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Sunday, August 26, 2007

When Cops Are Bad

"Departure From The Truth" now that is some spin...How many cases in ten years? How many people may be sitting in jail or prison? How many lives may have been destroyed?

Denver allowed at least 25 of its police officers to remain on the force in the past decade despite "departing from the truth," prompting concerns for prosecutors, defense attorneys and city officials striving to ensure the integrity of criminal court cases.

On any given day, one of those officers could be testifying in a criminal case, and neither prosecutors, defense lawyers nor jurors would ever know that these officers have earned a reputation for dishonesty in their own department.

An eight-month, behind-the-scenes struggle remains unresolved over whether Denver District Attorney Mitch Morrissey's office is legally required to provide information about those officers to defense lawyers. Morrissey's own office says it doesn't have a list of the officers, even though top prosecutors in his office told the city in February that they believed Morrissey should receive the information.

Defense lawyers in Denver say they have struggled for years to get easy access to the internal-affairs files of those officers to challenge their testimony in criminal court cases.

"If a police officer has a history of being dishonest or lying under oath, I don't recall ever receiving that up front in discovery," said Michael Vallejos, the head of the Denver trial office of the Colorado Public Defender's Office.

Other police departments view departing-from-truth cases as among the most serious offenses for an officer and grounds for automatic firing because a sustained violation could be used to challenge the credibility of their criminal court testimony.

1963 case led to debate

Further, Denver differs from other jurisdictions in other respects.

In Arapahoe County, District Attorney Carol Chambers has a committee that continually reviews officer conduct and determines when defense lawyers should be alerted of discipline that could be favorable to the defense.

In Los Angeles, where police scandals prompted reforms, the district attorney's office maintains a database of such violations that prosecutors must check before a criminal case goes to trial. When a relevant violation is found on the database involving an officer in the case, the prosecutor there is required to alert a defense lawyer.

Although those responsible for the sustained cases make up a fraction of Denver's 1,400-officer force, such departure- from-truth cases are generating serious discussion because of a 1963 court case, Brady vs. Maryland. In that case, the U.S. Supreme Court held that prosecutors are required to divulge evidence favorable to a defendant.

In Denver, the issue surfaced last year, when internal-affairs investigators determined that police Officer John Diaz failed to tell the truth during an investigation into whether he failed to show up to testify in a criminal trial.

Diaz received a 4½-month suspension without pay for the violation, but the case had other ramifications.

Richard Rosenthal, the city's independent monitor who oversees the city's handling of police internal-affairs files, alluded to the case in his annual report released in March. He stated in the report that the Police Department had returned many officers disciplined for "departing" back to their prior assignments. No system existed to evaluate whether testimony from those officers could be challenged by defendants, Rosenthal said in the report.

An analysis of the Police Department's discipline database shows that from January 1997 through September 2006, the city sustained 42 departing- from-the-truth cases. Of those, the city fired eight officers. About a dozen officers retired or resigned. Another 11 cases were never reviewed, in keeping with the city's long-standing policy of not completing an internal-affairs investigation if an officer resigns while it is ongoing.

The names of the officers involved are not included in the database and remain unknown to prosecutors, defense attorneys and the public, but details of some cases can be pieced together from other publicly available documents and interviews.

One officer, John Albo, kept his job after internal-affairs investigations twice determined he had departed from the truth - once for failing to be truthful when confronted about why he gave chase in his squad car without emergency lights or his siren. Albo retired with full benefits in 2005 after an internal- affairs investigation was launched to determine whether he had "departed" a third time.

A fight for the defense

Doug Wilson, the Colorado public defender, said that under the current system, a defense lawyer must file a subpoena with the Police Department to view internal-affairs discipline records.

Usually that results in a costly fight with the city attorney's office, which strives to quash the effort, Wilson said. A judge usually ends up reviewing the officer's records and decides which material could be relevant for the defense. Often, the judge bars the defense counsel from sharing the discipline records with other lawyers if the records are deemed relevant.

"We have to reinvent the wheel every time," Wilson said.

And, at times, Denver judges have weighed in on officers' side.

Denver District Judge Raymond Satter testified in 2002 on behalf of one officer in the policeman's civil-service appeal to get his job back. The city eventually succeeded in firing the officer, Paul Hoskins, who had staged a hit-and-run accident to cover up a drunken-driving wreck with a parked car, but not without a fight.

Satter, then presiding judge of the criminal court, testified that he doubted that the violation by Hoskins, nor an earlier violation in which the officer poured sugar in the gas tank of the car of his ex-girlfriend's new boyfriend, would prevent the officer from being effective in court.

Satter testified that he doubted the incidents would ever come up if the officer were called to testify during a criminal trial. "I think police officers are human beings, like all of us, and make mistakes. Some make bigger mistakes than others. Some make littler mistakes than others," he testified. "It does not prevent them from being effective police officers."

Still, after Rosenthal's annual report in March, the city's safety manger, Al LaCabe, who oversees the Police Department, and Police Chief Gerry Whitman agreed to let Rosenthal weigh in on duty assignments of officers when investigations determine they departed from the truth. Whitman would continue to have the final say on where an officer would work.

The agreement, though, did nothing about the past cases involving police who remain on the force despite past sustained complaints of untruthfulness.

"It's not my job to correct historical mistakes," Rosenthal said. "If I were to take on that job, I wouldn't be able to do my current job effectively."

(Why isn't the information as easy as getting anyone's record? Especially when they are public servants.)

Police-union objections

Now, negotiations continue over whether the internal-affairs files should be forwarded to Morrissey's office, which then would be charged with releasing them to defense lawyers.

Morrissey referred questions to his assistant, Chuck Lepley.

Lepley said that after Rosenthal raised the question, discussions were held in January.

"We asked, and the city agreed, that there should not be a piecemeal sending of parts of an officer's personnel file or lists until there was an opportunity to do due diligence to ensure we did not improperly come into such information," Lepley said.

In mid-February, the DA's office asked the city to start providing information about officers found to have departed from the truth.

But months after that decision, no names have been delivered from the city to the DA.

Whitman said he was prepared to send the information to the DA, when lawyers for the police union raised objections, fearing that if officers couldn't testify in criminal cases, the city would fire them. He said he asked for an opinion from the city attorney's office but never got an answer.

"At this time, no cases have come to us," Lepley said in the statement. "It is my understanding that the city continues to work on determining the manner in which this will occur."

Acting City Attorney Arlene "Sam" Dykstra said that she didn't know why the city had provided no information to the DA's office but that even if the city had settled on a policy, she would consider it confidential and would decline to release it.

The Denver Post