Attorney says state withholding info in ATV death suit

George Hunter
The Detroit News

An attorney for the family of Damon Grimes, the 15-year-old ATV driver who died in a crash after a Michigan State Police crew chased him and stunned him with a Taser, claimed Tuesday the state is withholding information in a federal lawsuit.

A lawyer for the Michigan Attorney General’s Office, which is representing the state police in connection with the Aug. 26 incident, countered the matter should be put on hold for 90 days to allow Wayne County prosecutors to decide whether to charge the troopers with crimes.

Meanwhile, U.S. District Judge Gershwin A. Drain questioned why two criminal investigations into Grimes’ death are taking so long.

“I’m a little disturbed about the delay in getting a decision on prosecution,” Drain said during a hearing Tuesday. “It’s not that complicated of a case. It’s pretty straightforward. The facts are not convoluted.”

Detroit police and state police launched separate criminal investigations after Grimes’ death. State police say Grimes was driving his ATV illegally in the street and did not comply with their orders to stop.

Trooper Ethan Berger, who drove the police cruiser, chased Grimes after he didn’t stop. At one point during the pursuit, Berger’s partner, Mark Bessner, deployed his Taser, hitting Grimes, who plowed into a flatbed and died from blunt-force head injuries.

Assistant Wayne County Prosecutor Maria Miller said in an email Tuesday: “The Wayne County Prosecutor’s Office has not received the completed investigations from DPD and MSP yet. Until that happens we are not in a position to begin our independent investigation and review of this case.”

But Detroit Police Chief James Craig said Tuesday his detectives turned over the results of their investigation “three or four weeks ago.”

“During a briefing last week, we were told (prosecutors) are waiting for some forensic analysis to be returned, and they’re doing their own interviews of witnesses,” Craig said. “But as far as we’re concerned, we’ve turned the file over to them.”

State police submitted their investigation last month, but prosecutors returned it for further work.

“The MSP is fully committed to conducting a thorough and complete investigation,” state police spokeswoman Shanon Banner said. “To that end, we’ve worked very closely with the Wayne County Prosecutor’s Office to ensure they have all the information they may need to make a charging determination. Our focus in this case, as in all cases, is to conduct the investigation in the most expeditious manner possible.”

Four days after Grimes’ death, Southfield attorney Geoffrey Fieger filed a $50 million lawsuit against Bessner. Fieger later filed a suit against Berger, seeking more than $75,000 in damages.

During Tuesday’s federal court hearing, Fieger Law attorney Gina Puzzuoli said state police “blatantly refuse to provide any information in this case. This whole case is shrouded in secrecy. We had to fight to just get the names of the people involved.

“The state has fought us at every step,” she said.

Puzzuoli also said her office has been unable to serve Bessner with a subpoena to appear for questioning because he won’t answer his door. Puzzuoli said process servers taped a notice on Bessner’s door and posted an item in the Detroit Legal News, to no avail.

“We don’t know where he is,” she said.

Bessner, Berger and a sergeant who removed a Taser wire from the crime scene, according to Detroit police sources, were all suspended after the incident. Bessner later resigned. The sergeant was identified in a court filing as Jacob Liss.

John Fedynsky of the Michigan Attorney General’s Office filed a motion Tuesday to prevent Grimes’ attorneys from getting more information about the case until a decision is made whether to charge Bessner, Berger or Liss with crimes.

Fedynsky asked Drain to put the lawsuit on hold for 90 days to give prosecutors to decide whether to bring criminal charges against the troopers.

Grimes’ attorneys have subpoenaed the court for information about the case. They also filed a Freedom of Information Act request for the same information.

Fedynsky insisted Fieger filed the initial lawsuit too soon after the incident to allow criminal investigations to take place, and said releasing information could taint the inquiries.

“The court should stay this civil case entirely pending the criminal investigation,” Fedynsky said. “We’re asking the court to quash the subpoena (seeking information in the case) and stay the case pending the prosecutors’ decision.”

Drain said he would rule on the state’s motion within a week.

Wayne State University Law professor Peter Henning, a former federal prosecutor, said it’s not unusual for judges to grant requests to withhold information in a civil case until the criminal investigations play out.

“Generally, the police authorities want to complete the criminal investigations before allowing civil discovery,” Henning said. “Judges are worried someone could use civil discovery to taint the criminal investigation.

“I can see why the state is requesting (the 90-day stay),” Henning said. “Discovery is broader in a civil case than in a criminal case. For instance, you can’t depose someone in a criminal matter, but you can in a civil case.

“Also, because these are police officers, they may be required by internal rules to give a statement in the criminal investigation,” Henning said. “But if they’re called to testify in the civil case, they might well assert their Fifth Amendment rights. But if the plaintiffs in the civil suit get ahold of that statement, they can use it against the officers.”

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Twitter: @GeorgeHunter_DN