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Gloversville seeks delay in civil suit over murder arrest

Tuesday, January 15, 2013
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— Having lost an earlier motion to dismiss the legal action entirely, the city of Gloversville is now seeking to delay a federal civil rights lawsuit filed against it by a man who claims he was falsely arrested by city police and jailed on a murder charge.

The city is asking the U.S. District Court for the Northern District of New York for a six-month stay against efforts by the attorney of Derek Kenney to obtain personnel records, including disciplinary actions, of city police officers who arrested Kenney.

Attorney Elmer Robert Keach is also seeking police records of Kenney’s purported “confession” to the murder of Brian Morrison two years ago.

Kenney filed the civil rights suit in July 2011, a year after he was charged with Morrison’s murder and held in the county jail for four months.

He was indicted by a grand jury, but the indictment was dismissed when witnesses were found to have lied to the grand jury about his involvement.

Kenney contends he was prosecuted based on an alleged confession that was obtained after his arrest and before he had been advised of his Miranda rights. He further alleges he was interrogated without benefit of counsel, even after he asked for an attorney. Kenney denies making any type of confession and said there exists no record of the confession.

Gloversville filed the motion for a stay in December, stating it cannot release the requested documents because the murder investigation is ongoing and that Kenney remains a “person of interest in connection to the homicide.”

Fulton County Court Judge Polly Hoye said the records should remain sealed because the homicide investigation is still in motion.

In its court papers, the city said Kenney “is the only individual arrested, charged or indicted for the murder of” Morrison and that the release of the information sought by Keach would “severely prejudice the ongoing investigation.”

The city said a six-month stay would allow the “homicide investigation of Mr. Morrison to proceed and/or come to a resolution without the potential of being compromised by the disclosure of highly sensitive material,” according to court papers.

In his response to the city’s legal motion, Keach said Gloversville’s request does not meet the “high burden required for a stay” in that it fails to show any potential harm if the requested material is released.

He called the city’s latest legal action a stalling tactic.

“Undoubtedly, if the defendants get their way here, they will be back again in six months requesting more time to facilitate an unending investigation into the Morrison murder. Mr. Kenney, who spent four months in jail on false charges, deserves better,” according to court papers. “He deserves to take his discovery, prove his innocence and hold the defendants responsible for their reprehensible conduct and to do so in a timely manner.”

The city in earlier court papers justified its arrest of Kenney based on the following issues of probable cause:

• Statements of eyewitnesses who observed Kenney loitering at the location of the homicide.

• A statement from an eyewitness who saw Kenney approach the victim from behind and strike the victim twice on the right side of his neck and head, causing the victim to fall to the ground.

• A statement from an eyewitness who said Kenney told her, “I guess I’m famous now,” an apparent reference to the homicide.

• A statement from a witness that Kenney told him, “I supposed this is what I killed him with too,” referring to a red Swiss army knife.

• Statements Kenney made to eyewitnesses that he was at the crime scene and that he was carrying weapons, which were among those suspected as murder weapons.

• Kenney’s post-Miranda statement that when he saw the victim on the night of the homicide, he knew the victim had blood squirting from his neck, which was information that had not been made public.

• Kenney’s post-Miranda statement that he stabbed the victim in the throat and that he was in the area of the crime scene at the time of Morrison’s death.

Morrison’s body was found around midnight July 6, 2010, on a Bleecker Street lawn, a puncture wound in his neck. Kenney was arrested three days later.

He was indicted on murder charges two months later but was released in October 2010, after Fulton County District Attorney Louise K. Sira said the continuing investigation determined three witnesses either lied or misled police in the days after the killing.

In August, the city tried to get Kenney’s lawsuit dismissed on the grounds he failed to file a timely notice of claim, that the city had probable cause to arrest Kenney and that he remains a suspect in the alleged crime, among other claims.

The court denied the city’s motion in December.

 
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