June 22, 2006 – A motion to dismiss all charges against Officer Earl L. Rogers–charged in connection with an alleged July assault on movie theater usher Gretta George – was denied by Superior Court Judge Brenda Hollar. At a hearing Thursday, Hollar instead ruled that the defense had no evidence to support claims that the V.I. Police Department had tampered with or deliberately withheld evidence relevant to the case.
Defense attorney Judith Bourne filed the dismissal motion prior to an earlier hearing held May 25. At the time, Bourne said that prosecutors had not released to her office tapes of 911 calls made after the incident, which occurred on July 17, 2005 (See "Continuance Granted in Trial of Off-Duty Officer Accused of Assaulting Movie Usher").
During Thursday's hearing, however, Bourne said it was the V.I. Police Department who had "vindictively acted against Rogers" through a "series of actions" – including filing criminal charges against Rogers after he had cut a deal with the department that provided he continued to be paid following his suspension.
While Hollar said that the motion to dismiss could not be granted unless Bourne proved that the prosecution was "acting vindictively against Rogers," she did consider claims made by Bourne that some of the 911 recordings were deliberately altered – including a call made to the 911 dispatcher by Rogers himself.
Hollar said if Bourne could prove that evidence pertinent to the case had been deliberately withheld, then the motion to dismiss would be granted.
"On the tapes we received, you can only hear the tail end of Rogers' call, where he can be heard talking to his girlfriend," Bourne said. "However, you can't hear the beginning of the call, where Officer Rogers said that he was calling to say that he had been assaulted, had made an arrest and was requesting backup."
Bourne added that while that part of the conversation was not recorded, the contents of the call were mentioned by the 911 dispatcher in another transmission recorded later that day.
Bourne also said that a call made by Omar Hussein, the manager of Market Square East Cinemas, requesting an ambulance to transport George to the hospital was also mentioned by the dispatcher but was not recorded by the 911 system. She said the call was important because the charges filed against Rogers include "assault with the intent to injure."
"We believe the call about the ambulance would show that no claims of injury were made until the manager of the theater saw that Officer Rogers was going to arrest his employee and take her down to the station to be processed," Bourne said. "Then he [Hussein] said the only way Ms. George was going down there was in an ambulance. He then asked her if she wanted an ambulance, and she said yes."
Bourne said that it was "interesting" that neither call was recorded by the 911 system.
However, under questioning by Bourne, Officer Cornel Esprit, the administrator of the 911 system, said that there are situations where calls are not recorded. He explained that at the time of the incident, only three of the seven dispatch channels were operable, so calls that came in on the other four channels were neither recorded nor logged in.
Esprit added that calls may also not be recorded if the equipment in the dispatch office is malfunctioning or if an individual calling 911 dials an alternate emergency number.
Esprit told Bourne that "it was not likely" that the calls were erased, since calls are routinely archived and logged. "The system is also protected by two passwords, which only myself and my supervisor have access to," he added.
Esprit explained that the he asked for the password system to be implemented after Rogers was reassigned to work in the 911 office. Esprit said that while he was teaching Rogers how to operate the system, Rogers asked him to listen to the 911 calls made on the day of the incident. "That seemed like a conflict of interest to me," Esprit said. "So I asked my supervisor to implement the passwords."
Esprit was called to the stand four times during Thursday's hearing, and tapes of the original archived 911 calls were played against a copy of the files, which Bourne said "were given to me yesterday afternoon."
Esprit explained that when he first received a request from prosecuting attorney Ernest Bason, calling for all of the transmissions made to police after the incident, he took the original files from the archives, converted them into MP3 format and "burnt them" onto a CD.
While the recordings were playing, Bourne indicated several instances where information mentioned on the archived files was omitted from the disc copy. When asked how "such a situation is possible," Esprit said that "sometimes" not all information transferred onto CDs during the burning process is complete.
Hollar ruled that the calls missing from the tape were either received on one of the nonfunctioning dispatch channels or were called in through an alternate emergency number and were not recorded.
Hollar also granted a motion filed by Bason to withdraw from the case based on the fact that he had had a meeting with Rogers to discuss the incident prior to Rogers' arrest. Bason said he did not remember the meeting until he heard it mentioned on the 911 tapes by an officer who had called the dispatcher to request Bason's number.
After being called to the stand by Bourne, Bason testified that after his secretary reminded him about the meeting with Rogers, he subsequently filed a motion to withdraw, in case he is called by the defense as a witness during the trial. Bason said he could be called as a witness because during the meeting, Rogers told him "his version of the incident" and asked if Bason could help him deal with the paperwork relating to George's arrest.
Hollar said Bason had until Aug. 18–when the trial will be continued – to find another prosecuting attorney.
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