A Pima County judge who videoed himself making death threats before firing a gun toward a man he suspected of stalking him may take the Fifth when called to testify under oath about the incident, his longtime attorney said.
Justice of the Peace Adam Watters, who was not criminally charged in the shooting after a prosecutor determined a conviction was unlikely, stands to jeopardize that favorable legal outcome if Wattersโ testimony was to deviate substantially from what he previously told investigators.
The Fifth Amendment to the U.S. Constitution allows someone to refuse to answer questions in court to avoid self-incrimination.
โThe default position is donโt testify,โ said Tucson attorney Michael Storie who has represented Watters since the Feb. 14 shooting incident. The decision is ultimately up to the judge, Storie said.
Watters, 59, has been subpoenaed to appear Wednesday, Oct. 27, at a evidentiary hearing requested by the lawyer for Fei Qin, 38, a Tucson landlord accused of stalking the judge by repeatedly driving by Wattersโ home in the Catalina Foothills and leaving trash in the front yard.
Tucson defense attorney Jeffrey Grynkewich, who is seeking to have the arrest thrown out, claimed in a court filing that Watters acted as a โvigilanteโ and did not have reasonable grounds to make a citizensโ arrest.
He said the judge used โillegal and excessive forceโ when he ordered Qin out of Qinโs vehicle at gunpoint and threatened to โblow your (expletive) head offโ before firing a round that landed inches from Qinโs feet.
A key issue before the court will be whether Watters was acting in his private capacity or whether he was โoperating as private policemanโ for the Pima County Sheriffโs Department when he fired what he called a โwarning shotโ at Qin.
Deputies, who arrived moments after the shooting, โfully endorsedโ Watters actions by taking Qin into custody while letting Watters go free, the defense motion said.
It said sheriffโs detectives took several steps that favored Watters.
For example, they allowed Wattersโ sister to keep, overnight, a cellphone the judge used to record his interaction with Qin just before the shooting. The next day, investigators met with Watters and asked for a copy of the footage but did not seize the phone for a forensic inspection, a sheriffโs case report said.
Cochise County Attorney Bryan McIntyre, who is prosecuting the case because the Pima County Attorneyโs Office bowed out over a conflict of interest, argued in response to the defense motion that Watters was operating on his own.
โThe police at no point prior to their arrival participated or encouraged,โ the judgeโs actions, McIntyre said in a court filing.
In the weeks before the shooting, Watters called the sheriffโs department several times to report garbage dumped in his yard. Detectives said Watters had recently handled an eviction case Qin was involved in and said some of the trash left in the judgeโsโ yard included mail addressed to tenants Qin had hoped to evict.
Storie predicted the defense effort to quash the arrest will fail. โThis seems like a thin argument to get the charges dismissed,โ he said.
