Fired West Valley officer's defense team goes on the offensive

By Pat Reavy, Deseret News

Published: Mon, July 28, 2014, 5:35 p.m. MDT

 Shaun Cowley, (left) a former West Valley police officer who shot and killed Danielle Willard, 21, in November 2012, leaves his hearing with his attorneys, including Paul Cassell (right) who just joined the case, believe Cowley should never have been charged, Monday, July 28, 2014, in Salt Lake City.

Shaun Cowley, (left) a former West Valley police officer who shot and killed Danielle Willard, 21, in November 2012, leaves his hearing with his attorneys, including Paul Cassell (right) who just joined the case, believe Cowley should never have been charged, Monday, July 28, 2014, in Salt Lake City.

(Tom Smart, Deseret News)

SALT LAKE CITY — The defense team for former West Valley police detective Shaun Cowley believes not only that the potential jury pool been tainted by prosecutors, but the criminal charge filed against him should be thrown out because it is based on protected testimony.

Cowley, who is charged with manslaughter, a second-degree felony, in the 2012 shooting death of Danielle Willard, made a short, routine court appearance Monday.

Outside the hearing, however, the defense team of Lindsay Jarvis, Bret Rawson and Paul Cassell went on the offensive, filing a 48-page motion asking for what's called a "Kastigar Hearing" and for the manslaughter charge to be dismissed due to the improper use of compelled testimony.

Soon after the Nov. 2, 2012 shooting, the entire West Valley Police Department's Neighborhood Narcotics Unit was scrutinized and investigations were launched both internally and externally. Those investigations ultimately uncovered problems throughout the unit, such as improper handling of evidence.

During this investigation, Cowley was compelled to make "Garrity statements," meaning that he was forced to answer questions for an internal investigation under the threat of being fired. But those statements were obtained with the assurance, "that it would never be used in a criminal investigation or prosecution," Jarvis said.

"Yet the district attorney's office has now taken that information and tried to bring it in so they can ruin Shaun's credibility," she said. Cowley's defense team says some of those statements were improperly given to the Salt Lake County District Attorney's Office by West Valley police.

"And as a result, the entire investigation and prosecution team is tainted. The burden is on the state to prove there has been no taint. We do not believe they will be able to meet that burden," Cassell said.

It would be up to the state to prove during a Kastigar Hearing that it did not use his compelled statements in making its decision to prosecute him. Using such statements would violate his Fifth Amendment rights. The defense wants to hold that hearing before Cowley's preliminary hearing. If the state cannot meet its burden, then Jarvis believes the manslaughter charge against him should be thrown out.

Jarvis says not only are statements made by Cowley being illegally used against him, but the statements he gave had nothing to do with what he's charged with. She called it "complete, improper use of information."

Furthermore, Rawson said during District Attorney Sim Gill's press conference to announce the filing of the charge against Cowley, he talked about what forensics and other experts said in their reports, and even presented ballistics diagrams.

"You are essentially laying out your case before the entire public. The problem is, at some point if you are going to file charges, as has been the case here, you've now tainted a jury. Anybody within Salt Lake County who is watching this is potentially no longer in a position to act as an impartial jury member," he said.

Media attorneys in similar cases have argued that while there have been many high-profile cases in Utah, there has never been a case in which there was a reversal of a defendant's conviction because of pretrial publicity.

Also Monday, Cassell — a University of Utah law professor and former federal judge — made his official appearance as co-counsel for Cowley.

"The more I looked at the facts of the case, the more I became convinced that a very good office made a very bad mistake in this case," he said of his decision to join the defense team.

Cassell believes the facts of the case are for the most part not in dispute. What is still in dispute — even after Gill's office found the shooting was not legally justified — is what the law says about officers using deadly force.

"The law says an officer is entitled to use deadly force if he is in a situation where he is facing a situation of serious bodily injury or death. And we think as the evidence comes out in trial, the officer was definitely faced with that kind of threat," Cassell said.

Jarvis also revealed Monday that West Valley City has dissolved its Civil Service Commission, and Cowley — who was scheduled to have a hearing to dispute his firing from the police department — received a notice saying his hearing is no longer happening until further notice.

"West Valley pulled a fast one," Jarvis said. "We will appeal that decision to the Utah Court of Appeals because that's clearly a violation of detective Cowley's rights."

Like the last hearing, security was heightened for Cowley, who attended the hearing with his family. A wall of media photographers and reporters followed him from the courthouse elevators to the courtroom and back.

"Shaun has been in good spirits ever since charges were filed and the reason for that is he's now able to respond to some of those allegations. Up until this point it's been a lot of allegations rendered against him. He's never had the chance to speak. At the preliminary hearing, at his trial, he will finally have the opportunity to tell his side of the story," Jarvis said.

Email: preavy@deseretnews.com

Twitter: DNewsCrimeTeam

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1. JayTee
Sandy, UT,
July 28, 2014

They should be thanking their lucky stars it was just a manslaughter charge. I guess that's what you call murder when the killer happens to have a badge and a public paycheck.

2. pleblian
salt lake city, utah,
July 28, 2014

The defense team seeks to broaden what the 5th Amendment defines as "compelled".

The 5th Amendment protects former detective Cowley from being forced to make compelled statements which may incriminate him. If the statements do not incriminate him, then it does not apply. The threat of losing your job, while practically coercive, may not be legally equivalent to interrogation or forcing incriminating statements. For example, Wal Mart may have a policy to fire any employee who refuses to answer questions when co-worker makes an allegation. This policy is doubly important when cops are shooting people for good or bad reasons.

I agree that any promise made to not use the statements in court should be honored for policy reasons; but that does not mean that the statements cannot be used by investigators to decide whether or not they believe Cowley is credible, and whether they should press charges.

Also, ask any convicted murderer in Utah if they felt that the media coverage tainted the jury...every major allegation comes with media coverage. They will vet the jury before trial for evidence of that taint and exclude jurors exposed to the coverage.

3. ER in AF
Harare, Zimbabwe, 00,
July 29, 2014

Plebian- A Garrity interview is prefaced by a written warning in the same way a Miranda warning is issued. However, the Garrity Warniing & Waiver states the interview is administrative in nature and that he can be compelled to answer statements or he will lose his job. But the warning has the caveat that the coerced statements cannot be used against him for any type of criminal proceedings. That is the trade-off for the compulsion. Talk or you lose your job, but we will not (and cannot if it was truly a Garrity waiver) use it for criminal charges. The waiver is signed by the person prior to the interview/interrogation.

You cannot do a bait and switch. Miranda him and he has rights to not incriminate himself. Garrity him and he can be compelled, but his statements cannot be used criminally. If it is proven the prosecution is using statements made in the Garrity interview as material deciding factors about prosecution, then the case likely will be thrown out. If they have enough other strong evidence, then the case will proceed based on that evidence.

4. Mc
West Jordan, UT,
July 29, 2014

If I were considering law enforcement as a career in this area I would think twice about it after seeing the actions of Sim Gill's office the last few years. Why should anyone want to put their life on the line to protect others only to be charged with manslaughter and your career ruined because someone who wasn't there thinks you should have reacted differently? I admire and appreciate those who try to enforce our laws and keep us safe all the while knowing that one mistaken split second decision in a dangerous situation can change your life forever or even end your life.

This is not a cop show or "Person of Interest" where corrupt officers are everywhere killing people to benefit themselves. This is Utah where most cops are just out there honestly trying to serve the community.

5. BYU Fan in DC
Washington, DC,
July 29, 2014

I honestly believe had the person shot and killed been a 21-year doped up man, this case would never have gone here, but since it was a female who barely weighed 100 pounds, it is making news. Fact is, she tried to run him over. I hope justice prevails.