A witness who stood 15 feet away from homeless street preacher Marvin Booker and alerted deputies that he wasn’t breathing in the Denver jail can only speak through a video recording.
John Yedo, considered a critical witness, died of colon cancer on June 30, 2011.
Now attorneys on both sides of a lawsuit brought by Booker’s family are debating in court briefs whether statements Yedo made to a Denver detective two weeks after the July 9, 2010, death of jail inmate Marvin Booker can be admitted at trial.
The Booker trial is set to begin Monday with jury selection in the courtroom of federal Judge R. Brooke Jackson.
Booker died after four Denver jail deputies and a sergeant shocked him with a Taser, put him in a “sleeper hold” and lay on top of him in an effort to control him.
Jackson told attorneys Thursday that the presumption is that videotape evidence is considered “hearsay.” He added that it could only be admitted by meeting certain exceptions.
Defense attorneys Tom Rice and Andrew Ringel filed a brief Friday that says the Yedo videotape should not be admitted because of the hearsay rule, and also because it isn’t justified by exceptions.
But plaintiff attorney Darold Killmer said Thursday he believes the exceptions apply because “the witness is unavailable — he’s dead.”
Detective Phil Swift interviewed Yedo two weeks after Booker’s death, according to a brief Killmer filed Wednesday. Killmer argues that Yedo offers “unique” testimony. Killmer’s brief says that the experienced police officer provided direct and cross-examination of Yedo during the videotaped interview.
“Mr. Yedo’s police interview … was not under oath or subject to cross-examination,” the city of Denver’s brief says. “The detective in the criminal context had altogether different interests than the Defendants in a civil case would have had if they been able to ask Mr. Yedo questions during the interview.”
Killmer makes it clear in his brief that Yedo’s perspective is very important to the case.
Yedo told the officer that the incident was “instigated” by Deputy Faun Gomez, when Booker was called up to a cell-house desk. Booker, who had taken his shoes off while sleeping on chairs, said he was getting his shoes, Yedo had said, because they were “probably the only damn pair of shoes he had.”
“Mr. Yedo stated that if Defendant Gomez would’ve let Mr. Booker just get his shoes, the situation would have been defused,” the brief says.
Yedo also told the detective that Booker was not resisting or fighting officers and that he was only trying to breathe and that his last words were, “I can’t breathe.”
“Mr. Yedo demonstrated the chokehold Defendant (James) Grimes had on Mr. Booker and counted how long he heard the Taser,” the brief states. In Yedo’s opinion, the deputies strangled Booker to death, the brief says.
Yedo said Booker went limp and that he had to tell deputies several times that he was not breathing before they called for medical attention. Yedo said deputies afterward were laughing like it “made their day” and “got them pumped up.” Yedo’s perspective answers whether defendants acted with “unwise zeal or malice,” according to the brief.
Yedo reiterated near the end of the interview that Booker “was not combative in any way, shape or form, before that, or causing a scene, or making any threats to any sheriff or anybody.”
“Mr. Yedo’s statement and narrative goes to the very heart of the most hotly disputed issues in the case, and provides a superior view of the events to any video produced in the case,” Killmer’s brief says.
He added that Yedo was one of the few jail inmates awake and close enough to see what happened.
“There is no doubt he provides a crucial and irreplaceable piece of the puzzle,” Killmer wrote.
Kirk Mitchell: 303-954-1206, kmitchell@denverpost.com or twitter.com/kirkmitchell or coldcases/blog
