It is fascinating to me that a cop would ever consider lying about a case. Granted, there is not a lot of information in this posting that let's us know what the lie was, but as a former prosecutor for the Travis County Attorney's Office, I understand that it must have been quite a substantive lie or misrepresentation for the DA's office to VOLUNTARILY OFFER to vacate the conviction. Normally, a criminal defense attorney would be the one moving to have a conviction vacated, NOT the DA!
KXAN reported that an Austin police officer is under investigation for allegedly lying about a case that led to the criminal conviction of an Austin man.
Ernest Smith was convicted in September on drug charges, but the district attorneys office learned something was wrong, and it had to do with one Austin cop. It's unclear exactly what this officer may have lied about, but it was big enough for the district attorney to do something it rarely does.
The district attorneys office initiated a conversation with Smith's defense attorney and offered to vacate a judgment on his conviction based on new information. Essentially, Smith's conviction from September is going to be withdrawn. APD and the DA are not sharing too much information with KXAN either but we do know this... Sources say that officer lied about something in the drug case, so District Judge Bob Perkins dropped the case entirely some three months after Smith was convicted.
But friends of his say it's too late. That's because Smith is still in jail on unrelated drug charges. It's also unclear how this might affect the other cases this accused officer is involved with.
It is fascinating to me that a cop would ever consider lying about a case. Granted, there is not a lot of information in this posting that lets us know what the lie was, but as a former prosecutor for the Travis County Attorney's Office, I understand that it must have been quite a substantive lie or misrepresentation for the DAs office to VOLUNTARILY OFFER to vacate the conviction. Normally, a criminal defense attorney would be the one moving to have a conviction vacated, NOT the DA!
Now, why is it fascinating to me that a cop would lie in a case? Simply put, we have nothing to gain by lying. If a case is not strong enough to warrant a conviction, then the person should not be convicted. It does not reflect negatively on the officer that one of his "collars" or persons arrested is not convicted, unless of course said officer is on an "ego trip" and takes the lack of conviction personally. Consider the following scenario (written in an imaginary police report):
1) Officer responds to a disturbance at an apartment complex, where it is reported a Suspect is selling drugs.
2) Officer meets with the Suspect first and justifiably conducts a "pat-down" or "frisk" of his outer clothing to ensure there are no weapons present that could endanger the officer.
3) Officer feels a lump in the Suspects pocket and based off the officer's "training and experience" realizes that the substance is an illegal narcotic. Now, we have invoked the "plain-touch" rule... a close cousin to the "plain-sight" rule...
4) Officer reaches into the pocket and pulls the contraband out and arrests the Suspect for possession of the narcotic...
5) Valid arrest?
Setting aside any political or personal agendas, the above scenario is almost a textbook setting for what happens to officers on an almost daily basis. Agreed? I will guarantee that somewhere in this great State of Texas that there is at least one person arrested under facts like these every day! Now, fast forward to trial...
The Officer testifies to the above facts but during the direct examination of the prosecutor, the officer embellishes a little bit on the story. In fact, the Officer says, "Ya, the Suspect resisted me when I tried to handcuff him. In fact, he pushed me in the chest, and because of where his hand hit my sternum, it caused pain."
At this point, the officer has testified to elements that would warrant filing assault on a peace officer on the Suspect. But, it is critical to determine whether the facts of the resisting were in the report? What about the pain? The injury? If not, trust me, it did not happen. That is the most basic of training that police officers receive in an academy... write in detail and be thorough. Do not omit facts.
So what, you may be asking, what does this do to the officer? Won't the Suspect still be convicted for the drug possession, even if the the resisting charge is dropped or never filed? Yes, probably... but I challenge you to consider this, "Should Suspect be convicted or should he receive a stiffer punishment based off the facts now presented?"
Now I could go on for pages debating the last question, but I won't... I want you to think about it.
To summarize, what happened here is the officer may have merely made a mistake by omitting the facts from the report, and if that is what happened, that is what he should have explained. Or, he could have truthfully stated that he did not remember the details and left the case alone ... but above all things, the officer should not lie about the facts of the case or enhance them with more detail ....
After all, what does the officer bring to the witness stand: Credibility? Integrity? A willingness to "protect and serve"? Or, is it more of a desire to "win at all costs"?
I challenge anyone reading this, especially cops, to consider what it is that they stand for and why they do the job that they do... as an officer, I assure you, I care more about my credibility and integrity than I do a desire to "win" a case. In the end, it does not matter to me if the person I arrested is convicted. For me, what counts is that I did my job and that I did not violate anyone elses rights. And as for the person that I took to jail in a given shift, that person is not sub-human... they just made a mistake ... or they just got caught... but to lie or even stretch the truth a little bit... that brings an entire system of justice crashing down on itself...and brings the officer's credibility down, jeopardizing every case he has ever touched!!!
In the end, I am a Texas attorney. I am also a Texas cop. And, I do believe that the system works, when all the parties to the system fulfill their respective roles. But, I also am excited when I see that someone, taking advantage of his position or authority, loses credibility and is dismissed or disciplined. Yes, I am a defense attorney. Yes, I am a cop. But first and foremost, I am an honest person who believes in doing what is right and just under the law, and I challenge others to do the same....
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