Witness-tampering claimed

Jace Radke

Friday, Nov. 5, 2004 | 9:13 a.m.

U.S. Magistrate Peggy Leen heard arguments Thursday concerning a civil rights case and allegations that lawyers for Courtesy Mitsubishi are tampering with witnesses.

After about 90 minutes Leen decided that she needed to hear from the witness who was allegedly tampered with and ordered a subpoena. Another hearing will be scheduled to hear testimony from the witness, Leen said.

The lawsuit was filed in June 2003 by Gary T. Freeman against Courtesy Mitsubishi after he was fired by the dealership in April 2002. According to the suit Freeman was fired after "more than two years of being subjected to a daily barrage ... of racial slurs and race-based jokes."

The suit states that the reason Freeman was given for his firing on a separation report was "Token -- too many coloreds in the building."

The tampering allegations are laid out in a motion filed in October by Freeman's attorney, John Tofano, and asks that Courtesy be held in contempt.

The motion states that Baron Harmon, Courtesy corporate counsel, had visited some of Freeman's former co-workers, who are among the witnesses in the case, and told them to change their statements. One of those witnesses, Henry Day III, has been ordered to appear at a future hearing.

Day appeared highly agitated and was unwilling to cooperate and answer questions during a September deposition in the case, according to the motion.

Day "began to cry, bleed from his nose, spit and yell," the motion states.

Attorney Brent Bryson, who does not represent Freeman or Courtesy, has since filed an affidavit stating that an unnamed client of his who had worked with Freeman at Courtesy and was a witness in the case came to him in a frightened state.

Bryson said the client, revealed to be Day in testimony Thursday, was told by Courtesy's corporate counsel that "client needed to change client's statement because if client did not, client and/or client's relatives would be dealt with appropriately."

Ellen Winograd, who is representing Courtesy, calls the allegations of witness tampering baseless, and that they are the result of Day not testifying as the plaintiff had hoped.

"This is about a plaintiff and a lawyer who don't like what a witness said," Winograd said. "They are threatening criminal prosecution to gain an advantage in a civil case."

In a reply to Tofano's motion, Winograd alleges that Freeman was paying Day for written statements against Courtesy and that Day met with Harmon to come clean on what he was doing.

Bryson took the stand and was questioned closely by Leen about attorney-client privilege, and whether or not he may have violated it by talking to Tofano generally about his meeting with Day.

Bryson said that he checked with the Nevada Bar Association before talking to Tofano and that he felt comfortable with filing an affidavit that only refers to an unspecified "client."

Tofano's contempt motion asks that sanctions be placed on the defendant and that Leen rule in favor of Freeman in the underlying civil rights case that asks for more than $5 million in compensatory and punitive damages.