As a protester who has gone to court many times, the police witnesses are not known for their probity. In a trial for an arrest at the Pentagon, a police officer told the truth that he did not remember me, so my case was dismissed. Outside the courtroom, I saw another officer berating him for telling the truth. I am scheduled for trial on May 23 for joining with 12 others in trying to deliver a petition to Joe Biden. In my police report, an officer wrote I wanted to get arrested. Au contraire, I was there to help deliver a petition.
Chicago police officers block an entrance to City Hall during a march though the Loop calling for Mayor Rahm Emanuel to step down, December 9, 2015, in Chicago. (photo: Anthony Souffle/Chicago Tribune)
Cops Rarely Punished When Judges Find Testimony False, Questionable
By Steve Mills and Todd Lighty, Chicago Tribune
06 May 16
Late last year, Judge William Hooks heard the kind of case that occurs at Cook County's main courthouse every day and that, in most instances, ends with a guilty verdict and the defendant headed off to prison. This time, though, the case came to a different conclusion.
At the center was a veteran Chicago police narcotics officer who testified that he and his partner had abandoned an undercover drug surveillance to stop a minivan for failing to signal for a right turn — and discovered about 2 1/2 pounds of cocaine in the vehicle.
Lawyers for the two men arrested in the case said the story did not ring true and asked the judge to throw out the charges before trial. There was no way, they said, that officers from a specialized narcotics unit would break away from their surveillance for a traffic stop.
In language that was unusually blunt even for Hooks, the veteran jurist railed against what some other judges and lawyers who work in Cook County's criminal justice system say occurs far too often: police officers shading the truth in subtle ways or outright lying from the witness stand. The result, they said, is that sometimes the innocent go to prison, the guilty go free and the criminal justice system is tarnished.
Indeed, a Chicago Tribune investigation documented that troubling phenomenon, with more than a dozen examples over the past few years in which police officers, according to judges, gave false or questionable testimony — but experienced few, if any, repercussions.
It happened in court hearings that involved a $50,000 brick of cocaine and a $30 bag of heroin. It happened in gun cases in Cook County court and money-laundering hearings in federal court. It happened with big issues, such as whether the officers had witnessed a crime as it occurred, and with smaller details, such as the direction they were driving on patrol. And it happened with defendants who had a string of convictions and those who had no previous arrests.
Officers come to court well aware they have a built-in advantage because so many cases come down to their word against that of a defendant. As a result, they can testify with little fear of prosecution or discipline. The Chicago Police Department and the Cook County state's attorney's office almost never hold officers accountable in spite of claims they have a zero-tolerance policy for officers who do not tell the truth.
The issue so erodes trust in the criminal justice system that the U.S. Department of Justice, as part of its civil rights investigation into the Police Department, has asked the Cook County public defender's office to refer cases with evidence that officers testified falsely, the Tribune has learned.
Determining whether an officer lied on the witness stand or was simply mistaken can be difficult; a judge's ruling does not necessarily mean an officer intentionally testified falsely. Nonetheless, top police officials and prosecutors make little effort to get to the bottom of what some lawyers have come to call "testilying."
The exception: cases in which video undermines the testimony of the police officer. In those rare cases, prosecutors have acted.
The state's attorney's office, in response to inquiries from the Tribune, said Thursday that its Professional Standards Unit has begun a review of several cases to determine whether officers committed perjury. The office also issued a memo to all prosecutors reminding them of their duty to notify supervisors when an officer's conduct or credibility has been questioned, according to Sally Daly, an office spokeswoman.
What's more, the office said it would generate what is called a "disclosure notice" — a document that tells the defense that a witness's credibility has previously been called into doubt — for some of the cases highlighted by the Tribune. Prosecutors also are trying to determine why the notices had not already been generated in some of these cases. Numerous defense attorneys told the Tribune they have not received such notices in the past, let alone heard of such a document. State's Attorney Anita Alvarez also has ordered prosecutors to notify police agencies when a disclosure notice is generated about an officer.
Anthony Guglielmi, a Chicago police spokesman, said the department takes seriously any accusation that an officer has lied. He said department officials work with their "judicial and prosecutorial partners" to fire officers "upon confirmation of perjury."
"Police officers take an oath to enforce the law with the highest degree of honesty and integrity and there is simply no tolerance or exemption for anything less," Guglielmi said in a statement.
The notion that police officers provide false or incredible testimony with impunity is borne out by a handful of statistics. Over four years, from February 2012 to February 2016, 11 Chicago police officers had disciplinary charges brought against them for writing a false report or making a false statement. None of the cases, though, was for false testimony in court, according to police disciplinary records.
"We judges sit and listen to this stuff all the time," said retired Cook County Judge Marcus Salone, who spent 18 years on the bench at the Leighton Criminal Court Building at 26th Street and California Avenue and another two years as an Illinois Appellate Court judge before he retired in 2012. "But we don't do enough about it. That's a fact."
A clumsily hidden revolver
Last July, Officer Wahbe Askar took the witness stand to testify about his arrest of Steven Brown. Askar and his partner had taken Brown into custody in September 2014 after they had stopped Brown on the West Side in his Chevrolet Caprice.
The hearing, in Judge Joseph Claps' courtroom, was the kind of proceeding that is a necessary prelude to a trial and often foretells a defendant's fate. At issue was whether officers had authority to make an arrest; officers often justify their actions by saying they spotted evidence — drugs or a gun — out in the open.
If the defendant wins, prosecutors are likely to drop the charges. Lose, and a conviction at trial or a plea bargain is more likely.
Askar, who had joined the force in October 2011, testified that he saw a .45-caliber revolver clumsily hidden in the dashboard behind the car radio. Brown, who had no felony convictions, was charged with aggravated unlawful use of a weapon, according to police reports.
Assistant Public Defender Samantha Slonim sought to have the gun thrown out as evidence before trial. Throughout the hearing, Slonim was skeptical of Askar's claim that he spotted the gun jammed behind the car's radio, which he said was hanging loosely from the dashboard. Askar had not mentioned the radio in the police reports that he wrote, according to copies of the reports in court files.
Assistant State's Attorney Akash Vyas tried to shore up the prosecution case, leading Askar through a series of questions about the arrest. Claps, meantime, grew increasingly frustrated with the officer, even chastising him for being unprepared to testify, a transcript from the hearing shows.
A week later, the judge threw out the gun as evidence.
"I don't believe for a second that this police officer could see a gun behind this radio," the judge said.
Prosecutors then dismissed the case.
Askar declined to comment.
'Walking on eggshells'
Six months later, a strikingly similar scene played out in the same courtroom, before the same judge — and with the same prosecutor. It happened in January when Officer James Lynch and defendant Elliott Wills took the witness stand to testify about Wills' March 2015 arrest.
Like Slonim, Wills' lawyer was seeking to have the arrest thrown out.
According to Wills, a Columbia College graduate, he was sitting in his mother's 2007 BMW outside a friend's house on the city's Southeast Side, waiting for the friend to come out. Around 6 p.m., a police car drove by him, then backed up to where he was parked, he said. Officers approached and asked for Wills' identification. When he asked if he could get it from the back of the car, the officers ordered him out and handcuffed him.
Wills testified that the officers told him he could be waiting on a drug deal. He said the officers searched his car, prying open the locked center console where he had a gun that he kept for protection because of a brutal beating on the streets he suffered as a child — a story covered in some newspapers.
He had a holster in his closed backpack.
Wills was charged with aggravated unlawful use of a weapon.
Lynch's testimony was starkly different. He testified that he and his partner were on routine patrol when they spotted Wills sitting outside a vacant building. He testified that as he approached Wills' car, he saw him place a dark object in the center console. His partner spotted the holster, he said.
Lynch said the officers searched the car, finding a loaded revolver in the unlocked center console.
Wills' lawyer, Paul DeLuca, argued that the officers had no reason to stop Wills and that Lynch's story "doesn't fit."
Vyas, the prosecutor, agreed that the case came down to a credibility contest between Wills and Lynch. Defending Lynch, Vyas used a familiar prosecution tactic. If Lynch was going to lie, the prosecutor said, he would have made up a better story.
Claps agreed the case was about credibility. But the judge, who questioned the officer himself after DeLuca's cross-examination, said he just could not accept Lynch's testimony that Wills had waited until the officer was next to his car before he hid the handgun.
"That just isn't credible or believable," Claps said.
Prosecutors later dismissed the case.
Claps' assessment of the two cases was clear: He did not believe the officers' testimony.
But neither Chicago police nor Cook County prosecutors took action against Askar or Lynch, though Alvarez made bold statements about the problem of police lying last summer after her office charged three Chicago narcotics officers and a Glenview officer with perjury.
"We expect (truthful testimony) from our witnesses," she said, "and we demand it from our police officers."
That case, though, had video contradicting the officers' testimony.
In an interview, Wills, now 23, said he knew the officers were going to question him after the squad car drove by and slowed. As he waited a year for his case to be resolved, he said he feared going to prison. He said he knew police often are viewed as more credible witnesses than defendants.
"It was sort of walking on eggshells, worried about how it's going to turn out," he said.
Officers, DeLuca said, "say what they want and other officers back them up. They usually get their way."
3 evils in the community
In 2011, Officer Gildardo Sierra stood as a striking example of the Police Department's struggles to deal with police shootings. Between January and June, the nine-year veteran of the force shot three people, killing two of them. In the last of the shootings, captured on a police dashboard-camera video, he fired 16 shots at a South Side man named Flint Farmer, hitting him seven times, including while Farmer was on the ground.
That year, Sierra was emblematic of another of the Police Department's persistent problems: how officers testify in court. On March 21 — one day before the second of Sierra's three shootings — the officer took the witness stand in Hooks' courtroom in the trial of a man named George Davis on gun and marijuana possession charges. Sierra's testimony was central to the prosecution.
In 2009, Sierra and a partner, Steven Carroll, had chased after an SUV with two men in it. When the vehicle crashed, the men fled. according to Sierra. Davis allegedly threw a gun and a black backpack with marijuana in it to the ground as he ran. Yet Sierra testified that he and Carroll did not pick up the backpack or the loaded gun, instead leaving both on the front lawn of a Far South Side residence.
Davis maintained his innocence. He said he had been carjacked and had reported it to police. But police, believing Davis had made up the story, arrested him and he was charged with aggravated unlawful use of a weapon, possession of marijuana and filing a false report.
The gun and the backpack became the focus of the case. Davis' lead lawyer, Sam Adam Jr., called Sierra and Carroll's testimony "laughable," saying it was inexplicable that police would leave behind such important evidence. In his opening statement, he predicted the officers would commit perjury.
Assistant State's Attorney Christina Brewer defended the officers. She insisted that their accounts of the arrests were credible.
As the trial played out, Hooks took on a larger role. As judges do sometimes, he questioned the officers himself, asking why they had failed to collect the gun and the backpack when they were so key to the prosecution. A resident walking his dog found them and alerted a nearby officer.
In the end, Hooks said he didn't find Sierra or Carroll credible.
Then he did something else: he sought to make a larger point. He spoke about what he said were three evils in the community: guns, drugs and dishonest police.
"We all want to see guns and drugs off the street, but there's a method to doing it, and it depends on competent, informed, and I emphasize the last one, honest law enforcement," Hooks said as he acquitted Davis. "I have not seen that with respect to the Chicago police officers involved in this transaction."
Adam, in an interview, compared the case to the fatal police shooting of Laquan McDonald and how the reports of officers at the scene of the shooting differed dramatically from the dashcam video. The shocking video sparked protests across the city and embroiled Mayor Rahm Emanuel, as well as the Police Department, in scandal, prompting the Justice Department investigation.
"You start out lying about marijuana arrests, then maybe burglaries, then maybe gun arrests. It's a slide that we have watched build and build in Chicago," Adam said. "It's a system that rewards you not for telling the truth but for getting convictions. There is power in lies."
Carroll could not be reached for comment.
Sierra, who quit the force last August, told the Tribune he did not know Hooks had found his testimony untruthful, but he insisted he did not lie. What's more, he said he never heard from prosecutors or the Police Department about the questions that surrounded his testimony.
"Let's just say judges in Cook County are lenient toward criminals with guns," he said.
'A gift that fell from heaven'
The arrests of Miguel Rodriguez and Antonio Garcia, and the seizure of a $50,000 brick of cocaine in the minivan, were a big deal. Anybody carrying that much cocaine is a significant player in the drug business. Getting them and their product off Chicago's streets was a victory.
Their lawyers, Joseph Lopez and Fred Acosta, believed they could show that the officers had given a false account of how they found the cocaine. That, in turn, could lead to the cocaine being thrown out as evidence and the charges dropped. The lawyers' plan: use one officer's own words to prove it.
At a pretrial hearing last November, Lopez and Acosta called the officer, Jorge Martinez, as their only witness. Martinez testified that he and other narcotics officers were conducting undercover drug surveillance on the city's Southwest Side on Aug. 13, 2013, when they saw a beige minivan make a right turn without signaling. Martinez said he and his partner followed the van, hit their emergency lights and pulled it over.
He testified that as he approached the van, he noticed a "clear knotted bag" on the floor. Suspecting it contained crack cocaine, he and his partner took the two into custody. Martinez said he searched the van and found the brick of cocaine under the front seat.
After listening to Martinez's testimony, Judge Hooks began to question the officer. His skepticism was evident.
"So, let me understand this correctly," he said. "You just happened to have been parked on the street when this vehicle came past and committed a traffic violation, and then you stopped it and the $50,000 worth of narcotics was in the vehicle?"
In closing arguments, Assistant State's Attorney Michael Vojta defended the officers. Lopez and Acosta, however, said Martinez's account made no sense. An undercover team, they said, would never break from surveillance to stop a car because it had failed to signal.
Hooks did not buy it either.
"This case is a very clear falsehood by the sole testifying witness," the judge said, according to a court transcript. "The motion is granted, and this huge amount of narcotics is quashed and suppressed thanks to Officer Jorge Martinez."
Martinez could not be reached for comment.
With the evidence thrown out, prosecutors had no case. Hooks made it clear that he had no choice but to let the two men go free — though he left no doubt he believed they were trafficking in drugs.
"So, you reap the benefit of what I feel was a law officer or police officer that lied before me after he raised his right hand," Hooks told the two at a hearing in January when prosecutors dropped the case, according to a transcript. "You got a gift that fell from heaven."
A lieutenant colonel and judge advocate during a two-decade Marine Corps career, Hooks presides in a third-floor courtroom at the Leighton Criminal Court Building that is decorated with framed American flags and portraits of Frederick Douglass and Ida B. Wells. With a bald pate and bushy salt-and-pepper mustache, he has a fairly baleful appearance, though the slight drawl he retains from his native Memphis cuts against that.
He became a judge in 2008 after spending 17 years in his own small law firm, and he quickly began to set himself apart. In some cases, he does more than just call out the officers. After he quashed the seizure of the cocaine in the Rodriguez and Garcia case, Hooks told Vojta, the prosecutor, that he wanted the case brought to the attention of Vojta's supervisor, as well as to officials at the Police Department. He was concerned, he said, whether Vojta knew how Martinez was going to testify.
Indeed, Hooks said he wanted prosecutors to explain why Martinez would not be charged criminally for his testimony.
"I assume (police officers) will be as truthful as any other person who testifies, and I want to know what the State's Attorney's office is going to do about this situation," Hooks told Vojta, according to a transcript. "... You didn't have a case against these defendants. You had a case against that police officer."
A month later, a supervisor, Assistant State's Attorney Brian Sexton, came to court and told Hooks the office was looking into the matter.
Four months later, Martinez remains on the street, though prosecutors told the Tribune they were reviewing his testimony.
The 'safe way'
By their own admission, judges know that police officers sometimes lie on the witness stand. But many do little — or say nothing — about it. Indeed, a task force appointed by Mayor Emanuel to recommend reforms in the wake of the McDonald shooting found that police officers sometimes lie, and that judges, prosecutors and police officials do too little about it.
"Although some judges will go on record expressly finding that a police officer's testimony is not credible, explicit findings are the exception," the report said.
In early 2012, Judge Dennis Porter, a veteran judge at the Leighton courthouse, had a drug case in which both sides agreed that witness credibility was the key issue. Assistant State's Attorney Michelle Spizzirri argued that Porter should believe the testimony of Officer Garland Coleman, at the time a department veteran of nearly 16 years who testified that he was conducting surveillance when he saw a woman named Marilyn Monroe drop a $30 bag of heroin as he and his partner approached her.
Known as drop cases, they have raised questions at the criminal courthouse about police conduct for decades.
Assistant Public Defender Daniel Walsh argued that Monroe was more credible, though she had four felony prostitution convictions. Monroe testified that she came out of a store and that Coleman and his partner, Robert Ruiz, stopped her, threw her down and illegally searched her.
That, Monroe testified, was when officers found the heroin she admitted carrying. Walsh asked Porter to throw out her arrest.
While saying Monroe was impeached by her prostitution convictions, Porter ruled that her testimony was more credible than Coleman's. He said he did not believe Coleman's testimony that he and his partner had witnessed Monroe drop the bag of heroin.
"She was rousted," Porter said, according to a transcript of the hearing, "and she was searched like she said she was searched."
Coleman declined to comment.
Getting tough with police and prosecutors does not come without peril. In his early years on the bench, Salone said he often called out officers if he found their testimony unbelievable. To let such testimony go without comment, he said, risked making judges accomplices of sorts.
That, he said, was unacceptable.
"I didn't see a need to beat around the bush," Salone recalled in a recent interview. "I'd just say, 'Officer, I don't believe you.'"
But Salone said someone filed a complaint against him with the Judicial Inquiry Board, the state agency that oversees judges, after he called out officers in a case, and he said that he was admonished to watch his language. Prosecutors, meantime, began submitting requests to have other judges hear high-profile cases.
So Salone said he began to call out fewer officers. Instead, he simply found in favor of the defendant, without extensive comments. He achieved the same result without antagonizing police or prosecutors.
It was, he said, the "safe way."
Critical finding removed from record
Even when judges make particularly strong findings, their decisions do not always stand. When Adriana Gallardo sought to have her incriminating statements to authorities thrown out of her 2013 federal money laundering case, U.S. District Judge John Grady made clear the issue was essentially a credibility contest over the circumstances of Gallardo's interrogation.
On one side was Gallardo, who had a criminal history and who the judge said had a "deep involvement in the nefarious trafficking of large amounts of cocaine." On the other side was an IRS agent, William Desmond, and a veteran Chicago police sergeant, George Karuntzos, who were working on a federal drug task force.
Though Grady said that he was acting with "great reluctance" because of his regard for law enforcement, he sided with Gallardo. The judge said the officers had "misled" him about whether Gallardo had asked for a lawyer or waived her right to counsel and spoken willingly. His rationale: that someone with so much experience with the criminal justice system — and so hostile to the officers who stopped her — would no doubt ask for a lawyer, as well as the government's failure, in his mind, to prove she did not make such a request.
"It's with regret that my duty calls upon me to find that law enforcement officers, and particularly federal law enforcement officers, have been untruthful," Grady concluded, according to a transcript of the May 2014 hearing.
In spite of Grady's finding against the officers, it ultimately had no bearing on the outcome of the case. The case was transferred to Judge Amy St. Eve, and a jury convicted Gallardo of nine counts of money laundering last year.
What happened next was unusual, however. Federal prosecutors asked St. Eve to narrow Grady's ruling — essentially to strike from the record the judge's finding that the officers' testimony had not been credible. Prosecutors believed Grady's ruling was wrong and could have "significant professional consequences" for the officers.
St. Eve, a former federal prosecutor, granted the request. She ruled on somewhat technical grounds that Grady's credibility finding was unnecessary after he had determined that Gallardo had invoked her right to a lawyer before the officers began questioning her.
"Agent Desmond and Sergeant Karuntzos are dedicated and long-serving law enforcement officers, and we respectfully disagree with Judge Grady's adverse credibility findings," said Joseph Fitzpatrick, a spokesman for the U.S. attorney's office. "As we advised the District Court, we felt Judge Grady's findings were not warranted in light of the conflicting and inconsistent testimony offered by the defendant, and the fact that his ruling did not appear to be based on any observations about the officers' demeanor on the stand."
Grady, now retired, declined to comment.
Gallardo's lawyer, Joseph Lopez, said in an interview that he was disappointed that prosecutors sought to strike Grady's finding. With St. Eve's ruling, an important finding — one reflecting the problems that he believes beset the justice system — had simply disappeared.
"The prosecutors are protecting their employees," he said. "They had to rehabilitate their images."
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