Alleged police perjury here and yon: Brian Encina on the dock while Dallas cop on year-long paid vacation

Former state trooper Brian Encina's not guilty plea this week in the aftermath of the Sandra Bland tragedy generated many headlines. But a story out of Dallas by the inestimable Tanya Eiserer at WFAA deserves scrutiny, too, as it's closer to the (unwritten) rule whereas the attention focused on the Bland case has been a remarkable and unexpected exception.

An internal affairs investigation found that DPD Sgt. Stephen Baker gave "false testimony" on the stand in a DWI case in February 2015, but perjury charges were never filed. A judge declared his testimony wasn't credible and ordered a directed verdict of "not guilty." The prosecutor in the case wrote in a memo that Baker was so “focused on not backing down he basically perjured himself on the stand.” Since then, "Baker has been on administrative leave since March 2015, collecting his $83,000 annual salary." That's some punishment!

Eiserer reported that "Shortly after making the ... arrest, Baker was put into a special monitoring program for troubled officers. Despite that troubled disciplinary history, Baker was promoted to sergeant several years ago. That boost in rank was given even though an interview board had unanimously recommended that Baker not be promoted, based on his disciplinary history and work history."

Encina's behavior received international scrutiny, while Baker's flew under the radar. But what happened to Baker is a more typical outcome when perjury allegations arise against police officers: The behavior is too often excused and overlooked by their peers and supervisors, in this case giving him a year's worth of paid vacation when he should have been fired soon after he got off the witness stand. Once prosecutors begin opining to one another that an officer "basically perjured himself," he won't be of much use in proving criminal cases against future defendants going forward.

Trooper who threatened to 'light up' Sandra Bland indicted for perjury

How interesting and impressive that state trooper Brian Encina from the Sandra Bland episode was indicted for perjury yesterday and then promptly fired by the TX Department of Public Safety. Reported the NY Times:

The charge against Brian T. Encinia is a Class A misdemeanor and was announced Wednesday at the end of a day of grand jury deliberations. The charge carries a possible penalty of one year in jail and a $4,000 fine, prosecutors said.

The charge stemmed from a one-page affidavit that Encinia filed with jail officials justifying Bland’s arrest. She was pulled over in a routine traffic stop in Prairie View, northwest of Houston, for failing to use her turn signal. Bland, 28, who was black, was returning to Texas in July to take a job at her alma mater, Prairie View A&M University.

Encinia wrote that he removed Bland from her car to conduct a safe traffic investigation, but “the grand jury found that statement to be false,” a special prosecutor, Shawn McDonald, said.

A police dashboard camera video of the episode shows an escalating confrontation after Bland refuses Encinia’s request to put out a cigarette. At one point, Encinia says he will forcibly remove her from her car and threatens Bland with a Taser, saying, “I will light you up.”

I bet you could do a word search in affidavits by DPS troopers on the phrase "safe traffic investigation," go look at the videos from those stops, and discover that that phrase covers all sorts of situations where troopers crossed the line or punished drivers for "contempt of cop." In the past, a law enforcement official fudging facts or using weasel words in affidavits would never be second guessed, not even by a judge or a supervisor, much less a grand jury. I'm sure Encina never thought in a million years he'd be nailed for such a statement. Sure, it's false. But until now, it's been extremely rare for cops to be indicted on perjury charges, even if their accounts strayed much farther from reality than that.

Grits wonders: Will this be a one-off because of all the publicity around the case, similar to former DPS "Outstanding Lawman of the Year" Tom Coleman's perjury conviction in the Tulia cases? Or will this set a precedent so that other cops in the future might be called to account for perjuring themselves in official documents? I think of the way Ken Anderson's disbarment and brief incarceration over the Michael Morton case has left the state bar (barely) more open to disciplining prosecutors for withholding exculpatory evidence. Will other troopers and cops using the same fig leaf to cover up misconduct similarly be held to account?  For the most part, the answer is clearly "no." But perhaps we'll see more such cases if other jurisdictions follow this grand jury's example.

Widespread police testilying alleged: Tarrant DA responds by eliminating method of documenting it

When a prosecutor hears a police officer lie on the stand, should there be a process by which they document it, or should they just keep using that cop over and over as a witness in the future?

That's the core issue raised with the recent release of prosecutor assessments of alleged police officer testilying in Tarrant County DWI cases. In a story titled "Officers accused of lying, "winging it" by Tarrant County prosecutors, documents show" (6/20):

[Tarrant County District Attorney Sharon] Wilson said that though she could not confirm the allegations, she believed that handwritten notes on 19 of the forms potentially rose to the level of being Brady material — information that under the law must be turned over to the defense. Accordingly, her office as sent out some 4,000 Brady notices to defense attorneys who had cases in which the officer was in any way involved.

The 16 officers and three Breathalyzer operators whose credibility was questioned in the forms were unfairly maligned, were never given a chance to defend themselves and their agencies were never alerted, according to both a police union leader and an attorney for two of the officers. ...

Two Fort Worth officers and a former civilian breath test operator with the department were among those accused of lying, many times in testimony, during misdemeanor trials dating to 1993.

Nine other law enforcement agencies also received notice from the DA’s office that a former or current employee’s credibility had been questioned by prosecutors, including an Arlington sergeant who now serves in a high-ranking position.

Rather than formalize the assessment process, though, or assigning a supervisor to monitor content, the DA will simply cease having prosecutors fill out the forms. Seems like the wrong message.

The misdemeanor chief who authorized the memos, Richard Alpert, who is an appointee to the statewide Texas Forensic Science Commission, was demoted over the episode - for either not monitoring the contents of the memos (the stated reason) or for recording such opinions in the first place (a reasonable subtext) - and no longer manages other employees.

Grits continues to believe that access to documents about law enforcement misconduct for impeachment purposes will be the next big hurdle to full implementation of the Michael Morton Act and open-file discovery in Texas. Usually when I've said that I'm talking about police department disciplinary files, particularly in civil service cities. But this event reminds us that front-line prosecutors often are privy to testilying when it happens.

Shouldn't there be a requirement that they record it when they see it instead of eliminating the mechanism by which the DA's office discovered the problem? And now that the forms are gone, are prosecutors relieved of an obligation to disclose that knowledge just because they didn't write it down?

Read more here: http://www.star-telegram.com/news/local/community/fort-worth/article25066810.html#storylink=cpy

Read more here: http://www.star-telegram.com/news/local/community/fort-worth/article25066810.html#storylink=cpy ...

Trooper accused of perjury at DWI stop

Reported the Austin Statesman yesterday:

The DWI case against former Williamson County Sheriff’s spokesman John Foster should be dismissed because a trooper lied during pretrial testimony, according to a press release issued today by Eve Alcantar, one of the former spokesman’s attorneys.

Alcantar said she has presented perjury evidence to Williamson County Attorney Dee Hobbs, but Hobbs has not responded to her request to dismiss the case. Hobbs said this morning he was preparing a reply to Alcantar’s press release, which he plans to comment on today.

The case is set for another pretrial hearing Friday in front of a different judge because county court-at-law judge Tim Wright recused himself after a previous pretrial hearing Jan. 17. Wright did not give a reason for the recusal in official court documents.

Department of Public Safety trooper Joseph Stuart committed perjury because he said during the previous pretrial hearing Jan. 17 that he didn’t consult with another trooper before he arrested John Foster on June 29, 2013, Alcantar said in the press release. ...

Foster was placed on paid administrative leave after he was initially arrested but is now on unpaid leave.

Williamson County Attorney Dee Hobbs responded with a statement declaring he was "disappointed by defense counsel’s decision to release evidence related to a pending criminal matter outside the courtroom.” Moreover, “We are also disappointed by defense counsel’s decision to publicly attack a witness to an ongoing criminal matter outside of the courtroom.” Doesn't exactly sound like a denial on the "perjury" allegation.

'Police Misconduct as a Cause of Wrongful Convictions'

The headline of this post is the title of a new paper by Georgia Sate law prof Russell Covey. The abstract reads:

This study gathers data from two mass exonerations resulting from major police scandals, one involving the Rampart division of the L.A.P.D., and the other occurring in Tulia, Texas. To date, these cases have received little systematic attention by wrongful convictions scholars. Study of these cases, however, reveals important differences among subgroups of wrongful convictions. Whereas eyewitness misidentification, faulty forensic evidence, jailhouse informants, and false confessions have been identified as the main contributing factors leading to many wrongful convictions, the Rampart and Tulia exonerees were wrongfully convicted almost exclusively as a result of police perjury. In addition, unlike other exonerated persons, actually innocent individuals charged as a result of police wrongdoing in Rampart or Tulia only rarely contested their guilt at trial. As is the case in the justice system generally, the great majority pleaded guilty. Accordingly, these cases stand in sharp contrast to the conventional wrongful conviction story. Study of these groups of wrongful convictions sheds new light on the mechanisms that lead to the conviction of actually innocent individuals.

Covey focused on the Rampart and Tulia episodes to hone in on causes of wrongful convictions that may not be captured by the sorts of cases that win "actual innocence" claims. He observed that:

The vast majority of the exonerations studied to date occurred in rape cases following DNA testing and murder cases often involving the death penalty. Such cases, comprising a tiny sliver of the criminal justice system workload, are relatively unrepresentative of the vast majority of felony convictions. As a result, and as researchers compiling these datasets acknowledge, the most closely analyzed data on wrongful convictions does not capture a representative sample of the probable distribution of wrongful convictions that occur

That's a good point. Biological evidence only exists to be tested in around 10% of violent crimes and in most older cases was not preserved for testing after the fact. Focusing solely on DNA exonerations disproportionately emphasizes rape and capital murder cases where evidence is most likely to a) exist and b) be preserved, but that's not typical for the vast majority of criminal convictions. And anyway, he argued, false convictions likely occur in different types of cases for different reasons:

as one of the nation’s leading experts on exonerations, Professor Samuel Gross, has frequently emphasized, the primary causes of wrongful convictions are almost certainly crime-specific. That is, the factors that tend to cause wrongful convictions in rape cases are different from those that cause wrongful convictions in murder cases, and different from the causes of wrongful convictions in burglary cases, assault cases, and drug cases. The next generation of research must approach wrongful convictions in a more fine-grained manner.

In particular, argued Covey, "wrongful convictions in the mass exoneration cases are tied together by a single dominant causal factor: police misconduct," fact that distinguishes them from DNA exonerations, the majority of which involved faulty eyewitness identification:

While the leading identified cause of wrongful convictions in past studies of exonerations is witness misidentification, a very different dynamic is at work in the police misconduct cases. Police misconduct generally, and perjury in particular, was the primary cause of wrongful convictions in every Rampart and Tulia case resulting in exonerations. Witness misidentifications played virtually no role in any of the cases.

Bottom line: "the primary 'cause' of false convictions in the Rampart and Tulia scandals was police perjury, some form of which was present in 100% of the cases. ... After police perjury, the most common 'causes' of false convictions were the false confessions generated through police misconduct."

Another notable distinction was "the tendency of exonerees in these cases to plead guilty rather than go to trial confirms what many have long suspected: that the problem of wrongful convictions is not limited to the small number of cases in which innocent defendants unsuccessfully contest their guilt in a jury trial." Wrote Covey, "If there ever was any real doubt that false guilty pleas can occur in large numbers, the Rampart and Tulia data put those doubts to rest, indicating that at least in some types of cases, innocent defendants are far more likely to be convicted through a guilty plea than at trial."

Indeed, Covey found that actual innocence has only a slight effect on whether defendants plea guilty, arguing that it "appears from the data that actual innocence does induce some defendants to refuse a guilty plea and hold out for trial, but that the incentive has only a marginal effect, leading the innocent to contest their cases at trial at an approximately 10% greater rate than those who are actually guilty. Nonetheless, the data underscore that the vast majority of the actually innocent resolve false charges against them by pleading guilty." And when innocent defendants exercised their right to a trial, "those who did and lost paid a heavy price for that decision."

Covey concluded that, "Police misconduct, when it occurs, is a major source of wrongful convictions." The article closed with these observations:

Comparison of the mass exoneration data with prior exoneration studies suggests that two important adjustments to the empirical picture of wrongful convictions may be in order. Although earlier studies of wrongful convictions found only a small number of cases involving guilty pleas, in the mass exoneration cases, guilty pleas provided the main procedural vehicle to criminal conviction. In more than 80% of the combined Rampart and Tulia cases, innocent defendants pleaded guilty. While innocence did seem to provide a marginal incentive to some defendants to reject guilty pleas, actually innocent Rampart exonerees held out for trials only slightly more frequently than their guilty counterparts. The Rampart and Tulia exoneration data thus provides strong reason to suspect that guilty pleas are not insulated from the risk of wrongful convictions.

Consideration of this data should also raise the profile of perjury among the causes of wrongful conviction. Although eyewitness misidentification has received a substantial amount of attention as one of the main identified contributing factors in wrongful convictions, the mass exoneration cases make clear that the “causes” of wrongful convictions vary significantly by crime. These exonerations show that police misconduct is a potentially significant cause of wrongful convictions in its own right. Procedural reforms that reduce the incidence of police misconduct, therefore, should be high on the list of priorities among those working to reduce wrongful convictions.

On celebrity, the NSA, and the hypocrisy of DOJ perjury prosecutions

Not a Texas-specific issue, but this has been bugging me: Can anyone justify why the US Justice Department (unsuccessfully) tried to prosecute "Rocket" Roger Clemens for perjury but somehow James Clapper, the director of national intelligence, not only hasn't been indicted for blatantly lying to Congress about the NSA phone spying program, the Obama Administration and senior US senators are publicly praising him?

At the time, Grits expressed dismay bordering on disgust that the DOJ would waste resources prosecuting athletes like Roger Clemens and Marion Jones over allegedly lying about steroid use while turning a blind eye to far more serious crimes. But that sordid spectacle appears even more embarrassing when compared to what's happening with Mr. Clapper. The basis of the Roger Clemens prosecution was the uncorroborated word of a shady informant and the government couldn't prove the charges in court. Clapper's perjury before Congress was both blatant and (thanks to revelations by Edward Snowden) entirely demonstrable.

The USDOJ's approach to those accused of lying to Congress smacks of shameless hypocrisy. They'll go after a celebrity for alleged perjury over trivia, then the Administration praises this mendacious NSA official for far more blatant, provable lies to Congress regarding much more serious subjects. My prediction is Mr. Clapper won't ever be prosecuted because he's in a position to reveal many more illicit activities about which the executive branch has probably also been lying.

Grits doesn't care if you're a Democrat or Republican, black, white, brown or green. This sort of calculated sophistry has denuded the Obama Administration of any remaining shred of credibility when it comes to defending, or even discussing, the Bill of Rights. And DOJ's failure to consistently pursue perjury prosecutions, declining to act when an Administration official lies but going after celebrities in a high-profile fashion, speaks to a smarmy unctuousness that's incredibly disingenuous. Just sickening.

Appellate court refers habeas writ applicant for perjury prosecution

Last week, Grits pointed to a rare pro-Fourth Amendment ruling by the Texas Court of Criminal Appeals in which the court found that "videotape presents indisputable visual evidence contradicting essential portions of [the officer's sworn] testimony." The court also pointed out a gaping flaw in the state's argument that the officers hadn't committed criminal trespass by remaining in the defendant's home without probable cause after she'd asked them to leave: The Legislature didn't create an exception to the criminal trespass law for police officers until 2009, a year after the incident in question. Some commenters wondered why the judges didn't refer the case for prosecution for perjury or criminal trespass, and I'd replied, "To be fair, ... it's not like the judges on the CCA can initiate prosecutions. They don't have that power."

Well, my intuition on that question was wrong. The Texas District and County Attorney's Association User Forum recently highlighted a case where the CCA referred a perjury charge to prosecutors based on alleged lies by a prisoner in a writ of habeas corpus. Reported the Lubbock Avalanche Journal ("Scurry County inmate accused of lying in appeal application," Dec. 13)

The Texas Court of Criminal Appeals ... rejected Michael Wayne Gaither’s application for a writ of habeas corpus and, noting what trial Judge Ernie Armstrong had identified as perjured statements, sent a copy of the ruling to the appropriate prosecutor with a suggestion to “take such action as he may deem appropriate.”

Judge Cathy Cochran wrote for the court: “The act of filing a perjurious application is an affront not just to this court, but to the criminal justice system generally, as well as to all citizens — especially those inmates with potentially meritorious habeas claims.”

So the CCA can refer cases for prosecution, if they choose, presumably just like anyone else who reports a crime. Not sure I've seen that before.

On its face one might infer a double standard looking at the two episodes. But in this instance, the statute of limitations would have run out on potential perjury or criminal trespass charges against police for events that occurred in 2008. So one can't blame the CCA for not referring those particular charges to prosecutors. Going forward, though, Grits will keep an eye out for other, comparable situations where the statute of limitations hasn't expired to see if what's good for the goose is good for the gander.