Lying Cop

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. 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.

The case involved a rarely used arm of the criminal trespass statute that I was familiar with only because of the time that I spent as a prosecutor in the piney woods of East Texas. Lumber companies typically use purple paint markings on trees in a way that’s described by that statute to mark their territory and let other players in the lumber industry know that a piece of land (and especially the valuable stand of pines on it) is off limits. But such markings have no real relevance in an urban area.

Nonetheless, 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. [Note: The Google Maps link above has been updated to display images as they appeared at the time this post was published. Use the control box in the upper left corner to set the image date.]

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.

The photos below were taken with a pair of BlackBerry cell phones on February 9, 2009 around 5pm.

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Bad Cop Insurance

Austin police officers have started taking out insurance policies that pay out when they’re suspended, demoted, or fired. The insurance doesn’t appear to require that the punishment be unjustified, of course. Read more here.


I wouldn’t begrudge the officers’ efforts to protect themselves except that I’m pretty sure there’s no insurance coverage available to cover missed or lost employment due to wrongful arrest.

Blaming the Victim

I am baffled by the people in the peanut gallery who blame rape victim Michele Mallin for the failure of the criminal justice system that allowed the wrongful conviction of Timothy Cole. Tragically, Mr. Cole died in prison before he could be exonerated. But it is undisputed that Ms. Mallin was, in fact, raped. The suggestion that she would have knowingly participated in a scheme to arrest and convict someone other than her rapist defies credibility. What’s more, I have no doubt that these same people would have been clamoring for Mr. Cole’s blood if it had been his trial taking place this week rather than his posthumous exoneration.

This paradox is related to the stubborn ignorance that I see when people ask me “How can you represent criminals?” only to have their eyes glaze over if I actually attempt to explain the fact that our constitutional rights and rules of criminal procedure must be exercised in order to prevent the police from getting away with sloppy investigation, suggestive lineup procedures (the real culprits in this case) and worse.

Judge Charlie Baird seems to care about the injustice that can occur when the rules aren’t followed and apply the law accordingly. One can hope that his decision to allow this matter to proceed in his court–and the resulting media circus–will lead to a few more people understanding why that is so important.

4/7/09 Update. Judge Baird issued formal findings in the exhoneration case. Here’s the order, which “blasted the work of the Lubbock police and called on the Legislature to pass criminal justice system reforms” according to this Statesman article.

“I Want A Lawyer” Actually Means Something

To paraphrase Jon Stewart, if you apply your principles only when it’s convenient, then they’re not really your principles–they’re more like hobbies.  Allowing the police to ignore the law has the added danger of eroding our civil liberties and making us vulnerable to abuses of power.

Texas courts sometimes find it very, very inconvenient to apply certain constitutional principles requiring them to throw out evidence when the police break the law to obtain it.  That’s especially true if the evidence is, say, the confession of a killer. So I was actually a little surprised earlier this week when the Texas Court of Criminal Appeals agreed with a trial court’s decision to throw out a suspected killer’s videotaped confession because it was obtained in violation of his right to counsel (Texas v. Milton Wayne Gobert).

The law says that the police have to stop questioning a suspect when he asks for a lawyer. To keep the police from ignoring the law, the exclusionary rule requires courts to throw out illegally obtained evidence. Thus, when the police obtain a confession by continuing to interrogate a suspect after he’s invoked his right to counsel, the confession is inadmissible.

Comments to the Statesman’s coverage of the decision show that some folks want the confession to come in despite the fact that the police broke the law to obtain it. But making an exception just because we think a person is guilty and are offended by the crime he’s accused of would set a dangerous precedent. Next stop on this slippery slope is a place where a coerced “confession” is perfectly acceptable and more innocent people are going to prison.

I’m guessing this decision was as painful to make as it was correct. Kudos to Judge Bob Perkins for making the right decision in the first place, and to the Court of Criminal Appeals for upholding it.

1/29/10 Revision.
Changed category from “Cases of Note” to “Case Law.”