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El Paso ADA explains position on wiretapping investigation

Jennifer Smith
jsmith@littletongazette.com
11/1/11

Editor's Note: Below is a letter from Assistant District Attorney Daniel Zook in  the El Paso County DA's Office to Chief Deputy District Attorney Karen Pearson in the Arapahoe County DA's Office. Zook outlines why he recommends no charges be filed against the Littleton Police Department employee who returned to work yesterday while on paid leave during the 2 1/2-month investigation.

Because there's been so much interest in this ongoing story, we decided to run the letter in its entirety. We have also asked the Arapahoe County DA's Office, which actually conducted the investigation, for all related documents. They replied today that we have to fill out a form and pay $25, which we will do.

We asked prominent civil-rights attorney David Lane to review the letter, since he's weighed in before. His reaction: "I’m shocked.  It’s a DA who doesn’t want to prosecute cops!  Stop the presses."

Pursuant to my appointment as special prosecutor, I have reviewed and evaluated reports involving various police personnel of the City of Littleton and have determined the evidence there in would not support a criminal prosecution against any individual.

I specifically reviewed the evidence as presented in regards to Wiretapping Prohibited,Eavesdropping Prohibited, and Witness tampering and Witness intimidation.

My conclusion is that this situation stems from an installation of a new telephone system that was being tested and revised during a period between May 18th and July 26th 2011. An inference can be drawn that many if not all personnel involved knew and gladly anticipated this new system was imminent or in place. Could there have been a better job of notifying personnel affected as to when exactly it was in place and how it worked is a question for personnel supervisors, not the criminal justice system.

The evidence is lacking as who was able to record what during that period and circumstantial at best as to who recorded the calls in question. The wiretapping statute requires a knowing element of over hearing or recording, it does not specify listening to a recording. Indeed,evidence of over hearing is lacking and the recording was done per the system and not a particular person. In this case the calls were listened to at a later date after being recorded and noone overheard them as they were made. There is no evidence as to who actually made the decision to record them; all calls were simply recorded based on the type of system in place.The listening of recorded calls at a later date by a 3rd party is tenuous at best as to fulfilling this element. Furthermore, to conclude that the recorded calls listened to were listened to by a particular person solely because it was on their computer without more when this system is open to numerous individuals in charge of administration and installation is hardly persuasive.

When reviewing the evidence of witness intimidation and or tampering, those statutes deal primarily with witness testimony. As those statutes could be applied toward those who could be a victim to a crime the evidence is lacking.

This investigation points to some areas that could be addressed administratively; however there is a lack of evidence that is likely to support a criminal conviction and therefore I do not conclude that a criminal charge or charges is supported.

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