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Wednesday, March 5, 2008

Ex-cop takes the 5th. Twenty times.

By Randall Beach
Register Staff
NEW HAVEN
— Former New Haven police Detective Clarence Willoughby Tuesday answered a subpoena in a murder case, but repeatedly refused to answer a defense attorney’s questions about the investigation of Tony Howell’s slaying.
“Under the advice of my counsel, I plead the Fifth Amendment,” Willoughby said about 20 times while being questioned by defense attorney Thomas Ullmann, who is representing Ernest Pagan.
The Fifth Amendment is a person’s right to protect himself from self-incrimination.
Willoughby faces charges, in the same courthouse, of larceny, forgery and making a false statement, all in the second degree. He is accused of stealing thousands of dollars from a fund used to pay confidential informants.
Willoughby filed for retirement Feb. 6, hours before turning himself in on the charges at police headquarters. He is now getting a pension of $58,000 a year.
Ullmann subpoenaed Willoughby to testify during a hearing on Ullmann’s motion to suppress three witnesses’ identification of Pagan as the man who shot Howell.
Ullmann is arguing that those witnesses, who were questioned by Willoughby and another detective in the days after the shooting, should not have their identifications of Pagan revealed to a jury.
Jurors are scheduled to begin hearing the case Monday.
All three of the witnesses Monday in Superior Court recanted their earlier statements to Willoughby and police Detective Reginald Sutton.
Pagan is accused of shooting Howell to death outside Newt’s Cafe on Whalley Avenue Dec. 24, 2006. In statements within a few days afterward, the three witnesses said Pagan did the shooting and picked his face from a photo board shown to them by the two detectives.
Pagan, 29, formerly of 212 Sheffield Ave., also is charged with attempted murder in the shooting of James Brown Jr., who was seriously injured but survived.
Assistant State’s Attorney Mary Elizabeth Baran, who is prosecuting Pagan, objected when Ullmann asked Willoughby whether he is now charged with felony and misdemeanor counts.
She called the question “inappropriate” and noted, “He’s charged, but not convicted.”
Although Superior Court Judge Bruce Thompson ruled Ullmann could ask that question, Willoughby also refused to answer it, again citing the Fifth Amendment.
Ullmann told Thompson all of his questions to Willoughby were appropriate to his motion. “I understand the Fifth Amendment is broad,” he said. “But I don’t see it” in this case.
Ullmann told Thompson that Willoughby should be ordered to testify.
But Willoughby’s attorney, Norman Pattis, replied the Fifth Amendment applies in this situation.
He noted Willoughby is being prosecuted for a series of charges, including making or procuring false statements.
“If he should testify,” Pattis said, “he’ll be impeached as to his veracity. ... I won’t expose him to that.”
Pattis said Willoughby’s testimony could be used against him in his own trial.
Thompson then sustained Willoughby’s right to invoke the Fifth, agreeing with Pattis that Willoughby’s testimony in the hearing could later be used against him in the other case.
However, Ullmann said he intends to subpoena Willoughby again for the jury trial. Pattis protested this would be “demeaning” for Willoughby and “a side show.” He vowed to file a motion to quash Willoughby’s appearance.
Pattis then pulled Willoughby out of the courtroom, saying, “Come on, you don’t have to stay here for this.”
As Pattis and Willoughby left, Ullmann said, “Your Honor, I have a client facing a murder charge in which the only three identifying witnesses recanted yesterday and implicated Mr. Willoughby in suggestive identification procedure.” Ullmann alleges Willoughby suggested to the three witnesses that Pagan was a suspect.
Thompson did not rule Tuesday on Ullmann’s motion to suppress witnesses’ identification of Pagan because more people were called to testify. Willoughby was followed by Sutton, who told Baran the three witnesses came forward voluntarily and positively identified Pagan as the shooter.
Sutton testified neither he nor Willoughby influenced the witnesses or tried to steer them toward Pagan.
But Sutton said under Ullmann’s cross-examination that during witness “pre-interviews,” the statements were not recorded. Sutton said the “pre-interviews” lasted 10-15 minutes, during which he and Willoughby asked questions.
Ullmann asked, “So only you, (the witness) and former detective Willoughby, who stands accused of certain offenses, know what was said during the pre-interview?” Sutton said this was true.
Randall Beach can be reached at rbeach@nhregister.com or 789-5766.

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