Wednesday, March 16, 2011

Police prevarication in Austin overlooked with wink and a nod

I ran across a story from a couple of years ago on a local Austin attorney's blog about alleged police testilying which, before the advent of attorney blogs, would undoubtedly have been silently ignored. Don't get me wrong, it was still officially ignored, by the police department, prosecutors, the judge, etc.. But Austin attorney Kiele Linthrop Pace at least did not remain silent, recording the story of an Austin police officer who seemingly, rather blatantly fabricated facts in a probable-cause affidavit.

"It's been a long time since I learned that police officers not only have incentive to lie but that many of them do it all the time," her blog post opens. "As explained long ago by a federal appeals court judge, who was recently quoted in a Wall Street Journal article, 'It is an open secret long shared by prosecutors, defense lawyers and judges that perjury is widespread among law enforcement officers.' But I was still taken aback by the blatant lying that I encountered last week." She relates that:
the probable cause affidavit that Officer Gerardo Cantu, APD#6111, swore to and filed in this case indicated that he arrested my client for trespassing on a "heavily forested" property at 8212 Sam Rayburn Drive, which contained trees "painted with a purple band" as well as posted "No Trespassing" signs that were "in plain view" on all sides of the property.

As you can see from the street view provided by Google Maps, this is not a heavily forested property. When I drove out there last week, I discovered that it is, in fact, a multi-unit property in a densely populated urban slum. There's a single tree with no purple paint in sight. The only signs posted anywhere on the property do not say "No Trespassing." Rather, they prohibit drinking and loud music in public areas, roaming around, soliciting, loitering, and so forth.

In fact, no element of Officer Cantu's criminal trespass allegation against my client turned out to be true. He just made the whole thing up. The really surprising thing is that he's willing to commit aggravated perjury when it's so easy to prove.

As for the case against my client, I printed out the whole stack of photos that I took at the scene, which included a shot with the address shown on the side of the building, and showed them to the prosecutor at our scheduled pretrial conference last week. She decided that it was in the "interest of justice" to dismiss.  Imagine that.
I emailed to ask the Austin PD what happened to the officer in question as a result of this incident, and received a reply from Assistant Chief Patti Robinson declaring, "The case that you mention was reviewed by the Austin Police Department's Special Investigations Unit. It was concluded that there was no merit to this allegation and therefore no violation of law by Officer Cantu."

Really? "No merit"? So it really was a heavily forested area? There really were "No Trespassing" signs despite photos to the contrary? And the purple bands on trees, they were there, too? Honestly? You're just going to piss on my shoes and tell me it's raining? Given so many details in the officer's sworn statement were not just wrong but in fact the precise opposite of the facts on the ground, either Officer Cantu was "lying," as the attorney suggests, or he is one of the most incompetent observers in history who ever put pen to paper to describe what they saw. "No merit," indeed!

I said as much in a followup email, declaring that, "Unless your Special Investigations Unit found he wrote down the address wrong and there's a nearby forested area with purple bands on trees, etc., this looks an awful lot like a case of abuse of authority and testilying that got overlooked/covered up." Chief Art Acevedo replied personally, a bit peeved: "You are taking the word of the Defense Attorney at face value. If you or the attorney feel a crime was committed by the officer, I recommend you file a sworn affidavit and complaint." I responded, "No, I'm reading the probable cause affidavit and looking at the photos, not taking a Defense Attorney's word 'at face value.' Look at the links for yourself." to which he finally replied, "We investigated and consider the matter close." (sic)

I forwarded the exchange to the attorney in question, who responded: "I'm curious what they mean when they say they reviewed the case. They certainly didn't have any contact with me and I doubt the prosecutor who dismissed the case brought it to their attention. I can't say I'm surprised that they blew it off but they could have at least put some effort into coming up with a smarter reason. They really don't care that you can prove that they're lying, do they?"

Bully for Linthrop Pace for doing the legwork to expose the cop's incongruous statements and springing her client from trumped up charges. This story reminds me of Jeff Blackburn's comments recently in the inaugural Grits for Breakfast podcast, that "criminal defense lawyers who get paid for a living ... understand after awhile that you investigate cases, and a lot of cases go away once you do investigate them." Linthrop Pace's story is a great example of exactly that. I wish I could also say it's a great example of prevaricating cops being held accountable by their department, prosecutors, or the courts, but they all seemed to have let the matter pass with a wink and a nod.


Anonymous said...

Yep. If the cops or the ADA just did a little investigation of their own, then there would be a whole lot less arrests and people locked up for pleading to a made up case. But that's not the end game, so it won't happen. Don’t forget that these people were bullied into a plea by a court appointed tick. As many pro bono cases as I have done, I take pride in saying I have never once accepted a court appointed criminal case. I would rather do it for free than be clumped together with a large category of worthless losers than give less than a rat's butt about their client and his liberty. Ugh! Good and decent cops, ADA's, judges and defense attys are overwhelmed by the majority of narrow minded, vindictive, lazy, apathetic a-holes than permeate the criminal justice system.

Anonymous said...

"that" permeate...too early, not enough coffee ;)

Anonymous said...

The few DA's with stones to investigate and indict lying cops are few and far between. The ones that do the right and just thing are shunned and attacked for daring to call the cops on their BS. Disgusting! My morning rant has now ended...back to work.

Anonymous said...

When the police or DA will not investigate, notification by registered letter from a complainant to the grand jury foreman is sufficent for investigation by the grand jury.

Texas CCP Art. 20.09. DUTIES OF GRAND JURY. The grand jury shall inquire into all offenses liable to indictment of which any member may have knowledge, OR OF WHICH THEY SHALL BE INFORMED by the attorney representing the State, OR ANY OTHER CREDIBLE PERSON.

I would say you are credible Grits!

Don Dickson said...

Grits, this may not be as clear-cut as it appears. If you go to Google Maps and 360 around you'll find trees with bands on them, including at least one purple one.

I wouldn't call that a "heavily forested area," and the address given may have been imprecise, but it's possible that the officer did not engage in aggravated perjury.

Anonymous said...

I went to Google Maps and did a 360 view and don't see one tree with a purple band. A wink and a nod is a great description of our justice system works. If this wasn't the case we wouldn't see so being let go because they were wrongfully convicted. It's a damn shame! Hoping they will get to my husbands case soon. They don't realize the impact they have on the families of all involved and the life of the "convicted" once he comes home. It's so easy to throw the book at someone than to actually DO YOUR JOBS! Bullied into a plee is exactly what happens. PATHETIC and I spit on you!

Don Dickson said...

Look again. I didn't see it at first, but there's clearly at least one tree there with a very unmistakable purple band around it. Some people I've shared this with also say that they found several signs which could be the no-trespassing signs, although the only one I noted looked like it might be a don't-park-here-if-you-don't-live-here-or-you-will-be-towed sign. But the purple-banded tree, no question it is there.

Anonymous said...

Well, I certainly can’t tell from Google Streetview what the signs say, but east of the location that you posted, I found two trees with some kind of paint (looks white to me) and the across the street from them I clearly see a tree with purple paint. Also looks like numerous signs through out the complexes that could be “No Trespass” signs and some with tow trucks hooked to another vehicle. Clearly not an isolated, wooded area, but there are trees throughout the neighborhood. So, was the officer fabricating (as you are ready to allege) or was it a mistake of address and description. Seems just as likely the alleged trespass occurred on the opposite side of the road. Upon further review, I can make out a “No Trespass” sign to the south of the tree with the purple paint. So, there does appear to be a mistake of location. As to the number of trees, there are trees, and none of us where there at the time of the alleged offense to observe what the officer observed and he wasn’t called upon to testify. Seems like a good defense attorney would be able to easily beat any perjury charge against the officer, simply by doing some investigating of what is on the other side of the street.

Anonymous said...


When you say the trees have bands, do you mean like rings around the tree?

Am I nitpicki'n when I say the statute clearly states the purple paint markings must be Vertical Lines of not less than eight inches in length and not less than one inch in width;

placed so that the bottom of the mark is not less than three feet from the ground or more than five feet from the ground; and

placed at locations that are readily visible to any person approaching the property and no more than 100 feet apart on forest land; or 1,000 feet apart on land other than forest land?

Anonymous said...

One other thing, "Forest land" means land on which the trees are potentially valuable for timber products.

Anonymous said...

Make sure ya know the photo dates of google view and also look at the area in the vicinity of 8212 Sam Rayburn in person. I'd prefer to read the complete Offense Report instead of the sparse PC affidavit. Come on - as Mark Twain said "you can find in a text whatever you bring to it...."

Anonymous said...

You should take a look across the street. Clearly a "No Trespass" sign at,+Austin+TX&ie=UTF8&split=0&gl=us&layer=c&cbll=30.347589,-97.699266&panoid=BZI6K3a8948Kkmeallpvaw&cbp=12,102.59,,1,5&hq=&hnear=8212+Sam+Rayburn+Dr,+Austin,+Travis,+Texas+78753&ll=30.34751,-97.703412&spn=0.013221,0.027466&z=16
and a purple stripped tree at,+Austin+TX&ie=UTF8&split=0&gl=us&layer=c&cbll=30.347589,-97.699266&panoid=BZI6K3a8948Kkmeallpvaw&cbp=12,102.59,,1,5&hq=&hnear=8212+Sam+Rayburn+Dr,+Austin,+Travis,+Texas+78753&ll=30.34751,-97.703412&spn=0.013221,0.027466&z=16

Bill said...

Here's the purple-banded tree, btw:

There's only the one that I can find, and while a band that goes all the way around is certainly more than an inch wide, it's not really a vertical line, as a *vertical* line connotes something that is longer in the up-and-down direction than it is side-to-side. :)

Bill said...

Also, that blur of red and black pixels could either say "No Trespassing" or "No Parking". That sign, btw, is way at the back of the lot, so it's not clear to me that it marks the boundary of the no trespass zone in a manner congruent with the law (IANAL).

Finally, it doesn't matter what's in the Google Maps photos 2ish years after the incident, obviously. If Pace's photos of the same tree and lot don't show the purple band or any no trespassing signs, then that's what should control argument.

Any chance we could get her to scan and post the photos somewhere? :)

Anonymous said...

Found another purple stripped tree around the corner from the first one in the 400 block John Nance Garner Circle. Again, seems more of a mistake of location than a perjuring officer.

Anonymous said...

Bill, I agree that we don't know whether the purple stripped trees were present in 2009, but she is the one directing everyone to street view by Google Maps. I see that the street view as a 2010 date stamp, not that it helps. In the end, the prosecutor made a decision to not prosecute the case of criminal trespass and she is the one that choose to post about the officer in what appears to be an error on her part.

Anonymous said...

Heck, I've found a third tree with a painted purple stripe and what appears to be more signage. I know, it might not have been there in 2009, but everything is on the opposite side of the street from the address given. Mistake yes, perjury no.

frombehindthepinecurtain said...

A former ADA in Smith County admitted to me, "You know they [those in the DA's office] don't read their files." This is sadly the realty.

Anonymous said...

This blog post is another example of the yellow journalism that has made its presence into our internet media. A defense attorney's ranting blog turns into another blogger trying to make a criminal case for an officer that was trying to assist the property owners enforce their rights. The property owners must have a constant problem with trespassers if they have had to call officers and issue a blanket criminal trespass warning.

What a waste of time, electricity and cerebral matter for this blog. Try being a bit greener and write something with some substance and not this petty, obvious sensationalized non-story.

With the 82nd Legislature in session there is plenty of real issues to blog about. Do something constructive and green for St. Patrick's Day and stay away from the yellow journalism.

Anonymous said...

Charles from Tulia says:

I have long known that it is legally permissible for an interrogator to lie to a suspect while trying to get a confession. I say legally permissible. I do not say morally permissible. The ninth commandment, to my knowledge, makes no exceptions for police officers, interrogators, prosecutors, or judges. The practice is moral perjury even though it is legally permissible.

In general, I am opposed, on first amendment grounds, to these ten commandment monuments being posted on courthouse squares. But the ninth commandment should be prominently posted in the courtroom, in an area where those in the witness chair, the attorneys for both the state and teh defence, and the judge cannot miss it.

To those wanting Scott to do something green for St. Pat's day, I say, you do something green. Go plant a bunch of trees in that supposedly heavily forested area!

If the police officer in question really made an honest, mistaken address, mistake, the PD should have said so.

I fear the whole thing is a case of prevarication creep, moving from permissible lying at interrogation to wink and nod overlooking of perjury and finally to legally sanctioned lying in order to make a case.

But let's roll back the lying, and withdraw the practice of sanctioned lying by interrogators seeking a confession.

Enough is too much!

Anonymous said...

As long as Americans are so keen to lock up their fellow citizens and so keen to call the police "heroes," whether they are or not, this will continue.

Abuse will only end when the American people care about their fellow citizens and hold those in authority responsible for injustices done against them.

Anonymous said...

As stated by Assistant Chief Patti Robinson declaring, "The case that you mention was reviewed by the Austin Police Department's Special Investigations Unit. It was concluded that there was no merit to this allegation and therefore no violation of law by Officer Cantu."
The Chief considers the matter closed. If the officer violated the law, someone (Pace or her client) should swear to a complaint, otherwise it is simple bloviating.

Gritsforbreakfast said...

A few responses:

First, nobody in their right mind would describe this as a heavily forested area. Just absurd.

Second, even accepting one tree with purple paint is nearby , a) it's not on the property in question and b) doesn't meet the qualifications of the statute, which require multiple purple rings segmenting timber designated for cutting. Both the tree with the purple paint and the sign across the street AREN'T ON THE PROPERTY WHERE THE ARREST WAS MADE. They're irrelevant to the verity of the PC affidavit, which was very specific (and completely wrong).

Finally, applying this statute in an urban, non-wooded area is an absurdity. Looking for penny ante stuff to justify it when the totality of the facts are so obviously bogus that the prosecutor dismissed the case seems just a tad delusional. I know the circle-the-wagons response is sort of reflexive, but it's not always probative nor productive.

This was a BS bust where the officer apparently looked at the penal code after the fact and filled out the affidavit to meet the criteria of a crime instead of describing the facts honestly then seeking to determine if a crime had been committed. Which is why the case was dismissed.

Anonymous said...

Sir, with all due respect, it appears that you are also “circling the wagons”. It is libelous of her to call him a liar. You are assuming that the officer looked it up in the penal code after the fact. You are assuming that the arrest was made across the street where there does not appear to be any purple paint or signs. None of us posting on this matter today really know what specific spot in that neighborhood the offense and arrest took place. But in cruising the neighborhood on Street View, the property across the street has at least three trees around the property with the purple paint, as well as what appears to be posted signs.

If you would take the time to look at 30.05 of the Texas Penal Code, “Notice” includes several means, such as oral or written communication by the owner; fencing; a sign or signs posted on the property; the placement of the now famous purple strips on the trees; or the cultivation of crop grown for human consumption.
Specifically in reference to the purple stripes on the trees: they have to be on trees or posts on the property, provided the marks are vertical lines of not less than 8” and not less than 1” in width; placed between 3’ and 5’ from the ground; readily visible to any person approaching; AND not the all important distance: 100’ apart on forest land; OR 1,000’ apart on LAND OTHER THAN FOREST LAND. It is absurd for you not bloviate about that the officer was lying. As to applying this statue to an urban area, it is absurd to think that Criminal Trespass does not apply in an urban area. It is shameful that you and she are limiting the definition of Notice to only apply in forest land.

I’ll go back to the fact that I can see at least three trees with said purple painted stripes and what appear to be signs. So, as to the posting of No Trespass, the Notice was provided. So the question is, did the arrest occur across the street or on the posted property? I don’t know, you don’t know, hell Pace doesn’t know. We do have to rely upon the PC Affidavit, which places the arrest 8212 Sam Rayburn Dr, instead of say 8211 Sam Rayburn Dr. The case got dismissed because Pace did her job and identified an apparent mistake as to the location of the alleged offense and the prosecutor didn’t bother to bring this discrepancy up with the officer for clarification.

It is not productive to call the officer a “Liar” when it appears he made a mistake as to the address on the offense. It’s BS and shameful on yours and Pace’s part to jump to that conclusion. I say congratulations to Pace and her client for catching the discrepancy in the location of the arrest and the location provided on the PC Affidavit, but it doesn’t make the officer a liar.

ckikerintulia said...

Charles in Tulia:

reply to 1:02 PM

If it was simply a mistake of wrong address, why didn't the PD say so instead of just saying "case closed"?

PS: There could possibly be more than one bloviator on the blog.

Anonymous said...

It was the Co Atty that dismissed the charges. It's not as if this was the crime of the year. Prosecutors have the authority to dismiss an charge without the arresting officer or the agency they work for having anything to say about it.

But I guess we should take the easy out and simple call the officer a liar. I bet this collar made his career, bet he made is quota of criminal trespass collars and won a trip to Hawaii. Austin should demand he repay the city for the cost of that free trip he won when he made this particular arrest.

In Travis County, they have so many cases in County Court that I'm sure the Assistant Co. Atty. on this case simple decided this was not a case worth taking to a jury. And if in the end, the defendant did not return to the property in question, where he/she apparently had been provided notice that they didn't belong there, then voluntary compliance was gained and it was a win for both the property owner (complaining party) and the defendant.

Just why would Officer Cantu completely fabricate a case against the defendant? Who called the officer to the property in the first place?

Gritsforbreakfast said...

@4:29 - According to the PC affidavit, the property owner at the stated address called him, which is partly why I find it unconvincing when you point to signs across the street, etc..

Besides, this post left open the possibility that Cantu wasn't lying. I wrote that "either Officer Cantu was lying, as the attorney suggests, or he is one of the most incompetent observers in history who ever put pen to paper to describe what they saw."

If he can't tell what street address he's at, if he mistakes parking lots and multi-family dwellings for a "heavily forested area," etc., he may just be incompetent, as you would have us believe, and may not have fabricated anything. That's a perfectly reasonable explanation, but either way it doesn't inspire much confidence in his abilities.