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Seattle Post Intelligencer - U
29 January 2008

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Seattle Police Department, WA

Cops who lie don't always lose

Lying by police officers is considered a cardinal sin in law enforcement, a so-called "death penalty" offense that collective wisdom holds will automatically result in a cop's termination.

But a Seattle P-I review of internal police documents in Seattle and other Washington agencies reveals that's hardly the case.

In the five years ending July 2007, just 13 police officers statewide had been terminated and disqualified to serve again as police officers in Washington state because of lying, including the case of a Seattle officer cheating on an exam.

Yet the P-I found more than two dozen other cases in which officers were alleged to have misled supervisors, misstated important facts or fabricated information in fieldwork, internal investigations and court cases without being fired.

Among them, a Tacoma officer accused of falsifying sick-leave reports in 2004; a Federal Way officer who allegedly tried to cover up improperly throwing away drug evidence in 2002; and a King County sergeant accused of making "misleading statements" about her alleged pressuring of a subordinate regarding a public sex arrest case.

In a 2004 case, a dishonesty charge against Federal Way Officer James Keller was sustained in a car accident he was involved in, but he was not fired.

In several other cases, officers were not even investigated for potentially career-ending dishonesty charges despite allegations or other evidence those officers lied, a review of disciplinary cases statewide found. Two Tacoma officers claimed a third officer in 2002 provided misinformation in a police report favorable to a prominent architect. That officer was never investigated for dishonesty, records show.

Prosecutors are required to notify defendants and their attorneys whenever a cop involved in their case has a sustained record for knowingly lying in an official capacity. That requirement came about because of a U.S. Supreme Court decision known as Brady v. Maryland, and thus officers who lie are known as "Brady cops."

But the P-I found that only a few of the state's largest prosecutor's offices keep systems to readily track "Brady cops" in their jurisdictions. The King County Prosecutor's Office only recently began keeping a so-called "Brady list" after the P-I raised questions about one such Brady cop in 2005.

Dishonesty cases against police officers can be complex and difficult to prove, law enforcement officials and police union representatives say. Such cases often involve one person's word against another's. It's hard to take away someone's livelihood based on unsubstantiated claims, they say.

"You've got to be very careful with these cases," Seattle police legal counsel Mark McCarty said, "because they're a career-ender. We assume they're going to be appealed somewhere down the line."

Proving lying can be difficult "because you have to prove the element of intent," McCarty added. "And that's very difficult to prove."

If a police officer is found lying, "termination is appropriate," Seattle Police Officers' Guild President Rich O'Neill said. "But I don't think a lot of what (internal investigators) say is lying really meets that level. I believe when you're going to put a label like 'liar' to somebody, you should be able to prove that convincingly."

Even if an officer is caught lying, he or she might not face firing or the revocation of a police license.

"It really depends on who you lie to and what the circumstances are," said Doug Blair, deputy director of the Washington State Criminal Justice Training Commission, which oversees police certification.

Only certain types of lies -- such as making false reports to other officers, or "false swearing" by dishonesty in official reports or hearings -- warrant an officer having his or her license revoked in Washington, Blair said.

A quirk in state law also makes an officer's lying to internal investigators a disqualifying offense on its own; but when the same violation against an officer is sustained with other offenses, it's not automatically a disqualifier.

"It's a really weird thing that only complicates matters further," McCarty said.

Yet records reviewed by the P-I revealed cases that appeared to meet disqualifying standards falling by the wayside for some officers; while other officers with seemingly lesser degrees of untruthfulness lost their jobs and sometimes their licenses.

The Seattle Police Department opened at least 13 internal investigations from 2005 through mid-2007 involving officers accused of dishonesty, among other allegations, according to internal records provided to the P-I. Of those cases, four remained open as of late last year. Four other cases were "inactivated" when accused officers resigned before the investigations were concluded.

In the remaining five cases, not a single dishonesty charge was sustained against an officer, records show. In at least three of the five cases, lower commanders or then-Office of Professional Accountability Director Sam Pailca recommended dishonesty-related charges be sustained against accused officers. And in a fourth case, a high-profile case involving two officers accused of roughing up a drug suspect in a wheelchair last year, a civilian review board later said internal investigators should have sustained dishonesty violations against two accused officers.

But in each case, Police Chief Gil Kerlikowske opted to sustain only other lesser charges, for which he implemented discipline far less severe than termination.

Requests to Kerlikowske for comment about those cases were not returned Monday.

O'Neill, the Seattle guild president, said none of the Seattle examples are clearly dishonesty cases. Conclusions drawn by internal investigators were largely based on subjective beliefs that accused officers weren't telling the truth.

"All of these things are not clear-cut cases of lying," O'Neill said. "When the chief doesn't follow the OPA's recommendations, it's usually because he got other information that tipped the scales the other way."

Not included among these cases is a more recent Seattle case in which Kerlikowske fired Officer David Marley for a tangle of charges, including dishonesty elements. The convoluted firing stems from Marley allegedly crashing his motorcycle while intoxicated last year, then hiding from Snohomish County investigators, as well as subsequent actions. Marley is appealing his firing.

Some departments are tougher than others when handling firing cases. The Bellevue Police Department has fired at least three officers in the past three years for dishonesty-related charges, including an officer who allowed a drunken teenage robbery suspect to leave the scene of a house party. That officer, Angela Rockcastle, later reported she'd asked a King County deputy also on scene to keep an eye on the suspect while she conducted other interviews. After deputies disputed her account, Rockcastle was investigated and fired. The state later revoked her police license, though she denied wrongdoing at a hearing.

Discipline records indicate police departments might use a dishonesty charge to get rid of officers who aren't liked, while ignoring lies by those who are favored.

A Mountlake Terrace police officer, Jonathan Wender, has accused his department and the Snohomish County prosecutor's office in a federal lawsuit of railroading him with a bogus dishonesty charge because he has favored the decriminalization of some drug use. Wender said in his lawsuit that Snohomish County's procedures for handling "Brady" officers lacks due process protections and standards and, as a result of that, "can and has been utilized to sanction officers for unfair and unlawful reasons."

Wender had been with the department for 15 years when he was terminated Oct. 19, 2005. His lawsuit says he had had no significant disciplinary issues.

He was accused of failing to follow up on a citizen's tip about a drug-growing operation.

"In Sgt. Wender's case, a substantial reason this sanction was imposed and resulted in his termination was his advocacy of drug policy reform, speech that was disapproved of by the defendants but protected by the First Amendment," the lawsuit said.

In the Snohomish County Sheriff's Office, a lieutenant who headed internal investigations -- and who had investigated other officers for lying -- was himself fired after he was accused of tipping off a county bureaucrat to a fellow officer's alleged cheating on disability leave. The lieutenant, Gerald Ross, denied the allegation. The deputy association appealed his termination, but lost, though the evidence against Ross was contradictory. One of the witnesses against Ross was himself being investigated for dishonesty at the time by the department, Ross said.

Dishonesty cases have long been sticky issues in the Seattle department. Seattle has fired officers for dishonesty in the past, including David K. Shelton, fired in 2003 for cheating on a promotional exam and later lying about it. But in several other cases, officers recommended for seemingly supported dishonesty charges have been let go.

In June 2002, an unnamed Seattle officer falsely told a superior his patrol car was significantly damaged because of a hit-and-run driver, when experts said he most likely damaged it backing into a fixed object. Two civilian witnesses were parked near the officer's patrol car and didn't see another vehicle hit it. Five accident review board members didn't believe him, and termed it "false reporting."

Yet the 10-year veteran signed a police traffic collision report, declaring "under penalty of perjury" that his account of the accident was true.

"There is compelling evidence in this case to conclude that the named officer improperly reported damage to his patrol vehicle and submitted a false statement," concluded Capt. Mark Evenson, then with OPA. "The named officer's story of what occurred just doesn't add up."

The department sustained a more generic rules violation against the officer, rather than a dishonesty violation that could have resulted in termination and loss of his police officer's license. The discipline meted out wasn't reported in the documents.

Records show that in December 2002, a Hispanic man claimed an officer punched him in the kidney in the International District, then drove him to Rainier Avenue South and South Dearborn, where he shoved him against the patrol car, injuring his nose. The man called 911 from a store after the officer left.

The officer insisted he didn't drive the man to the second location, but instead said in an official internal investigations interview that he left the man in the International District. However, two other officers were "under the impression" that their colleague was going to drive the man to the second location, and a report said "it is unlikely (the complainant) could have walked to the 800 block of Rainier and called 911 when he did."

Pailca, then OPA director, concluded the officer showed "dishonesty" and likely "transported the complainant (to Rainier) in anger and retaliation." But the department sustained "abuse of authority" rather than dishonesty.

REVERSALS OF FORTUNE
The Seattle Police Department opened 13 investigations involving allegations that officers were dishonest -- a potentially career-ending offense -- from January 2005 through August 2007. Yet in none of those cases were dishonesty charges upheld. In at least three of five cases that were completed, Chief Gil Kerlikowske declined recommendations made by others to sustain the serious dishonesty charges. They include:

Allegations that Officer Richard Roberson inappropriately destroyed evidence in a case involving a trespasser found with cocaine who had been detained by security guards at the Seattle Public Library in July 2005. An initial investigation concluded Roberson admonished the suspect, then released him after improperly confiscating the cocaine and a crack pipe. Roberson destroyed the drugs and pipe without taking the items into evidence or writing a required report, investigators found. The OPA director recommended Roberson also be sustained for violating an "honesty in reports" policy for contradictions between what he told investigators and an admonishment form he issued about the trespasser. Kerlikowske later sustained only the mishandling of evidence charge, giving the officer a 30-day unpaid suspension. Roberson has appealed.

Claims that Officer Arlandi Muhammed left his official sidearm unattended while at a friend's Lynnwood apartment in August 2006, allowing the gun to be fired. An internal investigation recommended several charges, including that Muhammed did not immediately report the incident; illegally removed evidence from a potential crime scene and made "false statements" to Lynnwood police. Muhammed's statements to his own department's investigators about what happened conflicted with what he previously told a Lynnwood detective and with what witnesses say they observed, documents showed. Kerlikowske sustained one charge against Muhammed, for failure to exercise appropriate judgment and discretion, and transferred him as discipline.

Allegations that Officer Salvatore Ditusa improperly used a city car, worked as a flagger without a city permit while off-duty and misused his department sick leave to take unauthorized trips "for the purpose of attending a boxing match." An investigation found Ditusa's "reporting that he was sick, when he appears to have not been, so that he could travel across country, calls into question his integrity and honesty." Kerlikowske sustained only a misuse of city equipment charge and gave him a written reprimand.

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Seattle Post Intelligencer - U29 January 2008

Cops who lie don't always lose

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Seattle Post Intelligencer - U
29 January 2008