Lying officers put court cases at risk

By Donna Hales and D.E. Smoot
Phoenix Staff Writers

July 19, 2008 11:04 pm

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Police officers lying, getting fired and then being put back to work by a merit board is a “big problem” for prosecutors and police, said U.S. Attorney Sheldon Sperling.
State and federal prosecutors say they can’t use such an officer as a witness in a criminal case, so some important cases might have to be dismissed because the officer’s testimony is deemed unreliable.
Merit boards have competing interests with police agencies and prosecutors, Sperling said. A board’s primary interest is not the impact their decision on the officer’s employment might have on pending criminal prosecution based on the officer’s testimony, Sperling said.
“Their primary interest is protection of the right of employees,” he said.
But police and prosecutors want to protect the validity of prosecutions with evidence that is going to stick, he said.
It is a problem in the 26-county U.S. Eastern District of Oklahoma, Sperling said.
Recent federal court decisions make it mandatory for prosecutors to turn over to the defense evidence in the personnel files of officers whose credibility is an issue. Such officers won’t be called as witnesses in federal courts, Sperling said.
“If a person premeditates and then lies about things of consequence, that is far more than problematic to me,” Sperling said.
It puts some prosecutions in jeopardy, according to Sperling and Muskogee County District Attorney Larry Moore.
Moore earlier cited to Muskogee Police the holdings in three cases, Brady v. Maryland, Giglio vs United States and United States v. Henthorn that pertain to the problem.
Any police officer’s personnel file containing information relating to acts of dishonesty is subject to being discoverable, Moore wrote. A criminal defendant could use it to impeach the officer’s testimony and credibility.
The problem is great enough that some states have taken the stance that a police officer who lies should be terminated as a matter of public policy.
The state of Washington published such an opinion in September 2007. So, a police officer there who lies has committed a firing offense.
The U.S. Supreme Court in United States v. Agurs determined prosecutors have a constitutional duty to turn over exculpatory information “voluntarily” to defense counsel.
The court then will make a ruling as to whether the defense has the right to use that information in court to impeach a police officer.
“If I fail to turn over Brady (material), I could be disbarred,” said First Assistant U.S. Attorney Doug Horn, a 13-year Department of Justice prosecutor. “Sanctions are very severe.”
A police officer’s credibility could influence the decision whether to prosecute a defendant, Horn said.
Horn made the statements during his June testimony in a merit board hearing for suspended Muskogee Police Officer Jeremy Jenkins. It was the department’s second attempt to fire Jenkins.
Jenkins was accused of lying during his testimony in a December merit board hearing on his alleged use of excessive force.
Two of three merit board members voted they didn’t think the officer “intentionally” lied in the earlier hearing and reinstated him.
Jenkins compared discipline against officers during the merit board hearing in December. He said a suspect running away from another police officer stopped and turned toward that officer. Jenkins testified the “officer struck him (suspect) with the flashlight. I was with the officer when it happened.”
But other officers said Jenkins was not at the scene at that time. The officer who used his flashlight testified he did so because he was alone at the time, and the suspect was moving toward him and cursing him.
He said drunks were hollering behind him.
The question now is, how can officers whose credibility is an issue be utilized as an officer without putting a potential criminal case in jeopardy, said Muskogee Police Chief Rex Eskridge.
Jenkins said this week his attorney is out of town, and he doesn’t want to comment, but that “It’s been a mess.”
The city merit board earlier had voted 2-1 against Jenkins’ first termination for the alleged use of excessive force. The police board of supervisors had voted to terminate Jenkins in both instances.
The alleged use of excessive force had taken place while another officer was booking a suspect into jail on a misdemeanor charge of driving under the influence.
The surveillance video showed Jenkins grabbed the suspect by the throat, slammed him against a steel door and then held him by the throat before slamming him against an outside wall. Jenkins described his actions at the time as an “escort technique.”
He told the merit board his conduct was immature and unprofessional. He denied his use of force was unjustified.
The suspect had turned around, and Jenkins said he took it as an aggressive stance and his intent was to take control of the situation.
Muskogee Police Lt. Bobby Lee, a tactical defense instructor, said Jenkins’ use of force could have resulted in serious trauma.
“In my opinion, he used lethal force that was not justified,” Lee testified.
The board ruled discipline against Jenkins for excessive force was appropriate but that termination probably was excessive. He was reinstated.
He said he was put on administrative leave the next day for allegedly lying in the excessive force hearing. In June, he denied he had lied in the December hearing.
“Everything an officer does depends on integrity and veracity,” Tulsa Police Capt. Paul Fields testified at the hearing.
Fields is developing a plan for Tulsa Police regarding Giglio and Brady compliance and works with integrity and compliance issues.
He said he was disappointed by the merit board’s decision, especially in light of the video showing abuse of a prisoner. He said he was again disappointed when the merit board later ruled Jenkins had not “intentionally” lied.
“I fired him — and they said no,” Eskridge said.

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