System to stem police perjury not implemented
Vaunted task force hasn't met since '97
This article was reported and written by Globe correspondents Laura Dannen, Katie Liesener, and Rachel Lux.
In 1997, leaders in Boston's legal community announced a sweeping crackdown on apparent police perjury -- a problem that had scandalized the city with wrongful convictions, botched trials, and few repercussions for police who lied under oath.
Eight years later, allegations of ''testilying," as such false or misleading testimony is sometimes called, continue to tarnish Boston's criminal justice system -- not because the promised reforms failed, but because they were never implemented.
The legal task force, responding to the findings of a Globe Spotlight Team investigation, had called for cases of false or misleading testimony by police to be referred to the trial court's top judge, and then to police and prosecutors for possible action.
The plan was to test the system in Boston, then expand it across the state. As one task force member pledged, ''This is just a start."
In reality, it was the end.
The task force met once with great fanfare, and never met again. The referral system was never used.
''[In] my three years as district attorney, I have not received a referral from a judicial official," Daniel F. Conley, Suffolk district attorney, said in an interview.
A review of court records shows that he should have, if the system were working. New allegations cropped up almost immediately after the plan was unveiled. And in the first eight months of this year, five Boston police officers were chastised by judges or otherwise identified as giving false or misleading testimony.
There may have been more cases than that. Without the referral system, no one keeps track of how many trials have been tainted by false police testimony. Estimates vary: Some defense lawyers say they see it often, while police officials and prosecutors call it rare.
''I will not tolerate any perjury, by a law enforcement official or by anyone," said Conley. ''It really rocks the foundation of the system."
Boston Police Commissioner Kathleen M. O'Toole, who sees no need now to revive the referral idea, sounded a similarly determined note: ''Nothing is more important than an officer's integrity." And, indeed, several recent cases of misleading police testimony have resulted in department discipline, or other penalties.
But some critics say that too often, still, such cases go unpunished.
''There's no accountability," said Rosemary Scapicchio, a Boston defense lawyer. ''Prosecutors are afraid to call them liars."
''It's a very serious issue," said Suffolk Superior Court Judge Patrick J. King, ''that has led to many scandals in the past, and it's something there's no easy answer to."
The need for a system to combat the problem was underscored within months of the promise to create one.
In April 1998, King threw out evidence in a drug case against a Dorchester man after concluding that Boston Police Detective Michael Feeney had concocted a story about an informant.
Feeney had testified that on Feb. 1, 1997, he witnessed a drug deal between two men in a car on Heath Street in Mission Hill and stopped the driver for questioning. He said the driver told him that he had tried to buy drugs from someone he knew only as ''Earl." The driver, Feeney said, also provided Earl's beeper number, make of car, and an address where Earl sold drugs.
Feeney said he decided, after talking with other officers, that ''Earl" must be Earl Dessesaure, whom police arrested the next day.
But King saw a critical gap in Feeney's story: The detective, in his testimony, conceded that he had not collected some basic information about the driver-turned-informant. There was no name, no address, and no license plate number.
This seemed implausible to King, who ruled that an experienced narcotics detective like Feeney would have, ''at a minimum, searched the driver, asked him for his driver's license and registration, checked for any outstanding warrants, and made note of this information." Feeney's failure to do so led King to conclude ''that the [informant] is a fictitious person."
The judge barred prosecutors from introducing the evidence seized from Dessesaure's car --19 bags of crack cocaine -- and the case against him collapsed.
Following Globe inquiries, the Boston police have, in recent weeks, opened an inquiry into Feeney's testimony in the case, according to Sergeant Thomas Sexton, spokesman for O'Toole.
Feeney welcomes the probe, Sexton said, adding that allegations about problematic police testimony are exceptionally rare.
''There are over 2,000 police officers on the force who testify on a daily basis; 99.9 percent have no problems," Sexton said in a separate interview.
Six years after the Feeney incident, Dessesaure was at the center of another case in which police testimony was challenged.
In 2004, Dessesaure found himself facing new drug charges. US District Judge Nancy Gertner threw out evidence seized at Dessesaure's apartment, ruling that police had conducted an illegal, warrantless search and that Detective John Broderick Jr.'s testimony in the case was ''sloppy, inconsistent, and worse, not credible." Broderick's description of his dealings with informants who fingered Dessesaure was sketchy to the point of unbelievability, the judge said. His statement that Dessesaure, under questioning, admitted to having heroin in his apartment ''simply did not make sense," Gertner said.
Boston Police internal affairs investigators conducted a review of Broderick and deemed the questions about his credibility unfounded, according to Sexton. Sexton said he advised both Feeney and Broderick not to speak to the Globe for this story.
Dessesaure, convicted twice of robbery in the early 1980s, is being held at the Plymouth County Correctional Facility awaiting trial in the drug case.
When the task force first met in December 1997, the effort was hailed as a necessary response to an emerging scandal: A series of Globe Spotlight Team stories earlier that month had detailed seven instances of Boston police giving false or misleading testimony under oath.
In response, the task force, convened by Robert A. Mulligan, the chief justice of the Suffolk Superior Court, devised the referral system.
The hope was that the process itself would serve as a deterrent, a first step toward a sea change in accountability. ''We're pleased with the start, but very, very conscious that this is just a start," William Leahy, chief counsel of the Committee for Public Counsel Services and a task force member, said at the time.
But the momentum for reform faded as soon as public attention shifted.
''There was just that one meeting, certainly no more that I participated in," Leahy said in a recent interview.
''Whether we had subsequent meetings, I don't know," added Mulligan, now chief justice for administration and management in the trial court. ''If I had received a report [from a judge], I would have remembered."
And former Suffolk district attorney Ralph C. Martin II, now in private practice, said he had no recollection of the system he had helped, as a task force member, to design:
''I honestly don't remember anything about this," he said in an e-mail.
One of the cases cited in the original Globe series involved Sergeant Detective William Mahoney, and his misleading testimony in the highly publicized 1996 Donnell Johnson murder trial. Five years later, Mahoney, who is now retired, was at the center of another case of questionable testimony.
In 2002, Superior Court Judge Vieri Volterra ordered a new murder trial for Kareem Tyler as a result of what the judge called Mahoney's ''gross distortion of the truth" before a grand jury.
Mahoney had testified that witness Jakarta Childers picked Tyler's picture out of a photo array during the police investigation of the 1996 murder of 16-year-old Anthony Lovell-Hines. But, as Volterra noted in his ruling, the audiotapes told a different story -- that Childers had picked a photo of someone else.
''Detective Mahoney gave false testimony to the grand jury," Volterra wrote in ordering a new trial.
Mahoney was suspended by the Boston Police Department for 30 days without pay for his handling of the Johnson case. But he has faced no formal charges or disciplinary action in the Tyler case, according to Sexton, the department spokesman. Mahoney's lawyer, Douglas Louison, said his client would never ''intentionally misrepresent the facts in court testimony."
There have been other allegations of false or misleading police testimony that have been investigated -- and officers disciplined.
In January, Conley, the Suffolk district attorney, dropped charges of assault and attempted murder against Jefferson Charles after determining that Boston Detective Yves Dambreville had made inconsistent statements at trial about whether the victim of the assault had identified Charles from a photo array.
Charles was released after spending two years in jail awaiting trial. Dambreville has been placed on administrative leave and his handling of the case is being investigated by Boston police internal affairs, Sexton said.
Dambreville is also represented by Louison, who said he is ''confident there will ultimately be a conclusion that there was no misconduct."
Meanwhile, three other police officers have been penalized this year for allegedly making false or misleading statements in criminal cases:
Officer Joseph Polito and Sergeant Joseph LeMoure were convicted in March of recruiting people to give false eyewitness accounts in a bid to back up LeMoure's account in a case in which he is accused of assaulting a civilian. LeMoure was also convicted of perjury.
Patrolman John DiSciullo will not be allowed back on the force after an April ruling by the Supreme Judicial Court upheld his termination for falsely alleging in police reports and sworn arbitration testimony that he was assaulted by a couple he had arrested in 1997.
Detective Miguel Pinto pleaded guilty in February to lying in a police report about witnessing a cocaine deal. He was sentenced to two years probation and has resigned from the department.
Though allegations of false or misleading testimony continue to crop up, Sexton said the Boston Police Department sees no need for the sort of reporting system such as was contemplated eight years ago. The department, he said, ''has a very good working relationship with the district attorney's office regarding concerns with perjury."
And O'Toole underscored her department's resolve to deal with the problem, whenever it arises.
''This department has conducted and will continue to conduct exhaustive investigations into all allegations of impropriety and untruthfulness," the commissioner said, in a statement.
But other observers say a formal referral system remains a good idea. Stanley Fisher, a Boston University law professor and former trial lawyer, says it would be a useful step in ''restoring the erosion of public confidence in police testimony."
And some members of the original task force said they hope the department will reconsider its resistance to the reforms.
''There's a great opportunity here with a new police commissioner who seems willing to make institutional changes," Leahy said.
Laura Dannen, Katie Liesener and Rachel Lux are graduate student journalists at the Boston University. They were supervised on this project by Mitchell Zuckoff and Dick Lehr, former Globe staffers and Spotlight Team members, who are on the BU faculty. 