Lawyer: No texts in Greene suit

DETROIT — The attorney for former mayoral chief of staff Christine Beatty wants text messages that were sent between city and police officials excluded from a lawsuit brought by the family of Tamara Greene, the exotic dancer who was killed in a 2003 drive-by shooting. Mayer Morganroth, Beatty’s attorney in the Greene case, on Friday filed a motion in U.S. District Court to quash subpoenas seeking the text messages, claiming the federal Stored Communications Act bars their release in a civil lawsuit, unless the person sending or receiving the messages gives permission for their release. “This court should prohibit all discovery of electronic communications purportedly pertaining to Beatty from any source whatsoever inasmuch as Beatty has not authorized the release of any communications relating to her,” Morganroth wrote in his motion. “The clear purpose of the SCA is to protect the privacy of ‘users,’ regardless of who owns or pays for the equipment or service,” Morganroth wrote. The lawsuit, filed on behalf of Greene’s 15-year-old son, Jonathan Bond, by his father, Ernest Flagg, claims city officials failed to properly investigate Greene’s murder. Greene, who used the stage name “Strawberry,” has been linked to a long rumored but never substantiated party at the mayor’s Manoogian Mansion in the fall of 2002. Norman Yatooma, Flagg’s lawyer, several weeks ago subpoenaed SkyTel pager text messages for Kilpatrick and 33 other current or former police and city officials. Yatooma on Sunday called the motion to quash subpoenas seeking the text messages “ridiculous.” “First of all, Beatty is not a subscriber, and this act protects only the subscriber,” Yatooma said. “The city is the subscriber, not Ms. Beatty. And the city is in conflict with itself, because the city, through the City Council, is asking for these same text messages. “Also, the mayor has already waived these arguments many years ago when he said all such information is public information,” Yatooma said. “He put that in writing.” University of Detroit Mercy law professor Larry Dubin believes Yatooma’s argument is valid. “I think there is a good possibility that the judge will find that the defendants do not have a legitimate basis for blocking the release of these messages,” Dubin said. “There’s a strong argument to be made that the messages are public records and that the subscriber was the city of Detroit — not the individuals who used the devices.” But Morganroth in his motion claims the text messages should not be allowed, no matter who owned the pagers. “It is perfectly reasonable for Beatty to expect that her electronic communications would remain private, even when such electronic communications were sent or received via city-provided equipment,” Morganroth wrote. U.S. District Judge Gerald E. Rosen expressed frustration two weeks ago when a city attorney said Detroit officials destroyed records showing which employees were using which city pagers at the time Greene was killed in April 2003. Rosen said if he does not receive the “personal identification numbers” that show which specific Detroit Police and city officials had which pagers, he will order SkyTel, the city’s former pager contractor, to turn over all pager text messages for all city employees for the time periods relevant to the lawsuit. SkyTel officials have agreed to turn over the records so that federal magistrates could review them, but they said they first needed the pagers’ personal identification numbers showing which employees had specific pagers. Rosen had ordered the city to turn the PINs over to Yatooma by March 28, but city attorney Krystal Crittendon told the judge April 14 that she was unable to locate the records. She said they possibly were destroyed after the city stopped using the SkyTel pagers in 2004. Rosen said if the records are not produced, he would “order the production of all text messages during the relevant time period.” Text messages from Beatty’s SkyTel pager, which were published in the media in January, led to criminal charges being brought March 24 against Kilpatrick and Beatty. Wayne County Prosecutor Kym Worthy charged Kilpatrick and Beatty with conspiracy, obstruction of justice, perjury and official misconduct in a case related to a police whistle-blower trial in 2007. The pager text messages hinted at a sexual relationship between Kilpatrick and Beatty. Both the mayor and his former chief of staff denied under oath having a sexual relationship during the whistle-blower lawsuit filed by former Detroit police officers, who said they were fired or demoted for investigating wrongdoing by the mayor. The cost of the settlement was $8.4 million.