Prosecutors Show an Increasing Willingness To Go After Law Enforcement for Alleged False Testimony
It’s every police officer’s worse nightmare, being accused of lying on the witness stand about a case that you investigated. Whether you are a local police officer, FBI or DEA Agent, a U.S. Secret Service Agent, or a Corrections Officer your integrity and perceived honesty are priceless. Once they are called into question, it may be impossible to earn back your reputation. Shockwaves were sent through the Montgomery County, Maryland Police Department on Thursday August 7, 2014 when a local grand jury impaneled in Rockville handed down a misdemeanor indictment of Officer Colin W. O’Brien for alleged false testimony, under oath, in an unlawful possession of drug paraphernalia case. The criminal charge against Officer O’Brien, a six year veteran of the police department, is the latest in a string of recent cases around the country that should give every local and federal law enforcement officer pause, before standing in the witness box and raising their right hand and swearing “to tell the truth, the whole truth and nothing but the truth so help me God.”
It all started on November 1, 2013 when Officer O’Brien issued a criminal citation to a Silver Spring man for unlawful possession of drug paraphernalia. Officer O’Brien later testified at the man’s trial on February 3, 2014. At that time, the officer’s testimony was called into question and the judge found the Silver Spring man not guilty of the narcotics paraphernalia charge. Subsequently, detectives in a different police district from Officer O’Brien were asked to investigate Officer O’Brien’s testimony and the circumstances that surrounded it. Prosecutors presented the detectives’ findings to a grand jury who voted to charge the officer with one misdemeanor count of perjury, in violation of Maryland Code Section 9-101. If found guilty, Officer O’Brien could face up to 10 years’ in prison and could be stripped of his police powers. He has been suspended with pay and will remain in this status until the disposition of the case. Officer Colin like every person charged with a crime in this country, is presumed innocent until proven guilty.
This case comes on the heels of two other high profile cases where police officers in Los Angeles and Baltimore were convicted of perjury, stemming from their testimony and allegedly filing false police reports in two separate narcotics cases. The Los Angeles Times reported that on February 13, 2014, Officer Manuel Ortiz was convicted by a Los Angeles jury of perjury stemming from alleged false testimony he gave during the preliminary hearing in 2008. At the preliminary hearing, Ortiz testified that he never participated in the search for drugs in the narcotics case at issue. However, Officer Ortiz’s field notes stated that he had, “assisted in locating evidence.” Then at trial two other officers, Evan Amio and Richard Samuel, testified that as the two of them approached the suspect, the suspect threw a small black box to the ground, which broke open and revealed crack rocks and powder cocaine. Both officers testified that they immediately recovered the drugs. Then in a jaw dropping moment, the defense attorney produced a grainy video which showed that the officers searched for 20 minutes and then it was Officer Ortiz who found the black box stuffed with cocaine. One officer can be heard on the video stating, “Be creative in your writing” referring to the police report. Another can be heard saying, “Oh yeah, don’t worry. . . “. On the video, after Officer Ortiz found the cocaine, the other two officers can be heard congratulating him. One of the officers exclaimed, “Manny Ortiz!” Another shouted, “Where was it at, Mac dawg?” All three officers were tried together in 2012. Officers Amio and Samuel were found guilty of perjury and sentenced to probation and community service. The jury in 2012 hung 11 to 1 to convict Ortiz. Prosecutors retried him and on February 13, 2014 the jury found him guilty of perjury. Ortiz was also sentenced to probation and community service.
Local NBC affiliate WBALTV-11 reported that former Baltimore Police Officer Adam Lewellen pled guilty on March 27, 2014 to perjury and obstruction of justice related charges stemming from two separate incidents in 2012. Initially, prosecutors charged Officer Lewellen with lying in an affidavit to support a narcotics search warrant, which resulted in the seizure of two firearms, suspected cocaine residue, and a digital scale. In the affidavit to support the search warrant, Officer Lewellen allegedly lied about a controlled narcotics purchase which he used to convince the judge to approve the search warrant. The alleged controlled narcotics purchase never happened. Prosecutors ultimately dismissed the charges from the search warrant and then charged Officer Lewellen with perjury. Then while awaiting trial on the perjury charges, Officer Lewellen again allegedly lied to a judge to obtain a court order to gain access to his ex-girlfriend’s apartment after he was barred from the apartment due to a domestic dispute. The ex-girlfriend testified that Lewellen then used this court order as an opportunity to steal her possessions. The ex-girlfriend also alleged that Lewellen had previously confessed to her that he planted evidence on multiple occasions. After Lewellen’s guilty plea, the judge sentenced him to a 3 year suspended sentence, 6 months of house arrest, and 300 hours of community service. As a part of the plea agreement, Lewellen was required to resign his position as a police officer.
Clearly these examples are not indicative of the behavior of most law enforcement officers. Most law enforcement officers by and large, based on my almost six years’ experience as a federal prosecutor, are trustworthy, honest, and honorable people who perform a tough job day in and day out. Every profession has bad apples, including lawyers. Sometimes, inconsistencies in testimony are simply honest mistakes, not perjury, as evidenced by Officer Benjamin Christoval’s acquittal in New Orleans on April 10, 2014. A judge found Officer Chistoval not guilty of perjury and described the evidence against him as “woefully inadequate.” The judge called the NOPD officer’s prosecution unwarranted. As with this case in New Orleans, sometimes the government just plain over-reaches in charging perjury.
Any law enforcement officer who takes the witness stand in a grand jury, preliminary hearing, or trial should always be mindful that false statements under oath are a serious offense. Given that police officers make hundreds of arrests and often do not testify about a particular case until months or even years later, they should take special care to make sure they are familiar with the facts and their role in the arrest before they testify. Any law enforcement officer who is accused of perjury or obstruction of justice should consider retaining a competent and experienced white collar criminal defense attorney, who understands the nature of their work and the stresses and pressures they face, in the line of duty.