Defense attorneys for the Capitol Police officer accused of setting a Nov. 2 fire in a Senate office building have asked the court to throw out a range of government evidence, including burnt toilet paper from another bathroom and a witness description placing the officer at the scene of the blaze.
Officer Karen Emory is charged with one misdemeanor count of willfully destroying government property.
In documents filed in U.S. District Court for the District of Columbia on Thursday, lead defense attorney Ronald Machen writes that “[t]his should be a straightforward case” about the Nov. 2 blaze.
Instead, the government is trying to “confuse the issues” with “improper and inadmissible evidence that ‘singed toilet paper’ was found in another bathroom,” he writes.
At least 16 fires took place in Senate office buildings in the fall. Emory has been charged with setting only the Nov. 2 blaze, which happened just before 8 a.m. in a women’s restroom in Dirksen.
But Machen wants to ensure that either no evidence from any other fires is allowed in the case — or that evidence from all the fires be let in.
“[T]here is no evidence that the defendant was responsible for these incidents — indeed, for some of these incidents there is very strong evidence that she could not possibly have been involved,” Machen wrote in a Feb. 14 motion.
Machen also is seeking to get any statements made during Emory’s Nov. 13 police interrogation thrown out, arguing that investigators failed to advise her of her Miranda rights. And then there’s the witness description, which he says doesn’t fit Emory at all.
“Ms. Emory weighs (and weighed on November 2, 2007) considerably more than the weight estimated by the witness,” he writes. “Second, Ms. Emory does not (and did not) use hair gel. Third, Ms. Emory’s hair is not (and was not) ‘wavy.’”
Machen did not return calls seeking comment on Friday afternoon. A partner at the firm WilmerHale, he was a federal prosecutor in the District of Columbia from 1997 to 2001, and was selected by The American Lawyer as one of the nation’s top 50 litigators under the age of 45.
A spokeswoman for the U.S. Attorney’s Office did not return a call seeking comment, and a spokeswoman for the Capitol Police declined to comment on the new motions, citing pending litigation.
Machen also filed paperwork requesting prosecutors provide the full names of the witnesses, including the witness who placed Emory at the scene. But Machen argues that whomever the witness is, his statement should be thrown out.
According to court documents, the witness told a Capitol Police special agent that he saw a Capitol Police officer walking out of the women’s restroom. As the witness approached the restroom, the officer stopped, looked around and walked down the hallway, which caught the witness’ attention, according to the documents.
Later in the day, investigators asked the witness to walk by Emory’s post and report if “he recognizes anyone.” The witness confirmed that Emory was the same person he saw walking out of the Dirksen restroom, according to the documents, and thus, the identification was obtained through “inherently suggestive procedures.”
“The witness — whose information was based on a fleeting glance of innocuous conduct — was essentially pointed in Ms. Emory’s direction and asked to confirm whether he ‘recognized anyone,’” Machen writes. “The witness followed those instructions and thus ‘confirmed’ the investigators’ conclusions, even though Ms. Emory did not perfectly fit the original description.”
Investigators could have used a more fair method of identification, such as a multiple-person photographic array or a lineup, Machen writes.
It is not known what Emory said during her interrogation, but Machen says her entire statement was tainted.
According to the court documents, Emory was on duty on Nov. 13 when she was told by a Capitol Police sergeant to contact the Capitol Police’s Criminal Investigations Division to meet about about the fires. The sergeant did not tell her she was the target of the investigation or read her the Miranda rights, Machen writes.
Later that day, Emory met with a CID sergeant, who told her to relinquish her service weapon and led her to an office where investigators were waiting.
Investigators questioned Emory about the case for over an hour without a break, “and eventually accused Ms. Emory of setting the fires,” Machen writes. They never advised her of her Miranda rights, and when she asked for a lawyer and her union representative, investigators continued the questioning, Machen adds, which he says is against the department’s collective bargaining agreement.
Emory also asked to meet with her father-in-law, William Emory, who is an attorney for the police department. That request also was denied, Machen writes.
Emory asked if she was under arrest, and investigators told her she wasn’t. A senior Capitol Police officer was then called, who informed Emory she was being put on administrative leave, according to Machen.
Prosecutors officially indicted her for the fires on Dec. 5. She has pleaded not guilty.
Battling Over the Tapes
While Machen keeps busy trying to exclude evidence, Assistant U.S. Attorney Angela Schmidt, who is handling the case for the government, is trying to make sure certain things get in.
Much of the government’s case against Emory centers on videotape surveillance that shows her entering and exiting the Dirksen restroom just before the blaze was discovered. But in documents submitted to the court on Feb. 14, Schmidt also seeks to introduce evidence from a blaze that she writes took place just minutes later.
According to Schmidt, Emory entered a restroom in another building shortly after the Dirksen blaze to do a restroom check — which many officers on duty at the time were assigned to do. Emory exited the restroom a few moments later, telling a fellow officer that she discovered suspicious material, later found to be two rolls of singed toilet paper inside a stall.
Videotape surveillance shows that only one other person entered the facility before the toilet paper was discovered, Schmidt writes, and that person told investigators the toilet paper wasn’t burned when she was in the stall.
Because the discovery was made just minutes after the Dirksen fire and the evidence is so similar to the Dirksen blaze, Schmidt writes that it supports the argument that Emory set the Dirksen fire and purposefully intended to do so.
But Machen argued that the evidence should not be admitted, as it would unfairly prejudice the jury.
“The jury may well conclude that, if the defendant was inclined to singe toilet paper in one bathroom, she would also be inclined to commit the charged crime,” Machen writes. But, he said, there is no “‘signature evidence’ proving that the defendant must have been responsible for both incidents.”
Indeed, Machen argues, although Emory discovered the singed toilet paper on Nov. 2, the government cannot prove she was responsible, or that the burning of the paper actually took place on Nov. 2.
But if Judge Ricardo Urbina rules that the singed paper can be admitted, Machen says he would like to be able to offer “exculpatory evidence concerning all or some” of the other fires.
“This evidence will be admissible to show that someone other than the defendant set the charged fire,” Machen writes.
Machen also filed paperwork to force prosecutors to release any additional information related to the other fires, including event reports, video footage and radio runs; information about the working and maintenance of the fire alarm system; and identities of witnesses redacted from materials the government has introduced.
“This information may help her identify new suspects,” Machen writes. “It may prove Ms. Emory could not have committed the charged fire or the various other acts because she was located elsewhere during the relevant periods. It may also raise questions about the quality of the evidence.”
Some of these issues came up in a court hearing held Thursday morning. During the hearing, Schmidt argued that prosecutors already had provided all necessary evidence.
But before the hearing, the two attorneys argued loudly and publicly, with Schmidt insisting that providing hours worth of surveillance to Machen would amount to a “fishing expedition.”
It was unclear Friday afternoon whether Urbina would grant Machen’s request, although he did say on Thursday that he did not want to cast too wide of a net for trial.
“We don’t want to have two or three trials inside one trial,” he said. “That would not be acceptable.”
Prosecutors have until Monday to respond to Machen’s motions. Emory’s trial is scheduled to begin on March 17.