hildabrilde:

 

What's that got to do with anything?

 

Roth:

 

Sir, have you ever had onion rings at the Alley Bar?

 

Hildabrilde:

 

No, I have not. (V4-175)

 

MSP Detective Trooper Troy Johnston is being questioned here about a cell phone found in Kelsey's possession:

 

 

Roth:

 

When was this Boost phone activated?
 

Johnston:

 

On December 12th, 2014.
 

Roth:

 

So on the day that the phone was found?
 

Johnston:

 

Correct.
 

Roth:

 

How far back does the information in the phone go?

 

Johnston:

 

December 12th, 2014.

 

Roth:

 

Did you find any information relative -- excuse me, relevant for your investigation on this phone?

 

Johnston:

 

We found very little.

 

Roth:

 

And why was that?

 

Johnston:

 

Because it had just been activated.

 

Roth:

 

When you get these reports normally from phones that had been in usage, are they much more voluminous?

 

Johnston:

 

Yes, they are. (V7-11)

 

MSP Detective Trooper Kyle McPhee is being questioned here:

 

 

Roth:

   I want to discuss the head lamp, 196, found at the Morton Road address. 195, I apologize. Did you do some follow up as it relates to this item?
 

McPhee:

   Yes, sir, I did.
 

Roth:

   And does this fit a 2003 GMC Yukon Denali XL?
 

McPhee:

   Yes.
 

Roth:

   And, in fairness, as Mr. Morley said, it fits thousands of other vehicles, correct?

 

McPhee:

   Thousands.

 

Roth:

   Different makes, models; things like that?

 

McPhee:

   Yes, sir.

 

Roth:

   Fair to say that this did not play -- this bulb much, if any, role in your investigation?

 

McPhee:

   None. (V7-64)
       
 

Saturday Night

    
 

Sunday Morning

    
 

The Okemos Raid

    
 

The Funeral

    
 

The Arrest

    
 

The Trial

    
   

High and Drunk

    
   

Headlights Off

    
 

Prosecutorial Excess

    
 

The Sentencing

    
   

Kelsey Criminal Record

    
 

Who is John Kelsey?