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Justice eyes Woodward FBI probe
By PATRICK ARMSTRONG
Reformer Staff


BRATTLEBORO -- Part of an FBI investigation into the shooting death of Robert Woodward has been completed and is under review by the Justice Department, but the probe continues to delay a civil suit filed by Woodward's family, and a federal judge wants to know more.

U.S. District Court Judge J. Garvan Murtha last week ordered William Ellis, defense attorney for the Town of Brattleboro and Brattleboro Police Officers Marshall Holbrook and Terrance Parker, to determine the status of the investigation by the Civil Rights Division of the Department of Justice and report his findings by Dec. 20.

"The court is concerned that the process of the civil suit before this court is being delayed by the investigation by the Department of Justice and seeks information as to the length of time the department will take to complete its investigation," Murtha wrote in a Nov. 22 order.

Woodward, 37, was fatally shot by Parker and Holbrook in the All Souls Unitarian-Universalist Church in West Brattleboro on Dec. 2, 2001. Vermont Attorney General William Sorrell in April exonerated the police officers of any wrongdoing after a lengthy investigation that largely focused on technical details of the incident.

But Woodward's family is pursuing a wrongful death civil suit against the town of Brattleboro and the two officers. The suit alleges the town failed to adequately train and supervise Holbrook and Parker. It further charges the two officers with "unconstitutional use of unreasonable force" and negligence in shooting Woodward seven times, including once in the back.

In July, the Department of Justice unexpectedly opened an investigation into whether Woodward's federal civil rights had been violated. Justice spokes-man Casey Stavropoulos said the investigation was being conducted with the FBI.

John Kavanagh, FBI supervisor for Vermont, said this week that his office had completed the preliminary investigation and the information was forwarded to the Department of Justice "over six weeks ago."

Kavanagh said because state police and the attorney generals already had conducted research, the FBI used the material gathered by those agencies rather than re-interviewing witnesses.

If the Department of Justice orders a full-blown investigation, the FBI will "reinvent the wheel," Kavanagh said -- interviewing witnesses and gathering its own data.

Stavropoulos said the Woodward case was still classified as an ongoing matter, and is under review by Justice Department attorneys.

"It's an open, ongoing investigation by the Civil Rights Division," she said.

The FBI investigation is linked to the civil suit filed by Woodward's family. On Aug. 26, a motion to extend the discovery schedule was submitted to U.S. District Court, signed by Ellis, as well as by attorneys Thomas Costello and Joel Faxon of Bridgeport, Conn. Both Costello and Faxon represent the Woodward family.

In the motion, both parties asked for postponement of depositions of the defendants and the disclosure of experts until the Justice Department and the FBI conclude their investigation into the shooting.

It was the second delay, since depositions had been postponed while Sorrell and the Vermont State Police conducted investigations, according to court documents.

The basis for delaying the deposition was that Holbrook and Parker did not want to be deposed as long as a criminal investigation was open, according to court documents. "They will assert their Fifth Amendment rights against self-incrimination in response to any questioning conducted by plaintiffs before the FBI completes its investigation," the motion states.

On Sept. 3, a discovery schedule was submitted to the court, signed by both parties, that stated, "Depositions of the individual defendants shall be completed on or before Nov. 30, 2002, or 30 days after the FBI completes its investigation, whichever is later."

However, on Sept. 30, Ellis filed a motion for a protective order. According to court documents, Ellis had telephone conversations with both Costello and Faxon, who wanted to schedule the depositions of Holbrook and Parker for the week of Oct. 21. Ellis stated that he wanted to stick with the schedule both sides had agreed upon.

In court documents filed Oct. 10, Costello and Faxon argued, among other things, that the existence of the FBI investigation could not be proven.

"Unlike the case of the attorney general's criminal investigation where the existence of that investigation was evident and acknowledged by both the state of Vermont and all of the concerned parties to this action, here defendants rely on a purported investigation by the FBI which even that agency will not confirm whether it has undertaken," the attorneys wrote to the court.

"There is simply no evidence offered by defendants that the FBI investigation exists or is even contemplated," court documents state.

Brattleboro Police Chief John Martin was quoted as saying he could confirm the existence of an FBI investigation, and at that point there was no criminal action pending against any of the defendants in the case, according to the documents.

"Even if there is an FBI investigation currently under way, and even if that investigation were to result in criminal charges against these defendants, there is no automatic stay of discovery and defendants have advanced no basis for such a dramatic measure."

In court documents filed Oct. 21, Ellis argued that Costello and Faxon had previously acknowledged the existence of the FBI investigation in court documents, such as the motion to extend discovery.

"Moreover, the plaintiffs offer the bald assertion that 'there is simply no evidence offered by defendants that the FBI investigation exists or is even contemplated,'" Ellis stated. "Again, such an allegation is troublesome in light of the plaintiffs' previous representations concerning the existence of this investigation."

Ellis also stated that there was ample evidence of the investigation in the media. In support of his argument, Ellis submitted a copy of a published news story about the investigation.

On Friday, Murtha granted the protective order, Ellis said. "The protective order was just issued to enforce what we had agreed to with our previous motion," he added.

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