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https://www.nytimes.com/2018/03/18/nyreg...-york.html

‘Testilying’ by Police: A Stubborn Problem

By Joseph Goldstein
  • March 18, 2018
Officer Nector Martinez took the witness stand in a Bronx courtroom on Oct. 10, 2017, and swore to tell the truth, the whole truth, and nothing but the truth, so help him God.
There had been a shooting, Officer Martinez testified, and he wanted to search a nearby apartment for evidence. A woman stood in the doorway, carrying a laundry bag. Officer Martinez said she set the bag down “in the middle of the doorway” — directly in his path. “I picked it up to move it out of the way so we could get in.”


The laundry bag felt heavy. When he put it down, he said, he heard a “clunk, a thud.”

What might be inside?

Officer Martinez tapped the bag with his foot and felt something hard, he testified. He opened the bag, leading to the discovery of a Ruger 9-millimeter handgun and the arrest of the woman.

But a hallway surveillance camera captured the true story: There’s no laundry bag or gun in sight as Officer Martinez and other investigators question the woman in the doorway and then stride into the apartment. Inside, they did find a gun, but little to link it to the woman, Kimberly Thomas. Still, had the camera not captured the hallway scene, Officer Martinez’s testimony might well have sent her to prison.
When Ms. Thomas’s lawyer sought to play the video in court, prosecutors in the Bronx dropped the case. Then the court sealed the case file, hiding from view a problem so old and persistent that the criminal justice system sometimes responds with little more than a shrug: false testimony by the police.
“Behind closed doors, we call it testilying,” a New York City police officer, Pedro Serrano, said in a recent interview, echoing a word that officers coined at least 25 years ago. “You take the truth and stretch it out a little bit.”
An investigation by The New York Times has found that on more than 25 occasions since January 2015, judges or prosecutors determined that a key aspect of a New York City police officer’s testimony was probably untrue. The Times identified these cases — many of which are sealed — through interviews with lawyers, police officers and current and former judges.
In these cases, officers have lied about the whereabouts of guns, putting them in suspects’ hands or waistbands when they were actually hidden out of sight. They have barged into apartments and conducted searches, only to testify otherwise later. Under oath, they have given firsthand accounts of crimes or arrests that they did not in fact witness. They have falsely claimed to have watched drug deals happen, only to later recant or be shown to have lied.
No detail, seemingly, is too minor to embellish. “Clenched fists” is how one Brooklyn officer described the hands of a man he claimed had angrily approached him and started screaming and yelling — an encounter that prosecutors later determined never occurred. Another officer, during a Bronx trial, accused a driver of recklessly crossing the double-yellow line — on a stretch of road that had no double-yellow line.
In many instances, the motive for lying was readily apparent: to skirt constitutional restrictions against unreasonable searches and stops. In other cases, the falsehoods appear aimed at convicting people — who may or may not have committed a crime — with trumped-up evidence.
In still others, the motive is not easy to discern. In October 2016, for example, a plainclothes Brooklyn officer gave a grand jury a first-person account of a gun arrest. Putting herself in the center of the action, the officer, Dornezia Agard, testified that as she approached a man to confront him for littering, he suddenly crouched behind a van, pulled from his waistband a dark object — later identified as a gun — and threw it on the ground.
“P.O. Agard testified that she heard a hard metal object hit the ground,” according to a letter the Brooklyn district attorney’s office wrote summarizing her testimony.
But prosecutors lost faith in her account in July 2017, after learning from other officers that she was not among the first officers on the scene. Officer Agard had arrived later as backup, according to the letter, which noted that the gun charges against the man were later dismissed. The prosecutors did not address why Officer Agard claimed to be a witness, or why the other officers present seem to have allowed her to process the arrest.
Police lying raises the likelihood that the innocent end up in jail — and that as juries and judges come to regard the police as less credible, or as cases are dismissed when the lies are discovered, the guilty will go free. Police falsehoods also impede judges’ efforts to enforce constitutional limits on police searches and seizures.
“We have 36,000 officers with law enforcement power, and there are a small handful of these cases every year,” said J. Peter Donald, a spokesman for the Police Department, the nation’s largest municipal force. “That doesn’t make any of these cases any less troubling. Our goal is always, always zero. One is too many, but we have taken significant steps to combat this issue.”
Shrouded, but Persistent
The 25 cases identified by The Times are almost certainly only a fraction of those in which officers have come under suspicion for lying in the past three years. That’s because a vast majority of cases end in plea deals before an officer is ever required to take the witness stand in open court, meaning the possibility that an officer lied is seldom aired in public. And in the rare cases when an officer does testify in court — and a judge finds the testimony suspicious, leading to the dismissal of the case — the proceedings are often sealed afterward.

Still, the cases identified by The Times reveal an entrenched perjury problem several decades in the making that shows little sign of fading.
So far in 2018, a Queens detective has been convicted of lying in a drug case and a Brooklyn detective has been arrested amid accusations that he fabricated the results of a photo lineup. These cases returned the phenomenon of police lying to the public eye, leaving police officials to defend the integrity of honest officers.
Kevin Richardson, the Police Department’s top internal prosecutor, said he believed so-called testilying was nearing its end. “I think it’s a problem that’s very much largely on its way out,” he said.
Indeed, it’s tempting to think about police lying as a bygone of past eras: a form of misconduct that ran unchecked as soaring street violence left the police overwhelmed during the 1980s and early 1990s and that re-emerged as police embraced stop-and-frisk tactics and covered up constitutional violations with lies.
But false testimony by the police persists even as crime has drastically receded across the city and as the Police Department has renounced the excesses of the stop-and-frisk years.
Some policing experts anticipate that the ubiquity of cameras — whether on cellphones, affixed to buildings or worn by officers — will greatly reduce police lying. For the moment, however, video seems more capable of exposing lies than vanquishing them.
Memory and Manipulation
In two recent cases, The Times found, officers appear to have given false accounts about witness identifications. These cases are particularly troubling because erroneous identifications by witnesses have been a leading cause of wrongful convictions.

After a 2016 mugging near a Brooklyn subway station, the police arrested a group of four people, one of whom was found to be in possession of the victim’s wallet. In preparing the case, prosecutors sought to pin down a few basic facts. Had the police brought the victim, who was punched and had his wallet taken, to positively identify the four suspects after they were taken into custody? If so, what had the victim said?
Getting a straight answer from the arresting officer, Chedanan Naurang, proved nearly impossible. It had been Officer Naurang’s quick thinking that had made the arrest possible: Having lost the suspects at one subway station, he followed a hunch and drove one stop down the line, where he caught up with the four men after they got off the train.
But certain details Officer Naurang gave prosecutors kept shifting over the next year, according to a February 2017 letter that prosecutors wrote in which they summarized his fluid story.
Officer Naurang said at one point that the identification had occurred inside a police station when the victim passed by the holding cells, saw the men and confirmed their involvement in the crime.

A few weeks later, he backtracked. No, the victim had actually never gotten to see the suspects at the police station, Officer Naurang explained. Instead, the victim had gotten a chance to view them on the street, shortly after their arrest. That’s when the victim got out of the police vehicle in which he had been waiting, Officer Naurang said, and pointed to one of the four men, identifying him as an attacker.
This version of events, however, was at odds with the recollection of the police officer who had driven the victim to the scene of the arrest. That officer, Christopher McDonald, told prosecutors that the victim had remained in the back seat while viewing the four suspects. And Officer McDonald said that the victim couldn’t say whether they were his assailants. He thought he recognized their clothing, but wasn’t sure.
Because of Officer Naurang’s changing story, prosecutors dropped the case against the men as part of a deal in which all four pleaded guilty to charges stemming from a second mugging they were accused of the same night.

Another case in which the police gave false information about a witness identification came after a carjacking in Brooklyn in 2015. In that case, the police began to focus on two suspects based on an anonymous tip and a fingerprint. A detective, Michael Foder, testified that he had then prepared two photo lineups — one for each suspect.
Each consisted of the suspect’s photograph printed on a sheet of paper, alongside the photos of “fillers” — people of vaguely similar appearance with no connection to the crime. The hope was that the victim, a livery cabdriver, might recognize the suspect’s photo and pick him out — an outcome that prosecutors regard as a strong indicator of a suspect’s guilt.
That’s what happened, Detective Foder testified, when the victim came to the precinct to view the photo lineup for one suspect in November 2015 and returned in February 2016 to view one for the second suspect.
But the photo lineups that Detective Foder had prepared — and were submitted as evidence in federal court — were fabrications. It was a federal prosecutor who first realized that many of the photos used in the lineups were not yet available at the time Detective Foder claimed to have shown them to the victim. The reason? The photos of some of the fillers had yet to be taken.
The lineup that was said to be from November 2015 included filler photographs that were not taken until December. And the one he claimed to have administered in February featured photos that were taken in March.
Last month, Detective Foder was indicted on federal perjury charges. The indictment accuses him of lying to “conceal the fact that he had falsified documentation” related to the photo lineups. Detective Foder’s lawyer entered a plea of not guilty on the detective’s behalf.
A prosecutor discovered that many of the photos in the array Detective Foder said he had shown the victim Feb. 14, 2016, were not even taken until after that date.
Justifying a Search
Detective Foder’s actions appear to be aimed at tilting the scales toward guilt.
But more often, The Times found, false statements by the police seem intended to hide illegal searches and seizures, such as questionable car stops or entries into apartments that result in officers finding guns or drugs. If the truth were to emerge that the case began with an illegal police search, the evidence would quite likely be thrown out and the case dismissed.
The story that Christopher Thomas, a plainclothes police officer, told a grand jury in December 2014 sounded plausible enough. As he approached a parked car with a flashlight in hand, he said, he saw a man in the driver’s seat pull a firearm out of his waistband and stick it between the car’s center console and the front seat. The driver was indicted on gun-possession charges.
But by July 2015, as video of the encounter was about to emerge, Officer Thomas started backtracking. In conversations with the assistant district attorney on the case, Officer Thomas acknowledged that he had not seen the driver pull the gun from his waistband. In fact, he said, he had never seen the driver with his hand on the gun.
“He stated to the A.D.A. that he did not know why he had testified to those facts before the grand jury,” according to an email prosecutors later sent to a defense lawyer. This email, as well as several similar letters that prosecutors sent in other cases, were provided to The Times by Cynthia Conti-Cook, a Legal Aid Society lawyer who has been compiling a database of police misconduct allegations.
The video undermined Officer Thomas’s original claim of having seen the gun at the outset. It shows Officer Thomas and his partner approach the car and shine their flashlights inside. Their demeanor on the video suggests that they had seen nothing so far to cause alarm. One of the two officers — either Officer Thomas or his partner — is so unconcerned that he bends down for about seven seconds, and appears to tie his shoe.
Video emerged that undermined Officer Christopher Thomas’s original claim of having immediately spotted a gun in the car.

Brooklyn prosecutors dismissed the gun case and, according to the prosecutors’ email, informed the Police Department’s Internal Affairs Bureau about the problems with Officer Thomas’s account. An internal police disciplinary process led to Officer Thomas losing 30 vacation days and being placed on dismissal probation for a year, according to a person familiar with the case.
He is now a sergeant in a narcotics unit.
Officer Thomas is not the only officer to have tried to withdraw earlier testimony as soon as video of an encounter emerged, or was about to.
“I misspoke when I was in grand jury,” Sean Kinane, an officer with the 52nd Precinct in the Bronx, testified in federal court in 2016. That was all the explanation he gave, or was asked to give, for why he was recanting his earlier testimony about witnessing what appeared to be narcotics transactions in the moments before he stopped a heroin dealer in the street.
That claim, if true, would have given the police justification to stop the man, who was discovered to be carrying 153 glassine envelopes of heroin and eight bags of crack cocaine. But after the drug dealer managed to get a video recording of the encounter, Officer Kinane’s story changed. He had misspoken.
Reached by telephone for comment, Detective Kinane — he was promoted in 2017 — hung up.
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