Thomas MacMillan File Photo
Fair’s supporters posted flyers on telephone poles last year.
A public defender asked a judge to make the FBI give up the name of a confidential source with information about who might have killed Devil’s Gear worker and punk rocker Mitch Dubey. Sorry, the judge said; I can’t help.
Public defender Tom Ullmann made the request Wednesday in state Superior Court on Church Street Wednesday as he continued his quest to prove the innocence of 20-year-old Tashaun Fair, who is accused of fatally shooting 23-year-old Dubey during a robbery at Dubey’s Bassett Street home on March 24, 2011. Dubey’s death sent shock waves through New Haven as well as a national network of cyclists and underground musicians for its sheer random brutality.
Ullmann made the plea before Judge Jon C. Blue Wednesday in a last-minute scramble for more information before Fair goes to trial on July 22.
The ensuing discussion pit two competing legal interests, and jurisdictions, against each other: The need to explore an alternative potential killer in a state murder trial; and the need for the federal government to protect the identities of confidential informants in their own criminal investigations.
Blue, who gained national prominence last year when he oversaw the Cheshire triple-murder trial of the Petit family, is overseeing the trial, which promises to be another high-profile affair with the police department’s methods expected to be scrutinized.
Fair, who has been locked up since his arrest on Aug. 28, 2012, appeared in Blue’s fourth-floor courtroom Wednesday in a green prison jumpsuit. He sat through two and a half hours of pre-trial hearings as his sister looked on.
Ullmann maintains his client is innocent and the cops got the wrong guy. The state has no physical evidence against Fair. Dubey’s four friends who were home at the time of the robbery have not identified Fair as the triggerman, and the state will not ask them to do so during the trial, according to prosecutor Jack Doyle.
The state’s case relies instead on the testimony of one key witness — a young man who told cops he served as a lookout to the robbery. The witness “at first denied any knowledge of the incident,” according to the warrant affidavit. Then later, after getting arrested on outstanding warrants, he gave police a second version of the story: He told police he had accompanied Fair to the house for the robbery, then stood outside and heard the shot as Fair went in.
Ullmann has said he believes that the state’s key witness may have been the shooter himself. He has cited a conflicting physical description of the shooter — as well as FBI reports in which an informant tells the FBI that the alleged lookout actually committed the crime.
On Wednesday, Ullmann sought Judge Blue’s help in tracking down the identity of that informant, listed in the FBI report only as a “confidential human source [CHS].”
Blue chuckled at the description. What would be an “inhuman” source? he asked. “A parrot”?
Ullmann said he found the description amusing when he first saw it, too. He determined that the FBI uses “human” to differentiate people who relay information from, say, conversations picked up on a wiretap.
Ullmann told Blue he has been trying to get the FBI to tell him the identity of the CHS. Prosecutor Doyle also tried to help Ullmann get the info.
Paul Bass File Photo
Fair at his arraignment.
Doyle reported Wednesday that the FBI isn’t allowed to give up the name without permission from the U.S. Attorney’s office. Doyle said he has met with an assistant U.S. attorney who knows who the informant is, but that prosecutor wouldn’t give up the name for two reasons. First, the informant’s identity is sensitive, in part because the informant is also involved in another pending case in federal court. Second, the assistant U.S. attorney said the federal government would give up the names only of witnesses with direct knowledge of the crime, but not of informants whose only information about the crime is hearsay.
In this case, the CHS didn’t purport to directly hear a confession. Instead, the CHS claimed to hear another person say that the alleged lookout — the state’s key witness in this trial — did the crime. That’s hearsay.
Ullmann said regardless of whether the information is hearsay, he would like to know the informant’s identity in order to learn more about the context in which the alleged conversation took place. That could lead him to more clues establishing his client’s innocence.
The discussion came up Wednesday in response to a pre-trial motion Ullmann filed seeking all emails, documents, interviews and other evidence related to any followup from the FBI reports. In court, Ullmann has been critical of the New Haven police for not mentioning the FBI reports in the arrest warrant application.
Judge Blue expressed sympathy for Ullmann’s quest for the informant’s name: While hearsay may not be admissible in court, it is discoverable, he said. That means the defense has the right to review evidence containing hearsay about the crime. However, Blue said, his hands are tied. Because he’s a state judge, not a federal judge, he can’t order the FBI to give over any documents.
Blue suggested Ullmann get a federal judge to help. Ullmann said he has been trying to get the information in another way.
Blue said he does believe Doyle has done his part to help: Doyle went “if not the extra mile,” then “an extra two or three blocks” to help track down the informant’s name, Blue said.
Ullmann replied that Doyle should go “the extra mile.” And he said he feels the judge does have “some powers in the interest of justice” in pressing the feds to give up the info.
Paul Bass Photo
Ullmann in his office.
Ullmann didn’t say if he plans to press the point with the judge. The judge said if Ullmann wants to press the point, he must file a memorandum of law making the case for why a state judge could order a federal agency to produce info.
Judge Blue settled on issuing an order for Doyle to turn over any information he may come across — or at least let Ullmann know he has it — related to how city cops followed up on the FBI reports.
The prosecution and defense came to agreement on most pretrial issues. For example, Doyle agreed not to admit into evidence a disturbing photo of Dubey taken at the hospital, during a last-ditch effort to revive Dubey after the shooting. And the prosecution agreed to warn cops who take the witness stand not to make reference to Fair’s prior arrest for felony robbery.
Ullmann withdrew a motion calling for the judge to suppress an interview between police and Fair a few months after the homicide. Ullmann originally raised the question of whether the interview was voluntary; he dropped it after hearing evidence Wednesday that Fair consented to the interview and was free to go at anytime.
Both sides are set to reunite before Judge Blue at another pre-trial hearing on July 18 before the trial begins.
It's easier to let this young man take the fall instead of looking for the real killer