Police Credibility on Trial After Suspect O.C. Cases

Dist. Atty. Investigator Robert Davis testified that on the day Aissa Wayne and her boyfriend were attacked, Wayne’s ex-husband, Dr. Thomas Gionis, was in his limousine when calls from a private detective who set up the assault came in on the car phone. He was sure about that key piece of evidence, he said, because Gionis’ chauffeur had told him so.

Then, Davis fell into the maw. Defense attorney John D. Barnett confronted him with a tape recording of his conversation with the chauffeur. No statement placing Gionis in the limo was on the tape.

Davis squirmed in his seat. Gionis winked at the defense staff.

Thursday, the jury deadlocked 9 to 3 to convict and the holdout jurors said they thought Davis was not truthful on the stand.

The devastating cross-examination in the Gionis case is not an isolated example of a law enforcement officer being impaled on his or her own words by a skilled defense attorney. Police have been there before.

Blame it on overwork, honest mistakes, lapse of memory or just plain lying, the credibility of Orange County law enforcement officers and the quality of their investigations have been called into question in a number of local cases, including some high-profile ones.

Although the vast majority of police are honest and professional, serious errors and inaccurate statements going to the heart of guilt or innocence have occurred in cases ranging from the simple writing of traffic tickets to major felony matters and civil lawsuits.

“We see it a fair amount of times,” said Jack Earley, a longtime Orange County lawyer and spokesman for California Attorneys for Criminal Justice, a statewide association of defense counsel. “In the perfect system, police should gather evidence without necessarily assuming guilt or innocence, but our justice system has not evolved that way.”

“It’s the one thing we really have to protect against,” said Laguna Beach Police Chief Neil J. Purcell, president of the Orange County Chiefs’ and Sheriff’s Assn. “We must assure the public and the judicial system that our integrity and honesty is unquestionable. No defendant is worth an officer lying or stretching the truth. . . . Like Jack Webb says, ‘Just the facts, ma’am.’ ”

Five days a week, in scores of courtrooms across the county, the accuracy of police officers is routinely challenged by defense lawyers, scrutinized by judges and weighed by jurors.

Their work holds up in most cases, but in some it does not, and the mistakes are costly considering the power that police officers have over the average person. Those charged with crimes based on inaccurate statements or shoddy investigation must fight the stigma of arrest and endure financial hardship until they are either acquitted or the matter is dismissed.

In civil cases, plaintiffs alleging police misconduct have been removed from lawsuits because of erroneous statements by law enforcement officials. That happened to George Wright, a Rancho Santiago College instructor, who alleged in a federal civil rights suit in the mid-1980s that Orange County Sheriff Brad Gates improperly investigated him because he was a political opponent.

Gates and two deputies said in sworn court affidavits that they never ordered or participated in the surveillance of Wright and other department critics. Partly based on those statements, Wright was thrown out as a plaintiff.

When evidence to the contrary later surfaced, Gates and the deputies recanted their statements in sworn depositions and in court in 1988. Federal authorities investigated for the possibility of perjury. No charges resulted.

“It was a bonehead mistake,” said Sheriff’s Lt. Randall Blair, who was linked to the surveillance of Wright and a newspaper reporter. Gates said he honestly believed there had been no investigation and blamed the error on inaccurate information from subordinates.

Said Wright: “I had a considerable amount of money invested in that lawsuit when I was kicked out of it.”

Wright did not rejoin the lawsuit, but complained to the FBI. The other plaintiffs, including a former Orange County Municipal Court judge, settled the case for $375,000, a portion of which they gave to Wright even though he had been dismissed from the suit.

Similar inaccuracies have affected other cases:

* In a traffic matter handled by defense lawyer Ronald Brower, police said there was a stop sign where there wasn’t and the officer’s report said the streets formed an intersection when they actually ran parallel.

* In two recent felony cases, police ignored fingerprints that would have exonerated the accused well before the cases were filed, according to the county public defender’s office. One case was dismissed; the other ended in acquittal.

* In another major felony prosecution, an Anaheim officer whose gunfire wounded a baby earlier this year said in sworn testimony that the suspect had pointed a gun at him twice. Three witnesses, including the child’s mother and an observer in a police helicopter, said they did not see a gun pointed at the officer before he fired. A charge of assault on a police officer was dismissed as a result, and a judge made a finding that the officer was not believable in this case.

* The Sheriff’s Department faces allegations that a deputy and other county personnel deliberately destroyed a key section of County Jail videotape that purportedly would have shown deputies beating an inmate without provocation. The tape, which was cut and crudely spliced back together, was evidence in a federal civil rights suit. The county has claimed that a malfunctioning videocassette player accidentally damaged the recording.

No statistics are available on how many times law enforcement officers have embellished testimony, misstated the facts or lied to help make a case. But prosecutors, judges and defense lawyers say credibility problems involving police are not all that uncommon.

“It was one of the constant battles I had with police and investigators,” said Nick Novick, a retired prosecutor who headed the district attorney’s branch office in south Orange County. “Like in any other business, most are pros, and most cops are ethical and straightforward, but you have those who try it.”

According to court records, hundreds of misdemeanor prosecutions and scores of felony cases are dismissed every month in Orange County courts for a variety of reasons. A number of those, defense lawyers say, are kicked out because of poor investigation or credibility problems.

Proven cases of fabrication of key evidence remain rare and in the last decade, there have been a handful of investigations into whether an Orange County law enforcement officer committed perjury.

Local prosecutors only recall one case in which an officer was convicted of perjury and fabricating evidence--a Buena Park police sergeant who falsely linked people to crimes by saying their fingerprints were found at the scene.

More common are embellishment, exaggeration, stretching the facts and shoddy investigation. Judges, police and attorneys blame some of this on human error, overwork, inevitable memory lapses and pressures to make a case that can affect an officer’s objectivity.

“A police officer on the street reacts instantly. They may fully believe in their mind that a gun was pointed at them when it wasn’t,” said North Municipal Court Judge Margaret Anderson, who handles felony preliminary hearings. “You can sincerely and honestly believe something happens to you, but your perception is wrong.”

Police say some investigators and officers are incredibly busy, handling many cases at a time. Often, they come to court to testify months after a case has begun and are asked by the defense to accurately produce details about the crime.

But criminal defense attorneys blame some of the inaccuracies on incompetence and something else--a presumption that a person is guilty from the start, which can improperly influence the investigation.

“Police manuals say they must accumulate all evidence and not try to point the finger at someone too soon,” said Ron Talmo, a civil rights attorney and assistant dean at Western State University College of Law based in Fullerton.

“But if you drive down the street and you’re weaving, is the cop going to ask you if you had a sneezing attack? If he sees certain symptoms--watery eyes, slurred speech--is he or she going to ask if you have palsy or anything else? No, because none of that helps the cops.”

One of the most serious controversies involving the truthfulness of police occurred in 1985 after Newport Beach officers boarded and commandeered the Sea Dolphin, a 45-foot ketch loaded with six tons of marijuana. It was the largest pot seizure in the city’s history.

Police said they had enough cause to search the sailboat because there was a marked 20-minute mooring restriction that was violated and the boat was riding low in the water. One officer said a deckhand blurted out, “Search and you’ll find 20,000 pounds of pot” when police stepped onto the boat.

Court testimony indicated, however, that the mooring sign was faded and partly obliterated, making it difficult for anyone--police or boaters--to find out whether there was a mooring limit. Case records show that doubt was cast on whether the deckhand made such an obviously incriminating remark because it had not been mentioned in police reports or officials’ reasons for seeking a search warrant.

To make matters worse, a few hours after Harbor Municipal Court Judge Russell A. Bostrom ordered the faded sign to be photographed for the case, it was repainted by Newport Beach city employees before the order could be carried out.

Bostrom subsequently ruled that the police made an illegal search and threw out the case. He also held one detective in contempt for making contradictory statements on key parts of the case and criticized other officers in the investigation.

“Clearly prima facie cases of perjury could be alleged against two and possibly all three of the officers as well as possible charges of conspiracy to obstruct justice and the willful destruction of evidence,” Bostrom said in court.

The bitterly contested dismissal was upheld on appeal and the last of the case was kicked out two years ago. Appellate justices concluded that the police search made “a mockery” of the Constitution, while police said the case was kicked out over a “technicality.”

Court records show that Municipal Court Judge Christopher Strople overturned the detective’s contempt citation and referred misconduct allegations to the Orange County Grand Jury. No perjury charges resulted.

“If you don’t have a tape or a photograph, it is hard to overcome this kind of thing in the system,” said Brower, a former deputy district attorney.

Although obviously inaccurate statements have been made in cases, prosecutors also say that perjury or lying under oath is hard to show and certain legal requirements must be met before charges can be filed.

“It requires two witnesses or one witness plus sufficient corroboration. You get into a lot of technicalities and it is one of the more difficult crimes to prosecute,” said Deputy Dist. Atty. Wallace J. Wade, head of the district attorney’s special operations unit, which looks into allegations of misconduct by public officials.

The district attorney’s office declined to discuss Investigator Davis’ performance on the witness stand in the Gionis case.

But Davis’ testimony “is a shock” to Newport Beach Chief Purcell. “It raises some real concerns with chiefs and those who might have read about it,” Purcell said. “I would expect officers to have good recall and memory of key phone calls.”

Central to the prosecution’s case were telephone records showing a pattern of calls between Gionis, a private detective and two gunmen who attacked Wayne during a bitter child-custody dispute.

Davis’ testimony placed Gionis in the limo when calls came in from one of the alleged henchmen hours before the attack. After the tape contradicted Davis, Davis said Gionis must have made another phone call to talk to the chauffeur.

The defense put on unrefuted evidence of Gionis’ whereabouts, showing that he was not in the limo the morning before the assault. There was no record of a second phone call by Davis to the chauffeur.

“Mr. Davis sat right here. You heard him. Fourteen years of law enforcement. Member of the organized crime unit,” Barnett told jurors in his closing argument. “Why did (the prosecutor) ask him those questions? Because he wanted to impress you. Those are impressive credentials. . . . But you know that Mr. Davis is lying. Because we proved it. But folks, if you hadn’t heard that tape, you would never have known.”

When serious questions about an officer’s honesty arise, they can be investigated internally by the law enforcement agency or weeded out of cases before they become a problem. Sometimes it means dismissing cases or dropping charges to set the record straight.

Prosecutors have a legal obligation to rid their cases of potential inaccuracies damaging to a case and must disclose to the defense evidence that might relate to the believability of witnesses and the police.

“We have people trying to resolve these things on our side of the fence before charges are filed,” said Chief Assistant Dist. Atty. Maury Evans. “If we find something out after that, we try to resolve them before trial.”

Earley, the spokesman for the defense counsel association, said, for example, that in one death penalty case a map he thought could help corroborate the alibi of the murder defendant was placed in a Garden Grove detective’s desk and apparently forgotten.

The accused, Son Van Ngo, a bodyguard, claimed that he shot several associates who threatened his life for refusing to participate in a home-invasion robbery. He said a map to the home was made by one of the victims.

During jury selection, Earley said, another police officer found the map, which was then turned over to the defense by the prosecution. Ngo was convicted of voluntary manslaughter and spared the death penalty.