Testilying

“The more you hung out with other cops, the more inbred you became, believing that anyone who is not a cop was a son-of-a-bitch.”

—former LAPD Chief Daryl Gates in his autobiography,Chief Police sometimes lie during investigations. That much was evident in the recent, highly questionable robbery prosecution of 17-year-old Arthur Carmona. In fact, as several newspapers have pointed out, cops are taught to say or do just about anything to gain confessions—even going so far as to manufacture incriminating evidence. In Carmona's case, Irvine Police Department detectives tried unsuccessfully to force a confession by threatening additional charges and falsely claiming a videotape of the crime scene proved the boy's guilt. While the U.S. Supreme Court has officially sanctioned such dishonesty, it's fair to ask: When can the public feel confident that its cops aren't lying? For some law-enforcement officers, deceitfulness never ends. In recent years, the Los Angeles Police Department has struggled to overcome revelations that cops secretly paid witnesses for favorable testimony, erased portions of an audiotape that demonstrated a suspect's innocence, and forged signatures on confessions. In Philadelphia, a district attorney reluctantly told reporters in 1989 that juries would be “shocked” to learn “the extent to which police officers lie on the stand to reinforce the prosecution.” Last year, superior-court judges in Boston were so disturbed by widespread flagrant testilying—cops lying under oath—that they established a monitoring system to catch and prosecute crooked officers. While other jurisdictions work to combat testilying, Orange County's criminal-justice officials appear to have tacitly okayed the practice by refusing to prosecute Newport Beach police officer Kristen O'Donnell. O'Donnell was critical to the district attorney's weapons-possession case against Paul Handford, a 31-year-old San Bernardino truck driver. But on May 10, the prosecution ended abruptly when an embarrassed deputy district attorney acknowledged that a police videotape of Handford's arrest revealed “significant inconsistencies” in the testimony of his star witness. Handford faced three years in prison based on O'Donnell's testimony. His public defender, Joe Perez, has asked that O'Donnell be held in contempt of court, a motion the district attorney's office originally appeared to support. “I am convinced, with all due candor, that the officer perjured herself,” Deputy District Attorney Mark Geller told Superior Court Judge James K. Turner on May 10 before seeking a dismissal in the case against Handford. But within days, District Attorney Tony Rackauckas' office flip-flopped, claiming that there was no evidence that O'Donnell had committed perjury. (Newport Beach police officials said O'Donnell was not granting interviews.) Geller “probably rushed in giving his opinion to the court,” a backpedaling Senior Assistant District Attorney Chuck Middleton told reporters after conferring with Newport Beach police. Originally, Middleton had conceded that O'Donnell's testimony “went right to the heart” of the prosecution. The DA's reversal outraged the public defenders' office. “I want people to look at this. It's ridiculous,” Perez told the Weekly. “[O'Donnell's] testimony was absolutely contrary to what really happened.” At the center of the controversy was whether O'Donnell had failed to alert Handford of his rights to an attorney and to remain silent when he was arrested on Christmas Eve 1997 on the beach near the famous surfing spot the Wedge. (Handford's alleged crime was allowing an adult passenger to store a pistol in the trunk of his car.) Suspects locked in the back of patrol cars must be notified of their Miranda rights prior to questioning. O'Donnell, a two-month rookie, effectively argued in court proceedings that the Miranda warning was not neccessary because she had released Handford from the back of her police car before the interrogation. During the illegal questioning, the officer allegedly obtained an admission of guilt. Court transcripts show a precise, even confident O'Donnell. Geller: When you remade contact with the defendant, where did that occur? O'Donnell: I approached the vehicle, had him step out of the vehicle, and then we discussed it near the police unit. Turner:I'm sorry. You had him step out of the vehicle? O'Donnell: Correct. Turner:Okay. Geller:Now, did you open the door or did one of your colleagues open the door? How did the defendant get out of the car? O'Donnell:I opened the door. Geller:And did you then have a conversation with the defendant? O'Donnell:Yes, I did. The next day at the trial, Perez revisited the issue, and the officer insisted again, “I opened the door and had him step out of the car.” Although O'Donnell's testimony had previously sent another suspect in the case to jail for 60 days and was key to the case against Handford, her statements were, to be generous, flawed. The proof was in a police videotape, key evidence that was given to the defense just as Handford's retrial began. According to Perez, the tape conclusively shows that the version O'Donnell described in the first trial was fiction. The interrogation had indeed taken place inside the car before the Miranda warning was issue and thus was illegal. “Videotapes don't lie. [O'Donnell's] testimony obviously wasn't true,” said Perez. O'Donnell's colleagues don't dispute the video directly contradicts the officer's testimony. They claim, however, that O'Donnell had made an innocent mistake. She remains on duty while other Newport Beach officers claim they are investigating the matter. Sergeant Michael McDermott told The Orange County Register, “So far, what we've come up with is not perjury but a lack of recollection.” On May 25, McDermott went even further with the Weekly and said: “There was no perjury; there was no misconduct. And we don't see any other facts coming in.” The DA's and the police's versions now publicly mesh. Prosecutors say they won't persue a perjury case because they don't know O'Donnell's state of mind when she testified. “This case boggles my mind,” said Perez. “Technically, the DA is supposed to be an independent agent able to prosecute police officers. If that barrier breaks down because they work too closely with the police, then we're all in serious trouble.” In a supposedly unrelated matter, Newport Beach Police Chief Bob McDonnell has been lobbying state lawmakers in Sacramento to permit early destruction of videotapes taken from police vehicles. Currently, the law mandates that the tapes be kept for two years; McDonnell claims storing the tapes has become a burden. He wants to burn the tapes as soon as two months after they're made. No doubt O'Donnell wouldn't object.

R. Scott Moxley

CNN-featured investigative reporter R. Scott Moxley has won Journalist of the Year honors at the Los Angeles Press Club; been named Distinguished Journalist of the Year by the LA Society of Professional Journalists; obtained one of the last exclusive prison interviews with Charles Manson disciple Susan Atkins; won inclusion in Jeffrey Toobin’s The Best American Crime Reporting for his coverage of a white supremacist’s senseless murder of a beloved Vietnamese refugee; launched multi-year probes that resulted in the FBI arrests and convictions of the top three ranking members of the Orange County Sheriff’s Department; and gained praise from New York Times Magazine writers for his “herculean job” exposing entrenched Southern California law enforcement corruption.