Myth #13

Not shown at Darlie’s trial was a police surveillance video showing a solemn prayer service. Police had bugged the gravesite without a court order, so the material was not allowed at trial. Police officers “took the Fifth” and refused to answer any questions about the case.

On June 14th, eight days after the murders, there was a graveside prayer service for Devon and Damon prior to the birthday party. Officers placed a microphone nearby to monitor what was said. This is an investigative tool that has been used for decades by law enforcement, because a guilt-ridden perpetrator may confess at their victim’s grave. Police also routinely attend victims’ funerals to watch for suspicious activity. In this case, the tapes yielded no exculpatory evidence. Nevertheless, Greg Davis turned them over to the defense before the trial began.
(Vol. 43, Sec. 4408)

Toward the end of the defense’s case, Doug Mulder called Jim Patterson to the stand. Detectives Patterson and Frosch had authorized the placement of the microphone in the cemetery. Mulder accused Patterson of “committing a federal felony, a conspiracy, a plot” and told the detective he “was going to jail.” It was a last-ditch effort to save his case, because Mulder knew he was losing, and losing badly.
Patterson: If you’re saying that I violated some state or federal law, then I’m not going to answer until I have legal counsel.
Mulder: Well, I suspect you better get legal counsel then, because I’m suggesting to you that that is exactly what you did.
(Jimmy Patterson, Secs. 4172-4173, 4425, 4431)

So Patterson and Frosch followed Mulder’s advice. They retained attorneys who advised them to invoke their Fifth Amendment privilege against self-incrimination. Mulder’s strategy, of course, was to prejudice the jury by forcing the officers to repeatedly take the Fifth. The Court, however, recognized that this was a legal issue beyond the scope of the trial, and ruled that the detectives could not be questioned about the tapes.
Judge Tolle: The court holds this is improper impeachment evidence. The officer’s action do not reflect upon his character for truthfulness or untruthfulness regarding his testimony in this case. Any recordings made were not admitted as evidence, nor was there an attempt to admit them as evidence. For these reasons, I find that the potential prejudice outweighs the probative value of this evidence, and the defense is ordered not to go into it.
(Vol. 43, Sec. 4414)

Remarkably, Greg Davis told the Court that, although the defense had not entered the tapes into evidence, he had no objection if they wanted to show them to the jury.
Davis: I don’t think there’s any problem with Mr. Mosty or Mr. Mulder offering that videotape. I mean, whatever was recorded out there, we certainly don’t have a problem with them doing that.
(Vol. 43, Sec. 4415)

Additionally, Judge Tolle’s ruling did not prevent the defense from questioning the officers about any other aspects of the case, as long as they avoided reference to the legality/illegality of the gravesite monitoring.
Mr. Pickell: Your Honor, Detective Frosch would assert his Fifth Amendment right.
Judge Tolle: Concerning the testimony as regards to the recording devices or the microphones at the cemetery, and only regards that, concerning only that portion; is that correct?
Mr. Pickell: That is correct, your Honor.
(Vol. 43, Sec. 4406-4407)

The defense declined to show the tapes to the jury. Why they did not is open to speculation, but it’s certainly not because they were prevented from doing so. Both sides acknowledged that the tapes were of poor quality, so perhaps nothing was to be gained by admitting them into evidence in the first place. I believe that they weren’t shown because Mulder’s sole objective all along was to force the officers to repeatedly plead the Fifth, thereby implying that they had something to hide, that they were out to frame Darlie. When this strategy backfired, there was no point in pursuing the tapes any further. It’s also possible that the tapes did not show a grieving Darlie, as supporters have contended. Whatever Mulder’s motivation was, he did not show them, nor did he question the officers any further, even though he could have.

Darlie Kee and Darin Routier subsequently sued the city of Rowlett, Patterson and Frosch, and the assistant district attorney for invasion of privacy and search and seizure violations. On May 28, 2001 the 5th Circuit Court of Appeals ruled against them, stating that there is no expectation of privacy in a publicly accessible cemetery.
http://www.rcfp.org/browse-media-law-resources/news/wiretaps-burial-not-considered-invasion-privacy

Conclusion
Darlie’s supporters have continually distorted and misrepresented the facts surrounding this incident. Patterson and Frosch were being falsely accused of breaking state and federal laws. It was their constitutional right to plead the Fifth until the issue could be resolved post-trial. The defense was not prevented in any way, shape, or form from questioning these officers regarding other aspects of the case. And finally, the defense had free reign to show the video and audio tapes, despite the fact that they had never entered them into evidence.

An almost constant refrain from supporters is, “Patterson took the Fifth! He must have had something to hide!” What these same supporters are loathe to admit is that Darlie herself took the Fifth at a pre-trial custody hearing. From the Dallas Morning News, July 4, 1996, by Michael Saul: “Ms. Routier, who sat in the witness stand Wednesday for the first time since her June 18th arrest, invoked her Fifth Amendment right not to incriminate herself…before taking the stand, Ms. Routier’s attorneys instructed her not to answer any questions.”