Investigative subpoena testimony most likely what took place with Baby Kate witnesses

By Rob Alway, Editor-in-Chief. 

LUDINGTON – On Wednesday, MCP reported that a hearing had been held in 51st Circuit Court regarding the June 2011 disappearance of then 4-month-old Katherine “Baby Kate” Phillips. We reported that the hearing was held behind closed doors, not open the public and that Prosecutor Paul Spaniola stated several interviews were conducted.

Spaniola would not comment any further to the purpose or reasoning behind the interviews. We have found out, through the advice of two local attorneys, that what most likely took place was not a hearing but rather an investigative subpoena testimony. This is similar to a grand jury, except Michigan does not have grand juries.

Editor’s note: MCP would not normally write a story based on speculation. However, the prosecutor would not comment on what type of procedure was conducted. Our two sources, both well versed in criminal law, agreed the investigative subpoena testimony was the only legal procedure he could have conducted legally. 

The names of our sources are not being posted.

According to the prosecutor, the interviews were conducted at the request of his office and approved by Judge Richard Cooper.

“Under MCL 767A.1, a prosecutor can ask the judge to issue an investigative subpoena to interview a witness,” one of our sources said. “The judge may issue it if he or she finds that a felony has been committed and that it is likely the witness has knowledge concerning the commission of the felony. The prosecutor’s application is to remain confidential.”

Currently, Katherine’s father, Sean Phillips, is serving a maximum prison sentence of 15 years for involuntary confinement of the baby. Mason County Sheriff’s Office and Ludington Police Department detectives announced in June 2012, immediately after Phillips’ sentencing, that they were opening up a murder investigation in connection with Baby Kate.

“I would assume the prosecutor thinks someone has more information but that person was not willing to come in voluntarily,” our source said. “This is a method by which the prosecutor can effectively force the potential witness to come in and give testimony. However, the statute does allow a person served with an investigative subpoena to object and also to have an attorney present during questioning.”

Spanioloa told MCP that “Michigan law states that in order to protect the rights of the persons interviewed and the integrity of the investigation, the following information is required to be kept confidential and may not be disclosed publicly: the identity of the persons interviewed, statements made by the persons interviewed, and the topics discussed.”

Our source said if any charge is ultimately filed as a result of the investigative subpoena testimony (i.e., a murder charge filed against Sean Phillips), then the prosecutor would have to give the defendant a transcribed copy of whatever the witnesses told him under oath.”

If another person was one of the witnesses subpoenaed, our source said, it would possibly mean that the judge made a finding before issuing the subpoena that he or she likely had knowledge of the commission of a felony (a new felony–some type of homicide–not the secret confinement kidnapping charge of which Sean was already convicted).

Also, the statute specifies that the contents of the prosecutor’s application for the investigative subpoenas shall be confidential, but the witnesses, themselves, are allowed to divulge that they participated in the proceedings.

Our source said this is the investigative subpoena was common practice. But, what isn’t common practice is for the prosecutor to not explain the process to the media, he said.

“Most county prosecutors treat these investigative examinations as pretty routine and don’t issue cryptic press releases about the proceedings,” our source stated.