False testimony

CHARLOTTE – Beneath the surface of what appeared to be a routine driving-while-impaired case in Mecklenburg District Court lay what defense attorneys say is an ugly flaw in the justice system.

In an April 15 hearing in front of Judge Sean P. Smith, Charlotte-Mecklenburg Police Officer Barry D. Grimes testified that he had administered two field sobriety tests, and the driver flunked both.

But that wasn’t true.

And even when Allen Brotherton, a Charlotte defense attorney representing the driver, showed in court a dashboard videotape that included no evidence of those tests, Grimes didn’t budge. He insisted the driver failed the tests. (See “Tape destroys officer’s DWI testimony,” Page 5.)

“I gave him every opportunity to make certain his recollection was as strong as he was claiming,” Brotherton said. “I asked him ‘Are you sure?’ He said he remembered it clearly. He was unequivocal.”

Now Grimes is paying a price for his tainted testimony. At a May 2 show-cause hearing, Smith convicted him of criminal contempt and sentenced him to a 30-day active prison sentence and a fine of $500.

Grimes, who has been suspended without pay pending the results of an investigation by the Charlotte-Mecklenburg Police Department, is appealing the conviction. (See “Allies at the start, adversaries on appeal,” Page 5.)

It is an isolated case, and no one is claiming a pattern of false testimony by Charlotte-Mecklenburg police officers. Yet, Brotherton and others say, the case is disturbing for what it may show about the justice system’s lack of protection for defendants accused of minor crimes.

Brotherton said the Innocence Project, a national organization that investigates mostly high-profile felony cases, has conclusively established the innocence of hundreds of people convicted of crimes.

“Can you imagine,” Brotherton asked, “how many are (wrongly convicted) in the mundane everyday district courts?”

In the current session of the North Carolina Legislature, lawmakers passed, and Gov. Beverly Perdue signed into law, the so-called good faith exception to the exclusionary rule.

The good faith exception, which becomes effective July 1, means that even when a trial court finds that an officer made a “substantial violation” under Chapter 15A of the General Statutes, “[e]vidence shall not be suppressed… if the person committing the violation… acted under the objectively reasonable, good faith belief that the actions were lawful.”

It is, in effect, a law that says the state trusts police to do the right thing. But when one officer goes rogue, as Charlotte defense attorney Bill Powers put it, “You start seeing a devil behind every bush.”

Powers said there are bad apples in every profession. “These problems are inherent with the condition of the human heart.” But, he said, “That’s why we have the exclusionary rule.” The exclusionary rule serves as an effective check against the kind of conduct evinced by Grimes.

In the case in which Grimes testified, Judge Smith excluded Grimes’ testimony about the field sobriety tests, which eliminated evidence that Grimes had probable cause to arrest the driver, thus destroying the state’s case.

Raleigh defense attorney John Fanney said the exclusionary rule was designed to prevent the very kind of harm that a rogue police officer can cause. “When an officer acts outside the rules of acceptable behavior, the exclusionary rule is designed to punish the officer. The only way to do that is to exclude the evidence.”

Fanney said there are very few checks on police power, especially in the context of DWI’s.

Brotherton said the legal system has been contorted to deal with DWI’s. He said defense attorneys call driving-while-impaired cases “the DWI exception to the Constitution.”

He said it was no coincidence that the Grimes matter happened in the context of a DWI case.

Fanney said that in a DWI case, the state controls all evidence. “In those cases, it really comes down to the integrity of officer,” he said.

And when an officer’s integrity is in question, he said, the integrity of the system is preserved by a trial judge’s ability to serve as a check against the admission of questionable evidence.

“The Legislature may see the exclusionary rule as a technicality,” Fanney said, “but these rules are more than technicalities. They are the only way to preserve the integrity of our system.”

Judge Smith said as much at the show-cause hearing, calling police officers professional witnesses who enjoy “a sacred trust courts must be vigilant at defending.”

Without that trust, Smith said, courts lose their integrity. “Without trust in a police officer’s word,” he said, “we at the courthouse are wasting our time.”

Brotherton said conservatives in the Legislature should be working to constrain the government and protect the individual rights of citizens, instead of seeking to weaken the exclusionary rule.

Powers sees the Grimes case as illustrative of larger separation-of-powers issues.

“We have a balance of powers between the courts, the legislative and the executive branch. When one of those branches cedes power to another branch, the natural balance between the powers is thrown off,” Powers said. “That’s exactly what we’re talking about with the exclusionary rule. [Grimes] is an isolated incident, but it’s a perfect example of why we have this balance of powers, and why we have the exclusionary rule.”