New trials and their tribulations

In the course of doing her job — reporting and photographing the scene of a fatal accident involving Michigan state police a year ago — Diane Bukowski got arrested, tried, convicted and sentenced earlier this year. A jury found her guilty of resisting arrest and obstructing a police officer. Now a judge has given the reporter for The Michigan Citizen a chance to make numerous arguments at a hearing that her conviction should be set aside and she should get a new trial.

At a brief court session Nov. 20, Wayne County Circuit Judge Michael Hathaway set Dec. 23 as the date for the hearing. In motions filed earlier this month, Bukowski's attorneys have asked that Hathaway overturn the jury verdict. 

Bukowski's attorneys, John Royal and Sharon McPhail, argue that Bukowski deserves a new trial on several grounds. First, they contend prosecutors sprung a last-minute witness on them during trial, someone who hadn't appeared on a witness list.

"In litigation that's called sandbagging," Royal says, "where you hide evidence until the end of the trial when the defense has very little opportunity to refute it."

Second, Royal says Hathaway tried Bukowski on counts a lower court had declined to charge her with. Third, they want to subpoena a Fox 2 cameraman who filmed Bukowski's arrest, and they hope to show he was inside a crime scene perimeter police set at the scene. During the trial, the prosecution contended Bukowski was arrested because she was inside the yellow tape. If the cameraman were there as well, it could show Bukowski was selectively prosecuted.

Detroit City Council President-elect Charles Pugh, a former television reporter and personality, has filed an affidavit supporting her. He says it's common for journalists to cross police lines at crimes scenes and have access not enjoyed by casual observers.