Mimesis Law
30 June 2022

Drunk Prosecutors: Just Another Professional Courtesy

February 24, 2017 (Fault Lines)– Joshua Kuiper shouldn’t have been driving:

[H]e drove the wrong way on Union Avenue SE in Grand Rapids — going 41 mph in a 25 mph zone, according to the documents — and hit a parked car. The car’s owner, Daniel Empson, was injured in the crash.

“The vehicle ran into me,” Empson can be heard telling a 911 dispatcher in a recording. “It kinda hurts. … Head, knee, legs, hands — just a lot of soreness overall.”

Kuiper is lucky, though, as I happened to omit the part of that snippet that explained Kuiper was a Kent County Assistant Prosecutor leaving another prosecutor’s retirement party. A normal driver in that situation would be guaranteed thorough questioning about where he was coming from and whether he’d been drinking followed by a battery of field sobriety tests, a portable breath test, and an arrest. But for Kuiper, his situation was different.

Part of the scenario reads like the beginning of countless DUI arrests:

The traffic crash report shows that alcohol was a factor in the crash and body camera footage shows Kuiper slurring his words following the wreck. And in a recording of a phone call from Ickes to the watch commander on duty, he describes Kuiper as “hammered.”

“This crash out here is Josh Kuiper from the prosecutor’s office that’s hammered, going the wrong way on Union and (inaudible) a parked car,” he can be heard saying.

Kuiper’s special treatment began the moment that Ickes decided to call the watch commander.  Conducting a DUI investigation and making an arrest where an ordinary citizen who appears hammered just hit a parked car after speeding the wrong way down the road isn’t the sort of thing that typically requires a supervisor’s approval. Most of the time, cops just do their job without much concern for the lives and careers of the people they arrest and cite. Prosecutors are on the same side, however. Just like with friends and family members who have a brush with the law, it’s a lot harder to subject someone you can sympathize with to the terrible consequences of a DUI. That’s true even if they happen to seem quite wasted.

The conflict Ickes experienced is clear:

“You’re putting me in a real bad place right now, but you understand what I gotta do,” Ickes can be heard telling Kuiper in body camera video. “It’s a nightmare.”

Fortunately, for Kuiper, what Ickes felt he had to do was still less than he would’ve done to any ordinary person:

Despite noting Kuiper’s intoxication and moving to a different phone line, it was determined Kuiper would not be given a breathalyzer test.

“Based on dexterity tasks and on the scene here, I don’t smell any alcohol coming off your person, appears to be a crash at this point, all right,” Ickes told Kuiper at the scene, according to the body camera video. “I don’t have enough PC (probable cause) to offer a PBT (breathalyzer test) at this time to figure out what your level is because you did well on the dexterity tasks. So at this point, we’ll get your car towed, get the other vehicles towed and make sure you get home safe, OK?”

Kuiper was ticketed for driving the wrong way on a one-way street. Then-Sgt. Thomas Warwick then drove him to a nearby home.

On the one hand, cops exaggerate or fabricate signs of impairment so often that it’s somewhat amusing to see them do the opposite for once. Sure, he just hit a parked car after going over the speed limit down a one-way street and exhibited slurred speech, but he didn’t smell like alcohol. He’s probably fine, right? That doesn’t do much to negate the various incriminating facts and circumstances. Neither does solid performance on dexterity tests, something fairly unbelievable considering Ickes’s previous observations about Kuiper being hammered.

Had Kuiper been charged with a DUI like anyone else would have been, his lawyer probably would’ve filed a motion to suppress. It’s unlikely Ickes ever would’ve said that Kuiper performed well on dexterity tests if he weren’t setting things up for Kuiper to avoid a DUI conviction, but if he did, the motion undoubtedly would’ve argued that plus the lack of an odor of alcohol meant the officer didn’t have probable cause. The judge would’ve thought about it for about half a second before denying the motion.

Ickes would never have been so against doing a breath test at the scene in any other situation. Cops and prosecutors and courts love to pretend that people take such tests of their own free will. It’s like they think people just go around casually breathalyzing each other. Just because they don’t have probable cause doesn’t mean they can’t ask a guy with whom they’re engaged in voluntary contact to take a friendly little test, right? Ickes pretending that he just couldn’t ask Kuiper to do a breath test because he lacked probable cause may be the single most transparent thing he did to try to get Kuiper off without a DUI, and that’s not just because probable cause was so apparent.

Without that test and with Kuiper getting a ride home before anyone could really investigate, a DUI wasn’t in the cards for Kuiper. But there was a victim and more documentation than the cops helping Kuiper probably wish there was:

Documents, phone recordings and video obtained Wednesday by 24 Hour News 8 through the Freedom of Information Act detail the investigation into a former assistant prosecutor’s wrong-way car crash and how three Grand Rapids Police Department officers responded.

The cops were at least able to let more evidence disappear than just the alcohol on Kuiper’s breath:

What’s missing from the evidence is the in-car video from Ickes’ patrol cruiser. Reports state it was 70 minutes of video, but because Ickes classified it as a non-event instead of something that would save it for 120 days during an investigation, it expired after a week. A report says it’s not clear if that was done purposely or if it was an operator error.

It’s amusing given what we know that anyone could say with a straight face that the video might not have been allowed to expire purposefully. This was a classic example of professional courtesy, and the consequences for the officers extending it are just as classic:

Ickes, Warwick, and Janiskee were all facing termination for their response to the crash.

On Wednesday, Warwick accepted a demotion from sergeant to officer and a 160-day suspension without pay, according to city spokesman Steve Guitar.

Last week, Ickes also reached a deal with the city to instead serve a 30-day suspension without pay. Ickes and Warwick were previously suspended without pay as the incident was under investigation. It is not clear if the suspensions they got in exchange for keeping their jobs included time they were already off the job.

The city says Warwick and Ickes accepted responsibility for their mistakes in investigating the crash.

Janiskee’s situation is not yet resolved; his termination hearing is scheduled for March 7.

Don’t expect anyone to throw the book at Janiskee either. Ickes probably deserves the most punishment, and Janiskee’s involvement isn’t really clear at all in the article. He may get the softest wrist slap of all.

To some extent, it would be nice if cops were always hesitant to ruin someone’s life with a DUI. Sadly, professional courtesies rarely have anything to do with whether the person receiving them deserves anything of the sort. Kuiper wasn’t some poor college kid with no history who made a wide right turn, didn’t hold his foot out for the precise number of seconds required by the investigating officer, and then blew one thousandth of a point over the legal limit into an unreliable little testing device. That kid and countless others like him are going to keep getting hammered. The Kuipers of the world will continue to get big breaks even though they don’t deserve it.

According to a “Last Chance Agreement” notating a conversation between Kuiper and the Kent County Assistant Prosecuting Attorney Association on the Monday following the wrong-way crash, Kuiper had previous problems while working for the office.

The agreement states that “several years ago, during an office excursion to Wrigley Feild, you became extremely intoxicated… you became argumentative, belligerent and confrontational toward other assistant prosecutors,” and “That you consumed alcohol prior to being involved in a previous incident for which you received a ticket for leaving the scene of a property damage accident… your BAC was .07.”

So not only did officers give a guy an improper break, but they picked the wrong guy. The whole situation should really drive home how unfair things are when it comes to cops and prosecutors, especially when you consider that the professional courtesies still keep coming:

The three officers are not facing criminal charges. Kalamazoo County Prosecutor Jeff Getting, who handled the case to avoid a conflict of interest, decided they were not in violation of the law.

Cops help out a prosecutor. Cops get caught. Different prosecutor helps out cops. It’s not a thin blue line as much as a thin blue circle. Luckily for Kuiper, prosecutors sometimes get to be a part of it.

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