Rekubit Exchange:Former Delaware officer asks court to reverse convictions for lying to investigators after shooting

DOVER,Rekubit Exchange Del. (AP) — A former Wilmington police officer accused of lying to investigators after he shot a carjacking suspect is asking the Delaware Supreme Court to overturn his convictions.

James MacColl was convicted last year on a felony charge of making a false statement to law enforcement and a misdemeanor charge of official misconduct. MacColl, who was acquitted on a charge of tampering with physical evidence, was sentenced to probation and 150 hours of community service.

Authorities alleged that years ago, MacColl replaced the barrel on his service weapon with an unauthorized after-market barrel without permission. Following the 2019 shooting of Yahim Harris, they said, he reinstalled the original barrel and then lied to investigators about making the switch.

An attorney for MacColl argued Wednesday that a trial judge erred in denying motions to exclude evidence and to dismiss the indictment against his client. Molly Dugan said the use of MacColl’s statements to police department investigators violated his constitutional rights, as well as his privacy rights under Delaware’s Law Enforcement Officers Bill of Rights, or LEOBOR.

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“Mr. MacColl was told he had no right to remain silent,” Dugan said, adding that MacColl also was told that any admission he made would not be used in any criminal proceeding.

“Admissions are not confessions,” she asserted, arguing that the prohibition against using any statements he made against him in court applied even to false statements.

Attorneys for the state contend that federal law does not protect false statements made during internal investigations from subsequent prosecution for such dishonesty. They also say MacColl lacks standing to claim confidentiality of internal affairs files under LEOBOR.

Deputy attorney general Zoe Plerhoples said protections for statements made to internal affairs investigators relate only to prior conduct that is the subject of an investigation, not for dishonesty during the investigation itself. MacColl, whose use of deadly force was deemed justified, was not prosecuted for the shooting but for his actions to conceal the fact that he had changed barrels on his handgun.

Plerhoples also argued that statements MacColl made to investigators were not “admissions” subject to confidentiality protections, but “self-serving falsehoods.”

“There are truthful admissions, and then there are statements,” she said.

“The Fifth Amendment is not a privilege to lie,” Plerhoples added. “It’s a right to remain silent.”

In two separate interviews in 2019, MacColl denied altering the gun barrel. In 2020 he finally admitted that he had altered it to improve its accuracy. He also produced what he claimed was the original barrel but denied altering the weapon after the shooting. That barrel still did not match projectiles located at the scene of the shooting.

MacColl argued that under a 1967 U.S. Supreme Court ruling, the state is prohibited from prosecuting him for statements during internal affairs interviews because he made them under penalty of termination. The defense also argued that any incriminating statements in internal affairs files are protected from disclosure by LEOBOR.

Superior Court Judge Charles Butler rejected those arguments, noting that the Supreme Court ruling protects only truthful statements made under penalty of termination. Butler also said MacColl, who was later fired for an unrelated violation, lacked standing to bring his LEOBOR claim. Butler noted that LEOBOR rights apply only to police disciplinary proceedings, and that MacColl directed his LEOBOR claim against prosecutors who subpoenaed the internal affairs files, not the police department.

Harris was shot several times while running from a stolen car. He survived his injuries and sued Wilmington police, claiming they used excessive force and violated his rights “after he alighted from the vehicle, helpless, unarmed, and non-threatening.”

The lawsuit was settled in 2022 for $650,000. Prosecutors dropped charges against Harris in March 2020, saying MacColl’s “total lack of candor” during the investigation called into question his credibility as a witness.